Hello, I know that you can't be out of status and apply for DV lottery but can I apply while my i-485 is pending, I didn't get an answer from USCIS yet , and if i win do i need to go home for 10 years to be able to come back because i overstayed my visa years ago ?
No. It is not possible in your case, UNLESS, despite having filed for marriage based AOS, you were to still be in valid nonimmigrant status. If that were the case, then you could withdraw your pending I-485, with your USC spouse withdrawing the pending I-130, then file the DV based I-485, but only if your number is current under the visa bulletin. Isn't it much easier to wait for the processing of your marriage based case?
You mentioned you overstayed your visa years ago - if you have been out of status before filing your I-485 through marriage, then you would not be able to adjust even if you won the DV lottery unless you are eligible under 245(I) (i.e. a petition was filed for you on or before April 30, 2001 or you were a derivative beneficiary of such petition).
If you live in Austin, you should be getting your interview at the San Antonio office at any day now.
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