Author: Richard T. Herman, Esq.
Firm: Herman Legal Group – Immigration Lawyers in Cleveland & Columbus, Ohio
Updated: November 2025
Introduction — The DV Lottery Dream Meets Legal Reality
Winning the Diversity Visa Lottery (DV Lottery) can feel like a miracle — a golden ticket to U.S. permanent residency.
But what if you’re already in the United States and out of status when your name is selected?
“Winning the lottery is luck — keeping your status legal is strategy.”
— Richard T. Herman, Esq.
This in-depth guide explains:
- Whether you can adjust status inside the U.S.
- What happens if you’re unlawfully present or out of status
- The role of consular processing and waivers
- How Project 2025 and Trump 2.0 policies affect your options
- Realistic legal strategies that might save your case
Understanding the DV Lottery Green Card Process
The DV Lottery offers up to 55,000 immigrant visas annually to nationals of under-represented countries.
The Diversity Visa (DV) Program makes 55,000 legal permanent resident visas available annually.
To receive your green card, you must:
- Submit Form DS-260 online.
- Pass background checks and a medical exam.
- Attend your consular interview or adjust status before September 30 of the fiscal year.
Diversity visa lottery winners must complete the green card process by September 30 of the fiscal year related to their lottery win.
If you’re in the U.S., you can apply for Adjustment of Status (AOS) using Form I-485 only if you are in lawful status. Otherwise, you must process abroad.
The law requires applicants for adjustment of status to have continuously maintained a lawful status since their last legal entry into the U.S., with few exceptions.
Quick Answer:
If you’re out of status, you cannot adjust status inside the U.S. You must apply abroad and may face a 3- or 10-year re-entry bar.
What “Out of Status” Actually Means — Lawful Presence vs. Unlawful Stay
The term “out of status” refers to anyone whose authorized stay has expired or who no longer complies with the terms of admission.
According to USCIS:
- Status = your legal visa or parole classification (F-1, H-1B, TPS, parole).
- Presence = the time you’re physically in the U.S., whether authorized or not.
Once your authorized stay ends or parole lapses — without renewal — you’re out of status.
Common Situations That Lead to Being Out of Status
- Expired visa or I-94: staying beyond the authorized date.
- Unauthorized work: violates visa terms immediately.
- Entry without inspection (EWI): never had status to begin with.
Programs That Create Gray Areas
Humanitarian Parole (e.g., U4U, CHNV Programs)
Under programs such as Uniting for Ukraine (U4U) or the Cuban-Haitian-Nicaraguan-Venezuelan paroles, you’re lawfully present while parole is valid.
- During active parole → lawfully present but not in status.
- After expiration or if not extended → not lawfully present and not in status.
- Pending re-parole request → presence authorized temporarily, not status.
Key Insight:
Parole ≠ visa. Winning the DV Lottery on parole does not automatically permit Adjustment of Status; you must still satisfy the lawful status requirement.
Temporary Protected Status (TPS)
Temporary Protected Status grants lawful presence and work authorization.
- During valid TPS → lawfully present with lawful nonimmigrant status (but must meet the entered through admission or parole requirement for adjustment)
- After TPS ends → out of status.
- While extension pending → protected until decision.
Important Note:
TPS alone usually does not qualify you to adjust under DV unless you entered lawfully or travelled on advance parole.
Pending Asylum with USCIS (Not in Court)
A pending asylum application pauses unlawful-presence accrual but does not create status.
- While pending → lawfully permitted to stay while pending, but not lawful status.
- If denied → out of status immediately.
Expert Tip:
Pending asylum gives you permission to remain in the U.S. temporarily, not a path to DV Adjustment of Status.
Pending TPS, Parole, or Extension Applications
A timely-filed Form I-539 to extend status can protect you temporarily.
If denied, you become out of status retroactively to the expiry date.
Deferred Action (DACA)
DACA holders are lawfully present but lack lawful status.
They can sometimes travel on Advance Parole and re-enter to establish “lawful admission” before adjusting status — including for DV cases — but this strategy is complex.
Bottom Line
Being lawfully present ≠ being in lawful status.
Programs like parole, TPS, or pending asylum may protect you from removal, but they don’t grant a visa status for DV adjustment.
Summary:
- Out of status = stay expired or conditions violated.
- Parole, asylum = not lawful status (can’t adjust).
- TPS = lawful status (can adjust, if entered via admission or parole)
- DV adjustment requires lawful admission or parole AND lawful status under INA § 245(a).
- Always consult an immigration attorney before filing DS-260 or I-485.
Adjustment of Status vs. Consular Processing
| Feature | Adjustment of Status (AOS) | Consular Processing (CP) |
|---|---|---|
| Where filed | Inside U.S. (USCIS) | Abroad at Embassy/Consulate |
| Status requirement | Must be lawfully admitted or paroled | May be out of status but must depart |
| Main risk | Denial → loss of DV slot | Departure → 3/10-year bar |
| Deadline | Approval before Sept 30 | Visa issuance before Sept 30 |
Key Insight:
Out-of-status DV winners almost always need Consular Processing — but must prepare for unlawful-presence bars.
Can You Adjust Status If You’re Out of Status?
INA § 245(c)(2) bars AOS for those “in unlawful status on the date of filing.” Exceptions:
- INA § 245(i) Grandfathering – A family or employment petition filed by 4/30/2001 may allow AOS on payment of a $1,000 penalty (details).
- Immediate-Relative Exception – Marriage to a U.S. citizen waives some bars (but not available for DV).
Expert Tip:
DV selection alone does not activate § 245(i).
Bottom Line:
If you’re out of status, you generally cannot adjust in the U.S.; plan for Consular Processing and possible waivers.
Undocumented immigrants typically cannot adjust their status in the U.S. after winning the Diversity Visa lottery due to their immigration violations.
The 3- and 10-Year Unlawful Presence Bars
Leaving the U.S. after unlawful presence triggers automatic bars under INA § 212(a)(9)(B):
These bars to admissibility make it nearly impossible to return to the U.S. using the DV immigrant visa, unless you qualify for a waiver of inadmissibility.
- 3-Year Bar: > 180 days but < 1 year of unlawful presence.
- 10-Year Bar: > 1 year of unlawful presence.
- Permanent Bar: > 1 year + illegal re-entry.
Important Note: Departing for a DV interview without a waiver can invalidate your win.
Options for Out-of-Status DV Winners
- § 245(i) Grandfathering – rare but allows AOS if qualifying petition filed before 4/30/2001.
- I-601A Provisional Waiver – apply before departure to forgive unlawful presence.
- Advance Parole Re-Entry – for certain DACA/TPS holders.
- Marriage to a U.S. Citizen – may open a different path.
- Humanitarian Relief (Asylum, VAWA, U Visa) – alternative routes to adjustment.
When Winning Doesn’t Guarantee a Green Card
You may lose eligibility if you:
- Entered without inspection and lack § 245(i).
- Accrued > 1 year unlawful presence before departure.
- Are inadmissible under INA § 212(a).
- Miss the Sept 30 DV deadline.
Fast Fact:
DV visas cannot be issued after Sept 30 of the fiscal year.
Impact of Trump 2.0 and Project 2025 Policies
Project 2025 proposes eliminating the DV program and tightening lawful-status rules.
Sen. JD Vance has called for “dramatic reductions in legal immigration.”
Risks for out-of-status winners:
- Longer processing times and fewer visa slots.
- Stricter background and status checks.
- More I-601A denials.
Richard T. Herman: “In today’s climate, an out-of-status DV winner is in the most fragile legal position possible — you must act strategically and quickly.”
Real-World Scenarios
Case 1 – F-1 Student Overstay: Out 9 months → DV win → must seek I-601A waiver or trigger 3-year bar.
Case 2 – H-1B Worker Lapse: 14 months unlawful → 10-year bar risk.
Case 3 – DACA Recipient: Uses Advance Parole re-entry to adjust under DV — rare but possible.
Disclaimer: These examples are for education only and not legal advice.
Why You Need an Immigration Lawyer
An experienced attorney can:
- Calculate unlawful presence and bar risks.
- Evaluate § 245(i) and waiver eligibility.
- Manage timing before Sept 30.
- Prepare consular case strategy.
“Selecting the right path after a DV win is like a chess game — one wrong move, and the green card disappears.” — Richard T. Herman
Top Immigration Law Firms for DV Cases
- Herman Legal Group – 30+ years of experience.
- Murthy Law Firm – employment & DV specialists.
- Fragomen LLP – global consular team.
- VisaPro – waiver and DV filing support.
Key Takeaways
✅ Out-of-status DV winners cannot usually adjust inside the U.S.
✅ Consular processing is required but may trigger 3/10-year bars.
✅ § 245(i) and I-601A waivers are limited but valuable.
✅ TPS, parole, and asylum grant presence — not status.
✅ Your DV visa must be issued by September 30.
✅ Get legal help early — timing is everything.
