USCIS Issues Notice of Deportation Proceedings to Denied Visa Applicants
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.
***
Author's
Note: The analysis and suggestions offered in this column do not create a
lawyer-client relationship and are not a substitute for the individual legal
research and personalized representation that is essential to every
case.
