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Visa Lottery Rules Continue To Thwart Out Of Status Aliens
by Carl R. Baldwin

The U.S. Department of State has issued a 16 page set of "Instructions" to the up-coming visa lottery. A careful reading reveals that out of status aliens, as a result of the 1996 immigration law, cannot get the benefit of a winning number. But that bad news should have been stated more directly. One of my "pet peeves" in recent years is that some government entities that publicize the visa lottery each year and claim to be helpful to immigrants, are downright deceptive in not relating the bad news about the inaccessibility of the lottery's benefits to out of status aliens.

Every person, here or abroad, who might be eligible to apply for the lottery should download and study the State Department Instructions. They can be found at

An excellent series of "Questions and Answers" about the lottery can be found on the web site of attorneys Gregory Siskind and Amy Ballentine at

Ineligible countries this year, like last year, are: Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. (SAR means "Special Administrative Region of the People's Republic of China.")

Entries must be received at the appropriate Kentucky Consular Center mailing address between noon on Monday, October 7, 2002, and noon on Wednesday, November 6, 2002 (the times are Eastern Standard Time). For the precise address and zip code, depending on the geographic region where the applicant was born, go to page 4 of the State Department Instructions.

The State Department's August 21, 2002 Notice concerning the new program advises that additional scrutiny of applicants, and consequent delays, must be expected in the wake of 9/11. Special attention will be paid (among others) to nationals of countries the U.S. has designated as "state sponsors of terrorism": Iran, Iraq, Cuba, Libya, North Korea, Sudan, Syria. One has to wonder, of course, whether the decision-makers will steer clear of applicants from Muslim countries. Will someone named "Osama" be rejected out of hand, for his name alone? Peaceful immigration is one thing; terrorism is another. I hope and trust that our government will continue to tell them apart.

The inability of the alien in the U.S. who is not in valid status to qualify for visa lottery benefits continues to spell frustration and disappointment for a great many. Two questions and answers focus on this.

"Q. 15. May winning applicants adjust their status with the INS?" "Yes, provided that they are otherwise eligible to adjust status under the terms of Section 245 of the Immigration and Nationality Act (INA)."

Unfortunately, the winner of the lottery who has failed continuously to maintain a lawful status since entry is not eligible to remain in the U.S. and adjust status to legal resident. INA Section 245(c). Is there an alternative? Can he or she travel to the home country and apply for an immigrant visa in the U.S. Consulate there on the basis of the winning number?

No, because the 1996 immigration law provides that an alien who has been out of status for more than 180 days, and voluntarily departs from the U.S., will be barred from reentry for three years. INA Section 212(a)(9)(B)(i)(1). Since the visa number expires after one year, the lottery win will be useless. Can the DV winner apply for a waiver of this provision of law? Take a look at question 20.

"Q. 20. Are DV applicants specially entitled to apply for a waiver of any of the grounds of visa ineligibility?" "No. Applicants are subject to all grounds of ineligibility for immigrant visas specified in the Immigration and Nationality Act."

Note that there are some aliens who can get around this roadblock: those who were able to apply for Section 245(i) relief under the LIFE Act of 2000 (Legal Immigration Family Equity Act), between December 22, 2000 and April 30, 2001. In order to be eligible, the alien had to be the beneficiary of an immigrant visa petition or application for labor certification. If that petition or application was filed, the alien is "245(i) eligible," and can make an application for adjustment of status based on the winning visa lottery number, even if he or she had been out of status for weeks, months, or years.

The fact that large numbers of law-abiding, tax-paying aliens will continue to be excluded from visa lottery benefits should prompt Congress to make the program meaningful by abolishing the bars for overstays created by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). We have had enough time to see how counterproductive this law has been.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," Allworth Press, 2002. The book, which contains essential background information about how the immigration law works, can be ordered online from Allsworth Press at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.