Staying in the United States is a route, not a default. INA 245(a) sets who qualifies, 245(c) sets who is barred, and the fiscal year sets the deadline.
Reviewed by Ekaterina Fitenko, Esq. — Florida Bar #1064536. With 20+ years of experience in the legal field, she advises Diversity Visa selectees on adjustment of status and consular processing, in English and Russian.
A selectee physically present in the United States may apply to adjust status under INA 245(a) rather than return to a consulate. Two conditions sit in that provision: the person must have been inspected and admitted or paroled into the United States, and an immigrant visa must be immediately available at the time of filing.
For a diversity selectee the second condition is tied to the case number becoming current within the region. Filing before that point is premature, and waiting too long after it runs into the end of the fiscal year.
INA 245(c) removes the route from several groups, and two of them appear constantly in diversity cases: people who have worked without authorization, and people who have failed to maintain lawful status continuously since entry. The bar is not softened by good intentions, and it is not cured by leaving the country — leaving creates a different problem.
A person who entered without inspection is generally not eligible to adjust at all, because the provision requires inspection and admission or parole.
These are not marginal exceptions. They are the reason two selectees with identical numbers and identical documents can have completely different cases.
Eligibility under the program ceases at the end of the fiscal year. An application still pending when the year ends does not carry forward: the diversity visa cannot be approved afterwards, whatever stage the file has reached. In practice this compresses everything — filing, biometrics, any request for evidence and the interview — into the months between the case becoming current and 30 September.
That is why the first conversation about a diversity selection in the United States is about the calendar, not about paperwork.
Departing the United States while an adjustment application is pending will normally be treated as abandonment of that application unless advance parole was obtained first. For a selectee this is doubly costly: the application is gone and the months spent on it are gone with it, inside a year that does not extend.
The decision turns on facts that are established before anyone files: how you entered, whether status has been maintained, whether there has been unauthorized employment, where your case number stands, and how many weeks remain in the fiscal year. Those five answers usually determine the route by themselves.
We prepare both routes for selectees in Broward, Miami-Dade and Palm Beach counties, and the first step is establishing which one is actually open.
Possibly. INA 245(a) requires that you were inspected and admitted or paroled and that an immigrant visa is immediately available when you file, which for a diversity case means your case number is current. The bars in INA 245(c) are checked separately.
Often yes. INA 245(c) bars applicants who have not continuously maintained lawful status since entry, subject to limited exceptions. Whether an exception applies depends on the specific history and is the point to review before filing anything.
Generally no. The route requires inspection and admission or parole, so a person who entered without inspection is normally outside INA 245(a) and has to be assessed on a different basis entirely.
Not without advance parole obtained beforehand. Departing with a pending adjustment application is normally treated as abandoning it, and for a diversity selectee there is no time to start again.
Diversity eligibility ends with the fiscal year and the application cannot be approved on that basis afterwards. This is why the filing sequence is planned backwards from the end of the year rather than forwards from today.
$200 for 30 minutes, in English or Russian. Call (305) 315-3425 or email fitenkolaw@gmail.com to schedule, or start with the intake form.
This article is informational only and is not legal advice. Immigration rules, fees and processing times change; confirm current requirements with the agency or with counsel before relying on anything here.
Fitenko Law PLLC, 11555 Heron Bay Blvd, Suite 277, Coral Springs, FL 33076 (main office); 600 Three Islands Blvd, Hallandale Beach, FL 33009 (by appointment only). Phone: (305) 315-3425. Email: fitenkolaw@gmail.com