TN/TD Visa Holders Obtain Diversity Visa Lottery Green Card Approval

The applicants in this case were a Canadian citizen and a German citizen. The Canadian citizen was working in the U.S. under TN visa status, and his wife had accompanied him under TD visa status.

The wife, who as a German national was eligible for the Diversity Visa (DV) Lottery program, submitted an application and was selected for the DV lottery. The husband was allowed to join in the application as a derivative (Canadian nationals were not eligible to participate in the DV program). The couple contacted our office for assistance in preparing the DV application and in maintaining their TN/TD visa status and ability to travel during the process.

After the DV lottery application filing period, the U.S. government randomly selects individuals for participation in the DV lottery program. Selection for the program does not guarantee a green card though, because the government selects more people than the number of DV visas available (50,000). Also, in order to remain eligible for a DV green card, all applicants must complete the process (adjustment of status or immigrant visa processing) by September 30th of the fiscal year. It is therefore important to make sure all paperwork is in order – especially for applicants with high rank cut-off numbers

Once selected for the DV lottery program, applicants must file application forms with the Kentucky Consular Center (KCC) and decide whether they will process their case through immigrant visa processing or adjustment of status. Making this decision depends on various factors. In this case, the applicants needed the ability to travel at a moment’s notice due to an ailing relative. Since filing an adjustment of status application involves a certain period where travel is not permitted (generally 30-90 days until advanced parole is issued), we recommended that the couple process their case through immigrant visa processing at a U.S. consulate in Germany.

We were also concerned that an overzealous immigration officer might deny them re-entry to the U.S. under TN/TD visa status alleging that the pending DV lottery application contradicted the temporary entry requirements for the TN/TD. To prevent this, we supplied the couple with paperwork that referenced a U.S. Department of State letter, which stated that registering for the DV lottery “would not ordinarily be sufficient cause for visa denial and certainly it is not an automatic bar to receipt of a subsequent non-immigrant visa.” Odom, Chief, Leg. & Reg. Div., Dir. for Visa Services, Letter to Yale-Loehr (Nov. 12, 1997). Although discussing the issuance of a visa, we took the position that this letter also supported re-admission to the U.S. under a previously issued TN/TD during a pending DV lottery application. (We were not concerned with a TN renewal because the husband’s TN visa status did not expire until 2012, and he would have completed the DV process by then).

Another issue to address was a potential public charge allegation. All DV applicants must prove that they will not become a public charge by showing that they have income of at least 100% of the U.S. poverty guidelines. In this case, the principal applicant (the TD spouse) was unemployed. We therefore prepared an I-134 Affidavit of Support form for the TN visa worker to document that he had sufficient income to support his wife and family and overcome any public charge concerns. (The more prevalent I-864 affidavit of support form is not required for DV lottery cases. See 9 FAM 42.33 N9.3 and 9 FAM 40.41 N4.6-3).

The applicants’ DV lottery rank finally became current, and they were scheduled for an interview appointment at the U.S. consulate in Germany. We had already assisted the couple in securing the necessary supporting documentation including besides the Affidavit of Support, the requisite proof of DV eligibility, police certificates, medical records, and birth certificates. The couple attended their interview and was subsequently issued their immigrant visas without complication. They entered the U.S. and received their green cards in the mail shortly after.

For those interested in the DV lottery, the online registration for the upcoming 2012 DV Lottery begins on October 5, 2010, and ends on November 3, 2010.