By Attorneys Robert L. Reeves and Joseph I. Elias

A few months ago we wrote about the frightening predicament of receiving a “Notice to Appear”, or NTA, in the mail.  The NTA means the Government has begun a process to try to remove, or deport, a non-citizen from the United States.  Unfortunately, NTAs are now being issued in greater numbers following immigrant visa petition or adjustment of status application denials.  This is especially true in employment-based immigration matters.

The United States Citizenship and Immigration Service (USCIS) is clearing an enormous backlog of employment-based immigrant visa petitions and adjustment of status applications filed in the months of July and August of 2007.   The USCIS has been reviewing these filings to confirm such things as an employer’s ability to pay the wage and that the immigrant has not violated immigration status by, for example, working without authorization.  Both of these examples are amongst the most common reasons the petitions and applications are denied.

The USCIS’s standing policy is to referrer either denied immigrant visa petitions or adjustment of status applications to the Removal Unit.  What we are now experiencing is that within a few months of these denials, the Removal Unit is issuing a NTA if the immigrant has no underlying nonimmigrant status.  In early July we wrote about the importance of extending nonimmigrant status while a green card application is pending.  For many, such extensions are not an option and the issuance of the NTA only adds insult to the injury of having one’s green card application denied.  

For many adjustment applicants, a denial only means that he cannot continue to process in the US, but, can still obtain an immigrant visa in his home country.  These immigrants begin to make arrangements to depart the US such as selling vehicles, homes, waiting for their children’s school year to finish, purchasing return tickets, etc. 

They must also carefully watch an unlawful presence clock that typically begins counting on the day the adjustment of status application is denied.  If the clock reaches 181 days in total before they actually depart, a three-year ban from being able to apply for a new visa is triggered.  If actual departure reaches one year and one day, a 10-year ban is triggered.

The issuance of a NTA severely disrupts return immigration plans.  As a consequence for failing to appear at one’s hearing, the alien is ordered deported in one’s absence. Leaving the US while a NTA or removal proceeding is pending results in a self-executing deportation order.  These deportation orders typically trigger a 10-year ban from being able to apply for a visa to return to the US.  So, the departing immigrant cannot leave until their immigration court case is resolved.  Many US immigration courts are experiencing 1 to 2 year waits before the hearing on the merits is held.  This timetable will cause the triggering of the 10-year unlawful presence ban for the immigrant preparing to leave and process in his home country. 

Some immigrants have already departed the US when a NTA issues.  They cannot appear for their hearing since they are out of the US.  Yet, failure to show up will result in a deportation order and the corollary 10-year ban. 

Immigrants in these scenarios appear to be caught between a rock and a hard place.  Departing and not attending the hearing will result in a 10-year deport order ban.  But, remaining and waiting a year for merits hearing will trigger either the 3 or 10 year unlawful presence bans.   Fortunately, there are solutions for those who have either left the US or are about to leave when a NTA is issued.  Many immigration courts will consider expedite hearings for compelling reasons.  Those getting ready to depart the US can apply for voluntary departure at the expedited hearing.  Voluntary departure is not considered a deportation order as long as the applicant leaves within the voluntary departure period.  Thus, no deport bar is triggered. 

There is also a solution for those who left before a NTA was issued.  These immigrants must document their departure before the issuance of the NTA and present it to the Immigration Court through their counsel.  The Court is then requested to dismiss the case since the immigrant was not in the US when the NTA was issued.    Dismissal of the case will result in no deportation order being issued.

Ignoring a NTA has serious consequences for those immigrants intending to return to the US.  It can trigger a 10-year ban.  Even if one has departed the US before a NTA is issued, it must still be addressed.  Fortunately, in the right hands, there is a straightforward procedure to address the NTA and protect the immigrant’s ability to return to the US in the future.