The Diversity Visa Lottery Program, also known as the US green card lottery, is offered annually to individuals from countries with low rates of immigration to the United States. If a visa has been overstayed and illegal residence in the US has occurred for an extended period, does this mean entry into the lottery will not be permitted, and if the lottery is won, will a green card not be received?
The Green Card Lottery
The United States government holds the Diversity Visa Lottery every year giving a limited number of green cards to people from countries with low immigration rates. Millions of people apply, making it a very competitive process.
Overstaying Your Visa
This means staying in the United States past the expiration date of your visa, often due to personal or other reasons and has legal consequences or affects your eligibility for immigration benefits.
The Problem of Unlawful Presence
Another primary obstacle for someone who has overstayed their visa’s allowable period and desires to enter through the Diversity Visa Lottery is ‘unlawful presence’, which is the act of living in the US without lawful status. Several problems can arise where unlawful presence is concerned if one leaves the US and seeks re-admittance or if one applies for a green card.
Applying for a Green Card
Winning the Diversity Visa Lottery is a triumph, but it’s not a green card if you have an unlawful presence. Normally, those in the US would adjust their status to get a green card. That option isn’t even eligible for those with unlawful presence. Adjustment of status is when one accumulates forms and then makes an appointment to go to a U.S. Citizenship and Immigration Services (USCIS) office for an interview. That option is also closed to those who are not in lawful status. This is because to obtain an appointment at a USCIS office, one has to demonstrate – with actual evidence – that they are lawfully in the US.
Consular Processing: The Likely Path
But if you overstayed and you win the Diversity Visa Lottery, consular processing is most likely your only option. That is, you will need to depart the US and apply for your green card through a US embassy or consulate abroad. If you overstayed illegally in the US for more than a year, and you then depart the US, you will face a 10year bar on reentry to the US.
Getting a Waiver
In some rare cases, you might be able to get a waiver for the ten-year reentry bar. To get this waiver, you need to prove that a U.S. citizen or lawful permanent resident family member would suffer extreme hardship if you were denied a visa. This is hard to prove, and not everyone qualifies.
The Provisional Waiver: A Helpful Option
Diversity Visa Lottery winners can apply for one before leaving the U.S. for their consular interview. This waiver lets you know if your request is approved before you leave, so you don’t risk being stuck outside the U.S. for ten years.
Special Cases: Section 245(i) and Others
Some people can still adjust their status in the U.S. under Section 245(i), which allows certain individuals with approved family or employment-based petitions to apply for a green card despite their unlawful presence. There are also specific situations where individuals who believe they have overstayed might not be considered unlawfully present, such as students who dropped out of school but were not reviewed by immigration authorities.
The Green Card Process
Joining the Diversity Visa Lottery changes life and offers a path to lawful permanent residence in the U.S. However, if you’ve overstayed your visa, the process to get a green card is complex. Understanding the issues around unlawful presence, consular processing, waivers, and special cases is key.
Getting help from experienced immigration lawyers can make a big difference for Diversity Visa Lottery winners with overstay issues. With the right guidance, you can improve your chances of getting a green card and achieving your American dream.
