Legal Question in Immigration Law in New York

My wife won the Diversity Visa 2014 and now she lives in the United States she was holds a student visa but expired in July 2012 and she gave birth in July 2012 September in New York and she did not travel from the United States until now Can she get the Diversity Visa green card or can she go back home and seek her immigrant visa overseas

Asked on 5/15/13, 12:37 pm

1 Answer from Attorneys

Marlene Hemmings Marlene Hemmings, Attorney at Law

An F-1 visa is for "duration of status". Only the U.S. Department of State, through the U.S. Consulate can make a determination as to when your wife's status ended. However, technically, an F-1 ends when the student drops out of school, the number of class units drops below the accepted level required, or the OPT ends.

That being said, assuming your wife's F-1 terminated July 2012, she has accrued almost one year of illegal presence, making her subject to the 10 year bar.

If she applies for the immigrant visa in her home country, she will be denied, plus barred from re-entering the United States for 10 years. If she attempts to apply for adjustment of status in the U.S., she could be denied if USCIS finds that she is now out of status.

I therefore do not see eligibility to obtain a "greencard", based on the facts you have provided.

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Answered on 5/15/13, 2:01 pm

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