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I-9 E-Verify Immigration Compliance

OSC on Re-Verification of Conditional LPR; Bruce Buchanan, Siskind Susser

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The Office of Special Counsel (OSC) has recently been busy issuing many Technical Assistance letters. In this situation, an employer requested an opinion as to what to do when an employee, who is a conditional legal permanent resident (LPR), will not, in the employer's opinion, be able to file for an 1-751 waiver to remove the residency conditions by the expiration date on the employee's green card because the employee's divorce is not yet final. The employer had informed the employee that upon the green card's expiration, he will not be allowed to work until his I-751 waiver request has been filed and he has received his extended work authorization. The OSC cited to USCIS guidance, which provides a conditional LPR who is separated from his or her spouse may file a Form 1-751 prior to the divorce becoming final, though the conditional LPR will have to establish that the divorce has become final by a deadline set by USCIS in adjudicating the petition. Further, USCIS regulations provide, "Upon receipt of a properly filed Form 1-751, the alien's conditional permanent resident status shall be extended automatically, if necessary, until such time as the director has adjudicated the petition." 8 C.F.R. 216.4(a)(1). Thus, any conditional LPR who has properly filed a Form 1-751 remains a conditional LPR at least until a decision is made on his or her Form 1-751. Furthermore, the OSC advised the employer that it could not request further documentation from this conditional LPR without exposing itself to citizenship status discrimination.

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