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Is it possible to apply for DV Lottery while my I-485 status through marriage has been pending for 4 months now ?

Austin, TX |

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 ?

Attorney Answers 5


  1. Best answer

    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?

    Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


  2. To apply for adjustment of status one needs to be in a valid nonimmigrant status on the day application is made. Pending I-485 is NOT a valid nonimmigrant status. Talk to an immigration attorney.

    NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.


  3. It all depends on whether you are in status or not. Being an applicant for adjustment of status is not status.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


  4. 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.

    Viera Buzgova (512) 476-7163. The information above is general in nature and does not constitute legal advice. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. You should retain an attorney to review all the facts specific to your case in order to receive advice specific to your case.

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