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November 17, 2008: Visa Lottery and Derivative Beneficiaries

Visa Lottery and Derivative Visas

My brother-in-law won the Diversity Visa (“DV”) lottery and passed the interview. He was issued an immigrant visa to enter US. He was told he must enter within the next six months. At the time of his visa application he was unmarried. He was dating the girl in his hometown and now intends to marry and bring her along to US. Is she eligible for “follow-to-join” benefits? If not, is filing an I-130 petition upon arrival to US is the only way to bring his wife? If his wife comes on visitor visa can they apply for adjustment of her status? Thank you.
— Anonymous

You are welcome. You raise several interesting visa and immigration legal issues that warrant discussion. First, I assume that your brother-in-law was unmarried at the time the visa application was made at the consulate in his home country, not just at the time he submitted his DV application on-line. If he now marries his girlfriend, she will be eligible to apply for an “accompanying derivative beneficiary” visa at the consulate. This should be done immediately after the marriage so the both of them can enter the USA on DV permanent resident visas. She will actually have six months to enter the USA after he does, but I would think it is better for them to enter together as immigrants if at all possible.

Second, if she chooses to not go this route, but rather wait for her husband to enter the USA and file an I-130 petition for her, she will have a long wait since the family based 2A category is backlogged to February, 2004 at present. Finally, if she enters as a visitor and stays past her allotted time, that would be a big mistake for several reasons, perhaps the most important of which is that she will not be able to file for adjustment of status until visa numbers become available, which will be many years from now. So, I believe your best course of action is to try for the accompanying derivative beneficiary permanent resident visa for her. Good luck!

Michael Shane and Evan Shane, Immigration Lawyers

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