Export Law and conditional permanent resident

[taintmoun 0]

Hello, this is my first time posting. 

 

Currently I am a conditional permanent resident, and I am still waiting for my 90 days windows which would be Mid April to apply for I 751 (So within a month, I will be eligible to file for I751). 

 

Lately, I was offered a position from an employer who is compliant with US Export Law, where access to confidential information is limited, and therefore requires employers to hire US Person employees. 

Without going to specifics, this employers has a contract with Department of Defense, where the contract requires any employees to be US Persons, which is often interpreted as Green Card Holder or Citizens. 

 

During interview process, they asked me to bring either Green card or US Passport (or birth certificate), and specifically they noted just state driver license and social security card won't be acceptable to have interviews onsite, which may impact my employment if I dont bring acceptable documents to show I am at least permanent resident or more. When I was present onsite, the security staff took my green card and read receipt number to run whether or not the receipt is valid in their internal system (that I have no clues since I was not able to see his monitor screen), but it did seem that A-number was not enough for some reasons (because he had to read back side of my conditional green card). After clearing with my info, the security staff reminded I have roughly 5 months, and I responded I will just have to apply. 

 

During onsite interviews, interviewers asked me if I am a citizen or a permanent resident, and I did say I am a permanent resident. Generally, this question would be regarded as an unlawful question, and I would prevaricate the question saying that I am eligible to work in USA if it was just normal employers (and potentially complained to applicable government institution), but the hiring manager specifically explained why this is important, which convinced me that the hiring manager was interested in hiring me (because if I wasn't even close to hiring, why taking a risk by asking this kind of controversial question?) 

 

What I did not tell the interviewer panels is that I am a conditional permanent resident, where my status will be extended and most likely my case is approved (Yes we have a good marriage and recommended evidences), but I learned a lesson in very hard way that discussing immigration status in details to potential employers is never a good idea. So I simply did not get engaged about it too much after I replied I am a green card holder. Even though you are perfectly fine in terms of immigration, just telling immigration status in detail gives them very negative impression due to most of Americans having rare to zero ideas of how immigration system works unless they are immigrants by themselves or very unusual, and they feel uncomfortable to talk about uncertainty when dealing with employment that emphasizes certainty. 

 

So my question is.... 

will I be fine to continue for this particular employment as a conditional permanent resident? I know conditional permanent resident is treated the same as permanent resident as the status says "permanent resident". However, it is well-known that conditional permanent resident is not allowed to join Air Forces or Navy until removal is lifted during I 751, so I am starting to worry that this employer may refuse me for employment when they see my green card expiration date. 

 

Does anyone has similiar experiences? 

 

Any comments would be appreicated. 

 

[H-M 169]

Firstly, I am not a lawyer and this is not legal advice. I am also currently dealing with a similar situation, so I have tried to research this topic. 

 

By US Export Law, I think you are referring to compliance with ITAR and EAR regulations. Both use a similar definition (per 22 CFR §120.15 or 15 CFR §772.1 ) of "U.S. person" which includes lawful permanent resident as defined by 8 U.S.C. 1101(a)(20).

 

Now, as per 8 CFR §216.1, conditional permanent residents have the same rights & privileges as being "lawfully admitted for permanent residence" defined under 8 U.S.C. 1101(a)(20). So in my opinion, the definition of "U.S. Person" under ITAR & EAR regulations should also include Conditional Permanent Residents.

 

The facilities/buildings of companies that work on DOD/DOE projects may have restricted access to "U.S. person" only in order to comply with ITAR/EAR. That is why I believe you were asked to bring your GC to come for the on-site interview. 

 

Also the employer is allowed to ask you questions in order to pre-screen job applicants that are not "U.S. person" and  would require export licenses for ITAR/EAR compliance. Typically this may include questions regarding citizenship and immigration status.  8 U.S.C. 1324b(a)(2)(C) allows for this exception. However, they cannot discriminate against you based on ITAR/EAR requirements once you fulfill the definition of  "U.S person". Here is an example of a recent case where DOJ fined an employer for doing this:

https://www.justice.gov/opa/pr/justice-department-settles-immigration-related-discrimination-claim-against-international-law

 

The LPR status does not expire when the 2yr conditional GC expires, as long as an I-751 petition is properly filed & it is pending. So you would still be under the definition of "U.S person" after you file I-751. The expired 2yr GC +  NOA1(extension) letter can be used as proof of LPR status.

 

So I think you should be okay for this job.  Good luck!

 

Lastly, my above opinion does not apply for any job requiring a security clearance such as Secret, TS/SCI. Only U.S. Citizens are eligible for these, unless you qualify for a "rare" exception.

 

Here are the detailed US code/regulations cited above:

 

22 CFR §120.15   U.S. person.

U.S. person means a person (as defined in §120.14 of this part) who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States. It also includes any governmental (federal, state or local) entity. It does not include any foreign person as defined in §120.16 of this part.

 

8 U.S.C. 1101(a)(20)

The term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

 

8 CFR §216.1   Definition of conditional permanent resident.

A conditional permanent resident is an alien who has been lawfully admitted for permanent residence within the meaning of section 101(a)(20) of the Act, except that a conditional permanent resident is also subject to the conditions and responsibilities set forth in section 216 or 216A of the Act, whichever is applicable, and part 216 of this chapter. Unless otherwise specified, the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent residents, including but not limited to the right to apply for naturalization (if otherwise eligible), the right to file petitions on behalf of qualifying relatives, the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed; the duty to register with the Selective Service System, when required; and the responsibility for complying with all laws and regulations of the United States. All references within this chapter to lawful permanent residents apply equally to conditional permanent residents, unless otherwise specified. The conditions of section 216 of the Act shall not apply to lawful permanent resident status based on a self-petitioning relationship under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(b)(ii), or 204(a)(1)(B)(iii) of the Act or based on eligibility as the derivative child of a self-petitioning spouse under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act, regardless of the date on which the marriage to the abusive citizen or lawful permanent resident occurred.