Filing for Diversity Visa and Immigrant Intent.

Question: As a TN visa holder in the USA, would submitting an application for the Diversity Lottery based upon my spouse's country of birth, indicate intent? When it is time next August for renewal of the TN's, even if our names were not drawn, would there still be a record which would be seen by either the processing center or the Free Trade Officer at the Port Of Entry?

Answer: Merely submitting an Electronic Diversity Visa Entry Form (E-DV Entry Form) should not be considered evidence of immigrant intent sufficient to warrant the denial of a subsequent TN application. Filing the entry form is simply the first step in the process. The diversity immigrant visa program’s 50,000 permanent resident visas are drawn from random selection among all entries. There is no guarantee that an applicant is even going to be selected. Filing a diversity visa entry form is only a sign of intent to potentially immigrate in the future. The regulations do not prohibit an applicant for a TN visa from possessing intent to immigrate in the future. Read more: TN Visas & Immigrant Intent.

Even if you are selected, you do not have immediate access to a green card. You need to undertake a second step: filing for adjustment of status or immigrant visa processing. Additionally, persons selected in the DV-2009 lottery may apply for visa issuance or adjust status only during fiscal year 2009, from October 1, 2008 through September 30, 2009. In the event you are selected, and you need to renew your TN status, it may be more prudent to apply for your visa through the consulate. This would alleviate concerns over immediate intent to immigrate as you would need to depart the U.S. to obtain your immigrant visa. As in all TN visa cases, you should not apply for adjustment of status and then try to “renew” or file for a new TN.

Caveat: This does not mean that an immigration officer may not question you on the issue or potentially even deny you a TN on the basis of having filed for a diversity visa (assuming her or she has access to these filings with the Department of State). We can never assume that immigration officers will always properly interpret the law. The role of an immigration attorney is to ensure they rectify any misinterpretations when they occur.