By Brian Figeroux, Esq.

An analysis of the current Green Card Lottery system. If you are undocumented in the US, you are most likely not eligible.  Be careful of lottery scams that can get you deported by notaries or lawyers.

The Diversity Immigrant Visa (DV) Program, often referred to as the Green Card Lottery, is one of the United States’ most distinctive immigration initiatives. It provides individuals from countries with historically low rates of immigration to the U.S. the opportunity to secure lawful permanent resident status. Each fiscal year, up to 55,000 immigrant visas are made available through this program. This analysis explores the structure, purpose, challenges, and implications of the Green Card Lottery, with a particular focus on its impact on individuals both inside and outside the United States.

Additionally, this report addresses the significant issue faced by individuals in the U.S. who have overstayed their visas. Such individuals, unless grandfathered under Section 245(i) of the Immigration and Nationality Act (INA), face significant legal hurdles in adjusting their status while remaining in the U.S. If they depart, they may be subject to a three- or ten-year bar from reentering, further complicating their immigration journey.

History and Purpose of the Green Card Lottery

The DV Program was established by the Immigration Act of 1990 to diversify the immigrant population in the U.S. At its core, the program aims to balance migration by encouraging individuals from underrepresented countries to apply. For many, it offers a rare opportunity to achieve the “American Dream” without the traditional pathways of family reunification, employment sponsorship, or asylum.

Key milestones in the history of the DV Program include:

1. Legislative Foundation: Congress implemented the lottery to address imbalances created by previous immigration policies favoring family- and employment-based immigration.
2. Annual Allocation: Each fiscal year, 55,000 visas are allocated to applicants from eligible countries.
3. Global Outreach: Countries that have sent more than 50,000 immigrants to the U.S. in the past five years are ineligible, ensuring a broader geographic distribution.

The Green Card Lottery serves as a beacon of opportunity for many, but it has its share of complexities and criticisms.

Eligibility and Application Process

The program has a relatively straightforward application process, though the eligibility criteria are strictly enforced:

1. Eligibility Requirements:
   • Applicants must be from eligible countries with low immigration rates to the U.S.
   • They must have at least a high school education or equivalent, or two years of qualifying work experience.
2. Application Procedure:
   • The application is submitted electronically via the official DV Program website.
   • The process is free, though applicants should beware of fraudulent services.
3. Selection and Notification:
   • Winners are selected randomly by a computer-generated lottery.
   • Being selected does not guarantee a visa, as winners must meet all eligibility and admissibility requirements.

While the program seems simple on the surface, logistical and legal challenges often arise, especially for individuals residing unlawfully in the U.S.

Challenges for Overstays and Adjustment of Status

One of the most significant legal hurdles for certain Green Card Lottery winners is the inability to adjust status within the U.S. if they are out of status. Understanding this issue requires a closer examination of INA Section 245(i), the three- and ten-year bars, and the consequences of overstaying a visa.

INA Section 245(i): Grandfathering Provision

Section 245(i) allows certain individuals who are ineligible to adjust status within the U.S. to still apply for adjustment if they meet specific requirements:

• Grandfathering: To qualify, the individual must have been the beneficiary of a qualifying immigrant petition or labor certification filed on or before April 30, 2001.
• Penalty Fee: Applicants under this provision must pay a $1,000 penalty fee.

However, most overstayers today do not qualify under 245(i), as the deadline for filing was over two decades ago. As a result, these individuals must leave the U.S. to process their immigrant visas at a U.S. consulate abroad, which triggers the three- or ten-year bar.

The Three- and Ten-Year Bars

Under INA Section 212(a)(9)(B), individuals who accrue unlawful presence in the U.S. face significant penalties upon departing the country:

• Three-Year Bar: Applies to those who have been unlawfully present for more than 180 days but less than one year, if they leave the U.S. voluntarily before removal proceedings are initiated.
• Ten-Year Bar: Applies to those who have been unlawfully present for one year or more.

These bars are particularly problematic for Green Card Lottery winners residing unlawfully in the U.S. because:

1. They cannot adjust status within the U.S. without the protections of 245(i).
2. Departing the U.S. to complete consular processing triggers the bar.

Impact on DV Lottery Winners

For DV Lottery winners who are ineligible for adjustment of status:

• They must carefully weigh the risks of triggering the three- or ten-year bar.
• In some cases, they may seek a waiver of inadmissibility, though these waivers are difficult to obtain and subject to strict criteria, including demonstrating extreme hardship to a U.S. citizen or lawful permanent resident family member.

Broader Implications for U.S. Immigration Policy

The Green Card Lottery system and the challenges faced by overstayers highlight broader issues in U.S. immigration policy:

1. Systemic Inconsistencies:
   • The lottery promotes diversity but does not address the needs of individuals already contributing to U.S. society.
   • Overstayers, many of whom are integrated into their communities, face legal barriers that undermine the lottery’s inclusivity.
2. Policy Gaps:
   • The lack of a contemporary equivalent to 245(i) leaves many without viable options for legalization.
   • The three- and ten-year bars create a punitive system that discourages compliance.
3. Humanitarian Concerns:
   • Families are often separated due to the bars, leading to emotional and financial hardship.
   • Immigrants who contribute to the economy and society are unable to regularize their status.

Criticism and Calls for Reform

The Green Card Lottery, while innovative, is not without its detractors. Critics argue that the program:

1. Fails to Address Broader Immigration Needs:
   • It provides opportunities for new immigrants but does little to address the status of undocumented individuals already in the U.S.
2. Lacks Modernization:
   • The program’s reliance on random selection overlooks merit-based considerations.
3. Exacerbates Vulnerabilities:
   • Selected individuals residing unlawfully in the U.S. face unique challenges, including the inability to adjust status and the risk of triggering bars.

Proposed Reforms

Policymakers and advocates have proposed several reforms, including:

• Reinstating or updating 245(i) to allow more overstayers to adjust status.
• Reducing or eliminating the three- and ten-year bars for individuals with strong ties to the U.S.
• Transitioning the DV Program to a hybrid model that incorporates both diversity and merit-based selection.

Case Studies and Real-Life Scenarios

To illustrate the challenges faced by Green Card Lottery winners, consider the following hypothetical scenarios:

1. Maria from El Salvador:
   • Maria overstayed her visa in 2005 and has lived in the U.S. for nearly two decades.
   • She wins the DV Lottery but cannot adjust status because she is not protected by 245(i).
   • Departing to complete consular processing would trigger a ten-year bar, leaving her family in the U.S. without her.
2. Ahmed from Yemen:
   • Ahmed wins the DV Lottery while visiting the U.S. on a tourist visa but overstays after applying.
   • Although eligible for the lottery, his overstay prevents him from adjusting status.
   • Facing the three-year bar, Ahmed decides not to pursue his visa, missing his chance for permanent residency.

Conclusion and Recommendations

The Green Card Lottery is a valuable program that promotes diversity and provides opportunities for individuals worldwide. However, its impact is undermined by systemic barriers faced by those unlawfully present in the U.S., particularly overstayers who cannot adjust their status without leaving the country and facing punitive bars.

Addressing these issues requires comprehensive immigration reform, including:

• Revisiting and expanding Section 245(i) to provide more pathways for adjustment of status.
• Reducing or eliminating the three- and ten-year bars for individuals with strong U.S. ties.
• Modernizing the Green Card Lottery to align with contemporary immigration needs and challenges.

By addressing these shortcomings, the U.S. can make the DV Program more equitable and effective, ensuring it fulfills its promise of opportunity and diversity for all.

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