Many people are aware that DAPA and Expanded DACA are currently on hold due to pending litigation. What people may not know is that DAPA and the expansion of DACA are only parts of President Obama's 2014 Executive Action on immigration. The Executive Order is actually comprised of a series of initiatives to reform the immigration system. Not all of the initiatives have been blocked or put on hold. One of the more prominent pieces of the package that received less attention but remains very important to a lot of people-the expansion of the provisional waiver-remains intact. In fact, USCIS just recently released a copy of the proposed rules and is requesting comments.
The Board of Immigration Appeals (BIA) recently issued an important precedential decision in Matter of J-H-J, 26 I & N Dec. 563 (BIA 2015) that affects individuals who may need to file criminal waivers in order to stay in the United States. This is a notable decision because the Board has retreated from its former position and withdrawn from two previous decisions regarding the same issue.
One aspect of the I-751 Extreme Hardship waiver that conditional green card holders should be aware of is that divorce is not a prerequisite in order to file under this ground. Whereas a conditional resident who intends on filing for the good faith marriage exception must ordinarily be divorced before filing the I-751, an individual who wishes to self-petition based on hardship can still be married to the spouse who originally petitioned for his/her green card. For example, it is not uncommon for a conditional resident to find him/herself in a situation where the US citizen /lawful permanent resident spouse refuses to cooperate or join in the I-751 petition to remove conditions. The couple may be experiencing marital difficulty, maybe even considering divorce, but no concrete steps have been taken towards a dissolution of the marriage. In this particular type of instance, especially if the green card is about to expire, the conditional resident would not be eligible to file under the good faith marriage exception because that waiver generally requires the divorce to be finalized. (There are limited exceptions where USCIS may accept the waiver if a divorce is in progress, but that is beyond the scope of this discussion.) If, however, the conditional resident can demonstrate extreme hardship, he/she may be eligible to file the I-751 on this ground.