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How soon would you have to change the I-485 after your spouse has won the DV lottery?

My I-526 has just been approved after 21 months. My husband has also been selected in the 2018 DV lottery with a very low case number that, based on the last 5 years, should go current in October. We are currently in the U.S. on F1/F2 status. A green card through the DV lottery is very attractive as it is unconditional and we could potentially receive our investment back much earlier when the project has been completed. If we were to file for AOS now on the basis of our I-526, it is unlikely given the current I-485 processing time that it would be approved by Oct., but we would hope that the EAD and AP would be. If our DV lottery case number went current in Oct., would it be possible to amend the already filed I-485 to be based on DV lottery selection? That way, we could retain our place in the processing queue and retain our EAD and AP. Or would we need to refile a new I-485 and start the whole process again?

Answers

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    Olivia Orza

    Immigration Attorney
    Answered on

    An adjustment of status (I-485) application may be transferred as long as there is no break in the continuity of the applicant''s underlying eligibility to adjust. You may apply for I-485 based on the approved I-526 and later transfer it to the DV category, as long as you remain eligible to adjust during that entire period between the I-485 filing and the I-485 transfer request. A transfer cannot be granted once USCIS has made a final decision on the I-485 application. If the I-485 application is approved before you make the transfer request, you will be in conditional resident status. Please consult with an immigration attorney to ensure that all the facts specific to your case are taken into consideration when you decide which path is best for you and your family.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Judging by the processing times associated with the DV, it is fair to say it is a faster means of getting an immigrant visa than EB-5. However, while the situation based on your facts pattern may occur, no one can state with certainty that all issues a DV lottery winner will encounter have been examined. Advisably, consult an EB-5 attorney for side-by-side comparison prior to making further decision.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I would need to see which lottery year he is in to advise, as you are unlikely to get adjusted by October 1 in the 2017 lottery. If his lottery year next year and you can file after October 1, then yes, this is a great option.

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    Charles Foster

    Immigration Attorney
    Answered on

    Given the fact that your husband won the Diversity Lottery and you have the opportunity to file for your Lawful Permanent Residency on that basis, you would have to file a separate Application for Adjustment of Status on Form I-48,5 which would require you to contemporaneously file for your Advance Parole and Employment Authorization Document (EAD). Effectively, you would have two applications pending and, at some point, could withdraw your I-526 petition and seek to recoup your investment at an earlier date. However, you should be cautious and not withdraw your current Application for Adjustment of Status on Form I-485 until it is very clear that your new application has been successfully filed.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    While there is some authority to say you can amend the pending adjustment from EB-5 to DV, it appears USCIS wants a second adjustment filed if you change the basis of the filing. So, in your case, I would recommend filing two adjustments. This also gives you a fallback position if the DV adjustment is not approved.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    It is not clear what you mean by changing the I-485. I would not advise you to have two I-485s going at the same time as it will create confusion for USCIS. Your husband's DV case cannot be filed until October 1, but you both should get the EAD/travel combo card based on that by December. As you noted, the DV case gives you the permanent residency status immediately without going through the conditional period and, as such, it cuts one more step you need to take.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    There is no way to amend an I-485 to a different category basis. Based on your scenario, if you wish to switch to the DV-lottery-based adjustment, you will need to withdraw the pending I-485 and re-file a new I-485.

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    Stephen Berman

    Immigration Attorney
    Answered on

    If you have a pending I-485, you should be able to use it for the DV lottery, as well, and not need to file a new one. Get a lawyer to help you.

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