Visa extension denied, assuming that we get a NTA, can we take voluntary departure before the court hearing?

Question

Hi, 
We have just had our visa extension denied and are now out of status unfortunately it is proving really difficult to wrap everything up and arrange exit before the end of the appeal window in the first week of January. Both Christmas and Covid are causing delays but we are trying to exit as soon as possible. Assuming that we get a NTA, can we take voluntary departure before the court hearing? I believe that this gives us a reasonable timeframe to depart. 
 
The visa is an L1-A, we have no intention on deliberately extending our overstay and want to avoid complications for future visa applications. I did not think that an ead was relevant at this point, am I missing something?

Ana S. Mendieta · Answer

Assuming you get an NTA and a Notice of Hearing before an Immigration Judge, and you can provide for your transportation and fulfil the requirements as required by law [INA § 240B(a)], then the Immigration Judge may grant you a voluntary departure period of not more than 120 days from the time of your hearing (MCH). 
 
The requirements you must meet are the following: 
 
1. You must waive all other requests for relief, remember voluntary departure is a form of relief from deportation; 
2. Must must also concede removability, ie, accept that you are here illegally and are removable; 
3. Also, you must waive appeal of all immigration issues; 
4. You must not have been convicted of an aggravated felony and you must not be a security risk to the U.S.; 
5. and, Show that you intend adn have the financial ability to provide for transportation back home.  
 
As always, I strongly suggest you consult with an experienced Immigration attorney in your area.  There are always details that you might not consider important which might be determinant in your particular case. 
 
Wish you luck.

Kyndra L Mulder · Answer

Beforwe you decide to take this action there are considerations that could have serioius copnsequencws to your future; 
For instance;  
If you wait for removal proceedings against you, you could wait for years because the court is so clogged and you are not a high priortiy for removal.  
You have stated no basis for an EAD while you wait for a court hearing, 
You may go to ICE and agree to VD but you may still have a ban from the USA.  
Depending on the reason for the denial and type of visa you may be ok to remain in the USA while an appeal is pending. 
In my opinion you should discuss your options with an experienced immigration attorney.

Q: Visa extension denied, assuming that we get a NTA, can we take voluntary departure before the court hearing?