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

Asked about 1 year ago - 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. Alexander Joseph Segal

    Contributor Level 20

    9

    Lawyers agree

    Answered . 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)... more
  2. Giacomo Jacques Behar

    Pro

    Contributor Level 20

    4

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    Best Answer
    chosen by asker

    Answered . 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... more
  3. Alan James Brinkmeier

    Contributor Level 20

    4

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    Answered . Agree

  4. J Charles Ferrari

    Contributor Level 20

    3

    Lawyers agree

    Answered . 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... more
  5. Viera Buzgova

    Contributor Level 10

    1

    Lawyer agrees

    Answered . 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... more

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