In Part 8 of our series we went over the rules for claiming “Alternate State Chargeability” on your green card lottery application. This article discusses your options if you are in the U.S. illegally and wish to apply for the U.S. Diversity Visa Program.
In general, the green card lottery is not intended for those who have overstayed the limitations of their visas or have entered the U.S. illegally. If you are in the U.S. illegally you can still register for the DV lottery. However, the problem arises if you win. Presently, any illegal alien, except DACA beneficiaries, who wins the lottery and goes to the USCIS to apply for a green card may be taken into custody and removed. However, there are circumstances in which you might still be able to obtain an immigrant visa.
In most cases, to be eligible to adjust status in the U.S. to that of a U.S. Lawful Permanent Resident, you must meet certain requirements. You must be legally present in the U.S. on a temporary non-immigrant visa, you must have never worked illegally, and the date on your I-94 Card must not have expired. The I-94 Card is an Arrival and Departure record that was issued to you and stapled to one of your passport pages when you entered the U.S. (For other foreign nationals who have extended or changed their non-immigrant status, their I-94 Card is on the bottom of a USCIS approval notice.)
If you are an applicant with a history of deportation, illegal status, a criminal record, etc. — determining whether you are eligible for a DV green card can require a legal analysis by an immigrant attorney who specializes in “deportation/removal” to see if you are eligible for a waiver. The immigration attorney is legally bound to keep your information confidential and cannot tell the American government your information without your express permission.
If you are eligible for adjustment of status (AOS), you may then file Form I-485 (with all the accompanying forms and documents that make up the AOS package) to adjust status for permanent residence in the USA if you win the lottery. The term “Adjustment of Status” is only used when filing for a green card within the borders of the U.S. Even if you entered the U.S. illegally you may still be able to adjust your status if:
- You had an I-130 immigrant visa petition filed by a family member with the USCIS prior to April 30, 2001, or
- You had an application for Labor Certification filed by an employer with the Department of Labor prior to April 30, 2001, or
- You were a child who was under the age of 21 at the time the above application or petition was filed by the parent, or
- If you are out of status for more than 180 days but less than one year.
Prior to 2013, immigrants who stayed in the U.S. 180 days past the expiration date on their I-94 Card, but less than 365 days, and then left the U.S were barred from reentering the U.S. for at least three years, and up to 10 years.
However, in January 2013, a new immigration rule took effect under the Obama administration. This new rule allows an immediate family member (spouse, child or parent) of an illegal immigrant to apply for a Provisional Waiver that allows the immigrant to bypass the re-entry bar. This means that if you entered illegally, or overstayed your visa, a close family member may apply for the Provisional Waiver. In order to apply for the Provisional Waiver, you will be asked to demonstrate the following criteria:
- The immediate family member applying on your behalf is a U.S. citizen,
- Your illegal status is due to unlawful presence only (i.e. you do not have a criminal record or any other factor that would inhibit your ability to receive a green card), and
- Denial of the Provisional Waver would result in extreme “hardship” or suffering to your U.S. citizen family member.
You may wish to consult with an Immigration Attorney in regards to establishing proof of “hardship”. With a Provisional Waiver the amount of time you will have to spend in your home country will be reduced from 3-10 years to a much shorter time — a few weeks in some cases. More information on Provisional Wavers can be found at www.uscis.gov. Click first on Family, then Family of U.S Citizens, then Provisional Waiver.
If you apply for the DV lottery and win and discover that you are unable to adjust your status in the U.S., you may be required to return to your home country and apply for an immigrant visa. At the consular interview, you will be asked to prove you have not been out of status in the U.S. for more than 180 days. As stated earlier, if you have an immediate family member (spouse, parent or child) who is a U.S citizen, that person should apply for a waiver in order to ensure that you are able to re-enter the U.S. in a timely fashion.
Coming in Part 10
In our next article we will discuss your limited options if you are out of status for more than one year.
If you prefer to use a paid lottery service to enter the lottery, consult this list of qualified third party agents. Or you can wait until October and apply for free at the U.S. government web site.
A complete green card lottery dates and deadlines table for the calendar year 2012, 2013, and 2014 visa lotteries is available at www.myGreencard.com.