When you win the diversity visa (DV) lottery, you do not win a green card. At best, you win a chance at a green card. (See “What Do You Win When You Win the Diversity Visa Lottery?”) After winning, you must still go through the process of applying for your green card, which is far more complicated – and open to delays and missteps – than the process for entering the lottery.
Most lottery winners process their green card applications through the U.S. consulate or embassy in their home country. If you are already in the U.S. when you win, however, you may be able to remain here and “adjust status” through U.S. Citizenship and Immigration Services (USCIS).
Are You Eligible to Adjust Status in the U.S.?
For the most part, the way you entered the U.S. and your current immigration status determine your eligibility to adjust status within the United States. If you entered the U.S. without authorization (for example, by being smuggled across the border or using a fake passport), or if you have remained in the U.S. past the expiration of your authorized stay, then you are probably not eligible for adjustment of status through USCIS.
However, you may qualify for an exception to this rule if an employer or family member filed papers to start the green card process for you before April 2001. For details, see “Who Can Apply for a Green Card Through Adjustment of Status.”
A few people are not eligible to adjust status in the U.S. even though they entered legally and are currently in valid immigration status – those who entered as crewmen, for instance, or through the Visa Waiver program.
If you have any doubts about your current status in the U.S. or your eligibility to adjust status within the U.S., consulting an immigration attorney would be well worth your while.
If You Can Adjust Status, Should You Choose This Over Consular Processing?
If you are in the U.S. and eligible to adjust your status through USCIS, why would you even consider the expense and inconvenience of traveling back to your home country to process your green card through a U.S. consulate? There are several considerations for choosing your processing route, but the overarching consideration is time.
Each year, a substantial number of lottery winners end up empty-handed solely because they couldn't complete their green card processing in time. This is so because of two somewhat controversial procedural features of the program.
First, the way the law is written, no green cards can be issued to diversity visa lottery winners after the end of the fiscal year for which they won the lottery. You will need to get your approval by no later than September 30 of the relevant year.
Second, to compensate for the lottery winners who will ultimately prove ineligible or opt not to complete green card processing, the U.S. State Department (DOS) selects roughly twice as many entrants as there are slots available each year. Applicants who draw relatively higher numbers in their geographic region must wait to start green card processing until their numbers become “current” under the State DepartmentVisa Bulletin.
That is, they must wait as the DOS periodically checks to see how many green-card slots are still left after successive batches of lower-ranked applicants and their family members have claimed theirs –and while the supply is dwindling, the end of the fiscal year looms ever closer.
For all diversity lottery winners, then, but particularly for those who drew higher numbers in the lottery, processing time is a pressing concern. Applicants who are eligible for adjustment of status with USCIS will want to analyze whether processing through USCIS or through their home country consulates will give them the best chance of securing a green card before the supply is exhausted for their region or the fiscal year ends.
Because the green card processing is done by particular local offices – the USCIS field office with responsibility for your place of residence in the U.S. or the U.S. consulate to which you would apply for an immigrant visa abroad – this analysis inevitably requires information about the records of those particular offices for processing speed. However, there are a few common considerations for the choice between processing in the U.S. and processing abroad.
Special Concerns If Your Family and You Are Living in Different Places
If you have immediate family members who will also apply for green cards, think about which route will be the quickest for all of you. If your family is in the U.S. with you, then you will probably want to choose adjustment of status, all other factors being equal.
However, if your family members are not in the U.S., it may make most sense to return to your home country and process the whole family's green cards together through the U.S. consulate there. Adjusting status in the U.S. when your family is abroad will mean that your family members must wait to process their green cards until USCIS has approved your adjustment and notified your home country consulate. Getting USCIS to notify your consulate actually requires a separate application. This could add considerably to the overall processing time, and your family won't get green cards if the supply runs out or the fiscal year ends before their processing is complete.
Potential Delays Due to Police Clearances and Security Checks
Another factor to consider is that applicants for green cards through consular processing must provide police clearance certificates from every country except the U.S. where they have resided since age 16. Adjustment of status applicants, on the other hand, do not have this burden. Especially if you've lived in a number of different countries, this could be a significant factor for the relative speed of processing.
Security checks by the U.S. itself are another consideration for processing speed. Diversity visa lottery history includes a sad record of green cards lost through no fault of the applicants when the U.S. government failed to complete the necessary security checks in time. Historically, adjustment applicants have fared somewhat better in the security check process than applicants at posts abroad. In addition, diversity visa applicants adjusting status in the U.S. are now eligible for an expedited FBI name check process.
Making Your Choice: Adjustment of Status or Consular Processing?
In short, if you are in the U.S. and eligible for adjustment of status when you win the diversity visa lottery, you will do well to find out all you can about the relative green-card processing speeds of your home consulate and the USCIS field office with jurisdiction over your U.S. place of residence. You should also take into account any factors particular to you that will affect the relative speed of processing in the two venues.
Because the diversity visa lottery program puts such a high premium on the speed with which the lottery winner can complete green card processing, the help of an experienced immigration attorney may be warranted for this analysis.
Finally, a word of caution to diversity visa lottery winners who choose adjustment of status over consular processing in their home countries: Unlike people who consular process, you will not receive any government notice advising you when it’s time to submit your application after winning the lottery. You must carefully watch the State Department Visa Bulletin, which comes out monthly, in order to determine when to file your adjustment application.