What happens if I don’t go to green card interview

[Summer41 0]

My husband and I opened a filed for adjustment of status. By the way in this case I am not the petitioner. I got married because I love my husband, very much! So our marriage is authentic! But unfortunately we have been struggling a lot due to his abuse  to weed.  And he rather have weed than me! The case is that I feel that I can not say anything about it  even though it’s my house as well since I pay for half of everything but he wants to have his staff ( weed staff)everywhere on the house. And this got worse after we got married, he feels like I am on his hands because he is the petitioner.Anyway he broke up with me , he does not want to be molested, and we have a pending interview. I won’t ask him to go and pretend but  I just want  to know what are the consequences if I go back to my country. I already have my work authorization and advance parole document. But I wouldn’t  like to be penalized for 10 years since I love traveling  and wouldn’t be fair! Please give and advise! Thanks

[geowrian 22,337]

This is posted in the AOS from K-1 visa forum, so I'm assuming you came on a K-1 visa...

 

If you want to return home, you are free to do so at any time. You can handle a divorce from abroad, if necessary.

As long as you have not overstayed by 180 or more days, there is no ban upon departure. Time while you were in status (first 90 days from entry) or your AOS was pending do NOT count towards that number.

[Summer41 0]

Dear Geowriam, thanks for writing! I came with a J1 visa and  I have stayed for more than 180 days. But We started all this process before my visa expired. I went to an inmigración lawyer and she said I am going to be banned for 10 years, which is not fair since I got legitimately married! 

[milimelo 4,486]

Moving to AOS from work, student, tourist visa. 

[Summer41 0]

Student visa 

[gramercygreen 34]

There seems to be two questions here: what happens if OP doesn’t go to the interview (in title), and can OP go back to their home country (in post).

 

(1) I assume that if you don’t go to your interview, the USCIS will deny your case. You will probably have to leave the country if your visa has already expired. That being said, I don’t think they’ll place a ban on you unless they found proof of some kind of foul play.

 

(2) You should be able to go to your home country and return to the US on the AP, as long as your AOS case is pending.

Edited April 26, 2020 by gramercygreen

[NikLR 13,227]

5 hours ago, Varg541 said:

Dear Geowriam, thanks for writing! I came with a J1 visa and  I have stayed for more than 180 days. But We started all this process before my visa expired. I went to an inmigración lawyer and she said I am going to be banned for 10 years, which is not fair since I got legitimately married! 

As long as the AOS was filed before you visa was expired, you do not have overstay.

365+days = 10 years. 

180-365 = 3 years.

 

You can get divorced.  You will have to leave if you dont finish your AOS. Preferably not deported.  

[geowrian 22,337]

6 hours ago, Varg541 said:

Dear Geowriam, thanks for writing! I came with a J1 visa and  I have stayed for more than 180 days. But We started all this process before my visa expired. I went to an inmigración lawyer and she said I am going to be banned for 10 years, which is not fair since I got legitimately married! 

As long as you filed before your J-1 status expired, you have 0 days of unlawful presence accumulated. So when you leave the US, there is no ban.

That said, I'm unsure why that conflicts with the lawyer's advice...likely either they had different information than what was presented here or there is a misunderstanding. But there are no days of unlawful presence accumulated while there is a pending I-485, and the first ban starts at 180 days of unlawful presence accumulated.

 

2 hours ago, gramercygreen said:

There seems to be two questions here: what happens if OP doesn’t go to the interview (in title), and can OP go back to their home country (in post).

 

(1) I assume that if you don’t go to your interview, the USCIS will deny your case. You will probably have to leave the country if your visa has already expired. That being said, I don’t think they’ll place a ban on you unless they found proof of some kind of foul play.

 

(2) You should be able to go to your home country and return to the US on the AP, as long as your AOS case is pending.

1) Yes, they will deny the case if either one don't go to the interview (only very limited exceptions are available for the petitioner not to attend, like being deployed abroad).

While it does not sound like there is a ban in the OP's case due to the timing of the I-485 being filed, there absolutely can be a ban w/o any foul play. An overstay ban is statutory, not discretionary. Say somebody comes on a B-2 (tourist) visa and stayed 2 years then married a USC and filed for AOS. There would still be a 10 year ban upon exit (if they do not complete AOS), even if the marriage was legit.

 

2) Yes, they can return as long as AP remains valid. AP is revoked when the pending I-485 is denied.

Side note: No ban applies in that case even if they did have enough days of overstay, per Matter of Arrabally, due to it not being considered a "departure" while in possession of a valid AP document.