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  • Sammy, please answer

    Icame on B-2 and overstayed. I won DV-2003, but not covered under 245i. My husbund is permanent resident and two children are USC. Is anything can be done to process the lottery?

  • #2
    Icame on B-2 and overstayed. I won DV-2003, but not covered under 245i. My husbund is permanent resident and two children are USC. Is anything can be done to process the lottery?


    • #3
      Lisa, i am sorry to inform you that you would not be able to adjust yr status here or get the benefit of visa lottery, unless sec. 245(i) is extended before September 30,2003. Even though, you were selected in the visa lottery program, it doesn't mean that you automatically entittled to a green card (immigrant visa), instead you also need to meet all the eligibility requirements which are provided in sec.245(i). You will be surprised to know that every years U.S. govt. selects more than 50,000 visa-lottery applicant even though law allows only 50,000, because govt. knows that many of them would not be eligible for a visa, like you.

      The time you have to take the advantage of this visa lottery is upto the midnight of 09/30/03, otherwise you can not take the advantage of this DV since there is no carry-over of DV benefits into the next year for persons who are selected but who do not obtain visa during fiscal year of 2003. On the otherhand, since you have been overstayed here (or may be working without INS permission), then you are not entilttled to adjust yr status here in the U.S. unless section 245 (i) is extended. However, you are allowed to adjust yr status at oversees at U.S.embassy at your home country, but the matter of fact, since you overstayed over here more than one year from April,1997, then you will not be allowed to return to U.S. for 10yrs if you depart from u.s. So, bottomline, you can not process yr application at oversees anyway because there would be a bar for 10yr for you if you leave the u.s., and this bar would contiune even if you sec. 245(i) is extended, because this bar will apply to you only if you leave the U.S. Lots of folks are confused about the sec 245(i) here, because they don't know that if this law is extended then its merely giving you a chance to apply for a green card here only rather than oversees, that is. If this law is extended then it doesn't mean its waiving the 3/10 yrs bar if you depart the u.s. , since this 3/10 yrs bar is provided under some different law. This bar law is still valid and thesedays congress is in the process of reevaluating it.

      Thereby, now you know that (1) you can leave the process yr application at oversees because you will be barred for 10yrs and embassy will deny you immigrant visa anyway, (2) you can not file for green card here until sec.245 (i) is extended because you have violated the immigration laws being overstayed here, (3) You have only upto Sept 30,2003 to file for green card, so if sec. 245(i) is not extended by then, you will be out of luck for this visa lottery, (4) yr husband can not file for you unless this law is extended since you overstayed here and yr husband is only a p.resident. IF he is or becomes a U.S.citizen, then you don't need to worry about extention of this law or visa lottery, since overstaying or other technical violations are forgiven if you are a immediate relatives of a U.S.citizen who is filing for you, and yr children can not file for you until they become 21 yrs old. If this law doesn't get extension by Sept of this yr, then yr husband can file I-130 for you so that you can be in line for visa#, and if later on when this law is extended then you will be allowed to proceed for yr green card application over here when your visa# would be current, but at least you will be in line for yr number, and if meanwhile yr husband becomes citizen then he can upgrade yr application anyway. If yr husband is about to be a citizen shortly, then just forget all this hussle, like visa lottery or I-130, because he can file for you right away when he becomes citizen and no bar would apply on you nor you need to wait for any time for yr number to be available since there is no waiting time in case of U.S.citizen. I am sorry i did not able to give you good news, but i have tried to break it down yr options, i hope this would help you to understand your situation. Good luck.


      • #4
        Thank you, Sammy for your replay. If I leave US to process in consulate, is it possible to apply for a waiver? How long it takes to process waiver in the consulate? Thanks.


        • #5
          There are other reason you will not be adjusted, even 245i reinstate.
          You entered as nonimmigrant and inspected 245i clause is for alien who entered illigally.
          I'm sorry to say that sammy is right on the other part but Sammy can please confirm that what I wrote?


          • #6
            Lisa, if i were you, i won't leave the U.S., no matter what, even if sec. 245(i) is extended, because once you depart the U.S., you will be automatically bar for 10yrs and embassy will never give you visa anyway even though you are selected under visa lottery program. The only way you could able to obtain waiver for this 3/10 yrs bar situation, if your spouse (yr husband) or yr parents are U.S.citizen, because law provided the waiver because of hardship to them in this situation. But, pl keep in mind that you are not allowed to seek waiver based on yr U.S.citizen children, since law has been changed on this, as previously if you have u.s.citizen children then you can seek waiver based on them, but not anymore.

            In order to obtain waiver, you need to wait anyway until your husband becomes citizen, then why not wait here regardless of any status, since at least you can stay with yr husband and with yr children, and once he becomes citizen then you can file for green card application without waiting in any line for visa #. Even though you have been overstayed here, since this types of violations are forgiven as long as you have immediate relative who is a u.s.citizen. So, i hope you understand that you are not entitled for waiver until the above said requirement is met. But, if your husband is citizen, then waiver application takes usually upto 60days to process at consulate and vary by counslates based on their work load. So, my advise to you do not leave U.S. because even though you leave you won't be able to get green card based on DV program, as well you are not eligible to apply for waiver yet. Just wait here and pray that sec.245(i) is extended before Sept. 30,2003, because if it does, then you will get green card without any problem right over here. Be remember, i am praying also for the extenstion of sec 245(i) because i don't wanted families like you to be separated if this law is not extended. Keep your finger crossed and good luck.

            TO: MOHAN

            I don't think that Mohan is the one posted this post here, well anyway let me answer you- Sec.245(i) is applied to all violation of immigration laws such as overstaying, entered without visa, entered illegal (which included fake name/passport, croossing boarder), working without INS persmission etc. So, if anyone has done out of any these violations, then they will be forgiven and be allowed to file their paper( if they have reason to file) in the U.S. with a penalty fee of $1000 if this law is extended, but if not, then these violators need to go back to their home country to process paper work there, but if they leave the U.S. , then 3/10 yrs bar would apply to them, that's why millions of people are praying for its extention.

            However, if you have a U.S.citizen immediate family member who is sponsoring you, then you don't need to worry about sec 245(i) because this law doesn't apply to them except in one situation if someone entered the U.S. without any inspection, then person must need to go back to his/her country even though they have U.S.citizen relative, unless this law is extended. But, if they go back, they will be able to get waiver for this 3/10 yrs bar as long as they have spouse or parents who are U.S.citizen.


            • #7
              Sammy is right.


              • #8
                How do you know he's right, Mutual, did you have a session together?


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