Visa lottery gives residency to undocumented immigrants?

In this week's Consulta Migratoria® column I answer a question from a reader who won the visa lottery and wishes to apply for permanent residency from abroad.

Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.

I am Argentinean and I was recently informed that I won the visa lottery. I have been living in the US for 13 years, under the 245I. In May 2008 my petition was denied because my employer declared tax losses. My family and I moved back to Argentina 5 years ago. Every year I apply for the visa lottery and this year I got it. Will it be a problem if I stayed in the US illegally? -Sebastian A.

Sebastian, the short answer is yes. Although you were very fortunate to be selected for a visa through the visa lottery program, having been undocumented in the U.S. could affect when you could return to the country after starting the process of your permanent residency application.

Persons who entered or remained in the U.S. illegally generally cannot apply for permanent residence in the U.S. unless they are immediate relatives of U.S. citizens who entered the country legally or are covered by 245(i). This law covers certain types of applications, including family-based petitions, employment-based petitions, and visa lottery winners.

To qualify under 245(i), you must be living in the U.S. and be the beneficiary of a petition that was properly filed with the immigration authorities before May 1, 2001. Also, you must have entered the U.S. before December 22, 2000, if you filed your petition between January 15, 1998 and May 1, 2001. The 245(i) law allows you to acquire permanent residence within the country under certain conditions and by paying penalties.

Since you are not living in the U.S., 245(i) does not apply to you and you must apply for permanent residency at the U.S. Consulate in Argentina.

Because you lived in the U.S. illegally for more than one year after April 1, 1997, you will be subject to the penalty law that prohibits you from re-entering the U.S. for a period of 10 years unless you can get an unlawful presence waiver.

To apply for a waiver of unlawful presence in the U.S., a person must meet several requirements, including demonstrating that his or her U.S. citizen spouse or parents would suffer extreme hardship if they were not granted permanent residence.

When applying for a waiver outside the United States, a person must meet several requirements, including demonstrating that his or her spouse or parents who are U.S. citizens or permanent residents would suffer extreme hardship if permanent residency is not granted.

It is of utmost importance that you consult with an immigration attorney as soon as possible as you have a limited time to claim the visa. If you miss the deadline, you lose your right to the visa.

For more information and immigration tips, read my blog

Send your questions to Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past President of the Hispanic National Bar Association and current President of the Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).