I left the United State under pre-conclusion voluntary departure in Sept 2010. I was selected for the DV lottery. Can I qualify

Asked over 1 year ago - Miramar, FL

My attorney keeps telling me that I do not have a 3 or 10 year bar. I entered the US in Feb of 1996. So I was in unlawful status for the duration after the 6 months allowed. I also qualify for adjustment of status under 245 (I). Can I use this together with my DV lottery selection to be able to adjust my status. I am so confused about this voluntary departure. Everything I read tells me there is a bar and My lawyer says there is none. Please advise.

Attorney answers (3)

  1. Alexander Joseph Segal

    Contributor Level 20

    3

    Lawyers agree

    1

    Answered . You are outside of the country. The illegal presence is in place. YOu are not eligible for DV lottery unless 245i. Since you say, and I have to take your word for it, 245i eligible, you would have qualified for adjustment of status despite being out of status. THat however is not the case, since you are not in the USA. HEnce, again - DV lottery - not happening for you.

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  2. Ann Elizabeth Block

    Contributor Level 9

    3

    Lawyers agree

    Answered . A second legal opinion is always a good thing, and sometimes even a third one. A highly competent, professional attorney will welcome the input of other colleagues -- so I encourage you to go consult with another attorney and take all your relevant documents with you. From what you have said above, it sounds like you have never left the U.S. after accruing unlawful presence. If that is the case, your attorney is correct. You are not yet subject to the 3 or 10 year bars under INA 212(a)(9)(B) for "unlawful presence" because these bars do not kick in until you LEAVE the U.S. So, if you have 245(I) eligibility and a current or nearly current DV lottery selection number, by all means, adjust your status. You will NOT be able to leave the U.S. to undergo consular processing though, because then you WOULD have the 3 and 10 year bars, and would need to be eligible for and be approved for a waiver. With adjustment, your attorney will need to make sure everything moves along quickly and you receive final approval before the end of the fiscal year.

  3. Shahzad Ahmed

    Contributor Level 14

    1

    Lawyer agrees

    Answered . There is also a 10 year bar to adjusting status for violating the terms of the voluntary departure order. Hopefully the 10 years for that are over. Very interesting issues. Be sure to hire an experienced immigration attorney for this case. Best regards.

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