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What if my husband or wife does not show for my Green Card Interview?

| Mar 18, 2015 | Common Immigration Questions and Problems, Green Cards |

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What happens if my spouse fails to appear for my green card marriage interview?

For marriage-based adjustment of status cases, the petitioning spouse and the immigrant husband or wife are required to appear together for the interview. The purpose of the interview, among other things, is to determine whether the parties have a bona-fide marital relationship, and not just one entered into for immigration purposes. If the case is within the jurisdiction of New Jersey, the interview will be conducted at either the Newark District Office or Mount Laurel sub-district office. Life, unfortunately, is not predictable and there may be a situation where the couple or one spouse may not be able to attend the interview. What happens to the green card case in this instance?

Request to Reschedule

If there is a foreseeable conflict that would prevent one or both spouses from attending the interview, the parties should request that the interview be rescheduled well in advance. 8 CFR 103.2(b)(9) provides that “the applicant, petitioner, sponsor, beneficiary, or other individual may appear as requested by USCIS, or prior to the dates and times for…the interview: (i) the individual to be…interviewed may, for good cause, request that the…interview be rescheduled.” It is important to note that the regulations state “for good cause,” which should be taken to be mean that an interview will not be rescheduled for frivolous reasons or just because it is inconvenient for the parties. For example, generally speaking, a spouse’s refusal to take off from work does not ordinarily constitute a reason that goes over well with USCIS, especially considering that interviews are normally conducted only Monday through Friday during business hours.

What happens if the couple fails to appear for the interview?

If the couple fails to appear for the marriage interview and has not made a legitimate request to reschedule the interview (and presumably received a response), the case is in jeopardy of being denied, thereby resulting in any related benefits (ie., associated work permits) being canceled. Even if only one spouse can attend the interview, he or she should be present and if necessary, make the request to reschedule in person if he/she has not already done so.  Hopefully, USCIS will entertain the request then and there.  Once a case is closed out or denied for abandonment, the case is, for all practical purposes, done.

What happens if a case is denied for abandonment?

A decision by USCIS to deny a case due to abandonment may not be appealed. Two options are either to refile the case (filing fees would have to be paid over again) or possibly file a motion to reopen under section 103.5 of 8 CFR. The benefit of filing a motion to reopen is that any associated filing or priority date would potentially be preserved whereas a new application would be accorded an entirely fresh priority date. In some cases, priority dates may be especially important in terms of a person’s eligibility to adjust status. Also keep in mind that while a decision to deny a case due to abandonment does not preclude the parties from filing a new application, the fact that the case was denied for this reason is still relevant when the officer adjudicates the second case. The regulation states that the “facts and circumstances surrounding the prior benefit request shall otherwise be material to the new benefit request.”

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.

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