As a Visa Overstay, Can I Apply for Diversity Visa Lottery?

People living in the U.S. illegally are rarely able to succeed in a green card application, no matter what basis they're applying on, lottery or otherwise.

By , J.D., University of Washington School of Law

A surprising number of foreign nationals come to the U.S. as tourists (on a B-1 visa) or on some other nonimmigrant visa and simply don't leave after the expiration date of their permitted stay. But what happens if they then register for and are selected in the Diversity Visa Lottery? Can they enter even if living in the United States illegally? And what if they win? That's what this article will discuss.

Lottery Winners in the U.S. Illegally Face the Unlawful Presence Bar to Green Card Approval

Anyone who is from an eligible country and meets the educational and financial requirements can enter the visa lottery. (See Winning a Green Card Through the Visa Lottery for details.) But even if their name is selected, it won't be easy to proceed toward green card approval. People living in the United States illegally are rarely able to succeed in a green card application, no matter what basis they're applying on.

This is because, for the most part, only people who are currently in lawful status in the U.S. can apply for the green card using a procedure called "adjustment of status," meaning they take care of all the paperwork and their green card interview at a local office of U.S. Citizenship and Immigration Services (USCIS). (See 8 U.S.C. § 1255.)

Everyone else must leave the U.S. and complete their green card application at the U.S. consulate in their home country. That typically creates a problem of its own: If the person has been unlawfully present in the United States for more than one year while over the age of 18 (and after the date of the law's enactment on April 1, 1997), the consulate can forbid them from returning to the United States for ten years. See Consequences of Unlawful Presence in the U.S.: Three- and Ten-Year Time Bars for more information on that.

Can the Unlawful Presence Bar Be Waived or Forgiven?

A so-called "waiver" (legal forgiveness) of the unlawful presence bar is available, but only in narrow circumstances. You would need to have close, "qualifying" relatives in the United States, and show that they would suffer hardship if you were denied the visa.

There is some good news, however, if you happen to have qualifying relatives: Lottery winners are among those eligible to apply for the "provisional waiver," which allows getting an answer to one's waiver request before, not after leaving the United States for one's consular interview. (See Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar.)

This is a huge benefit; by getting a decision before departure, you can avoid being trapped overseas for ten years if and when the consulate chooses to deny your waiver request.

Various exceptions also exist to the above rules, depending on the details of your personal situation: For example, a very few people still have the right to adjust status in the United States, under an old law called Section 245(i), usually because someone started the process of getting them a green card long ago.

And some people who might think of themselves as living here illegally are actually not "unlawfully present," such as students who dropped out but whose cases haven't been examined by the immigration authorities.

Getting Legal Help

If interested in the lottery, and living unlawfully in the United States, you should really see an experienced immigration attorney for a full analysis. Also, for more information on the green card lottery, pick up a copy of U.S. Immigration Made Easy, by Ilona Bray (Nolo).

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