i was selected for dv2013 but i have been out status for 15 yrs with an F-1 visa. I do have immediate relatives that are naturilized us citizens (mom & bro) my lawyer advises me to do consular processing claiming i wont trigger a ban if i step out of the country. And that the embassy will approve my interview. I am just looking for some advice.
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dv lottery out of status
- Thread starter jah bless
- Start date
i was selected for dv2013 but i have been out status for 15 yrs with an F-1 visa. I do have immediate relatives that are naturilized us citizens (mom & bro) my lawyer advises me to do consular processing claiming i wont trigger a ban if i step out of the country. And that the embassy will approve my interview. I am just looking for some advice.
Was your F-1 I-94 stamped D/S or with an expiry date? It makes a difference to the outcome of your question.
Was your F-1 I-94 stamped D/S or with an expiry date? It makes a difference to the outcome of your question.
i lost my original i-94 with my passport with the visa i have since been reissued with an i-94 that reads valid for duration of status
i lost my original i-94 with my passport with the visa i have since been reissued with an i-94 that reads valid for duration of status
Hi,
I should have asked before but I forgot; has an Immigration Judge made a determination of a status violation in your case? Or have you ever filed for an Immigration Benefit with USCIS/ INS? Generally speaking, but not exclusively, an immigration benefit is filing for authorization to reside in the U.S. on a permanent basis, and/or filing as an alien for the eligibility to work in the United States.
If you have not had any determination of your status either by an Immigration Judge or because you have never filed for an Immigration Benefit with USCIS / INS, you remain out of status, but not unlawfully present. There is a difference.
INA §212(a)(9)(B)(i)(I) provides that any alien who has been unlawfully present in the United States for a period of more than 180 days but less than 1 year and voluntarily departed the United States prior to the commencement of proceedings, is excludable for a period of 3 years.
INA §212(a)(9)(B)(i)(II) provides that any alien who has been unlawfully present in the United States for 12 months or more is excludable for 10 years, irrespective of whether they leave voluntarily or deported.
Of course many, if not all F, G, J, A Visas are issued without an explicit expiry date, and instead are marked as “D/S”, which means “Duration of Status.” A non-immigrant admitted for duration of status or D/S like you will begin to accrue unlawful presence the day after USCIS denies a request for an immigration benefit if the USCIS finds an immigration status violation while adjudicating the request. If an Immigration Judge makes a determination of status violation, then unlawful presence begins to accrue the day after the order becomes final.
If USCIS finds, while adjudicating a request for an immigration benefit, that the individual has violated their non-immigrant status, unlawful presence will begin to accrue the day after USCIS denies the benefit, or the day after the I-94 expires, whichever happens to be earlier, and should the I-94 have an expiry date at all.
As such, it very much depends on the situation. Since out of status diversity lottery selectees cannot adjust in the United States, your only option would be to start the immigrant visa process through Consular Processing.
While in theory your lawyer is correct that you should not be subject to the 10 year ban [INA §212(a)(9)(B)(i)(II)] if your status was never adjudicated on by INS/USCIS/Immigration Judge, you would be required, as part of the process, to complete a biographical form which lists all addresses, employment and education over the past 15 years. This information, along with your fingerprints from the biometrics, is used by the FBI to validate the information presented and to ensure that there is no criminal past that has not been disclosed. Committing information known to be fraudulent in writing is sufficient to allow a finding of misrepresentation - lying to gain an immigration benefit by hiding a material fact that would affect the decision.
Misrepresentation of this nature is easily discovered and is rewarded with a life time ban on ever being allowed to enter the US again. Also you cannot have been, or will be a public charge; that means no TANF cash assistance, State and local cash assistance, income maintenance, public housing & in some cases, Medicaid.
This being the case, I don’t know if the Consular Officer at the United States Embassy in your country of origin will be particularly pleased that you’ve been violating your F-1 status for 15 years, whether or not this has technically accrued unlawful presence triggering a ban or not; bearing in mind that people have been denied diversity visas for seemingly frivolous reasons with completely lawful statuses, your case is absolutely by no means assured, the risk is entirely yours to proceed. Should there be a refusal of a DL immigrant visa by a Consul abroad, it is very difficult to obtain review.
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i still have time to come up with a strategy and thanks for your advice. I do have other options on the table I have an approved i-130 that will become current in the near future. I am thinking the I-130 stands a better chance since there is no time limit. My lawyer also stated that he can file an appeal if the consular staff deny my visa through the i-130. I will make my decision soon and hope for the best.
i still have time to come up with a strategy and thanks for your advice. I do have other options on the table I have an approved i-130 that will become current in the near future. I am thinking the I-130 stands a better chance since there is no time limit. My lawyer also stated that he can file an appeal if the consular staff deny my visa through the i-130. I will make my decision soon and hope for the best.
I think you are correct. An I-130 petition, if this option is available, sounds significantly better. 2013AF59xxx is quite a high case number, if we start looking back as to when your number would be current we can use DV-2011 as a guide (DV-2012 being a rather special case due to 1st May “fiasco”). You would be current for interview around July / August 2013. The fiscal year ends in September; and that’s a very close call, even if your lawyer files an appeal, the fiscal year could easily be over, and then you'll be kicking your heels outside the United States waiting for that outcome of the case (your F-1 Visa will be cancelled irrespective of whether you are successful in processing your DLV or not. If you are successful it won't matter, but if you are not you're stuck in your country of origin.)
Furthermore as your lawyer probably told you, for 15 years out of status the Consul is justified put you under 221(g) Administrative Processing (AP) for they will undoubtedly want to investigate the circumstances’ of your presence within the United States for such a long period of time. AP can take several months to complete, and if it's not finished by the end of the Diversity Visa fiscal year, your number is gone. An I-130 petition has a greater chance of being successful, and significant advantages over doing a CP abroad for a Diversity Visa.