As discussed last week, the Diversity Visa Lottery, the “green card” lottery, began on October 1st. Many in the community want to know: Am I eligible to apply for the lottery?

The answer: That depends upon several things such as whether you were born in one of the few countries listed on the U.S. Department of State website ( remember: it’s place of birth, not place of citizenship, that counts for this lottery). Still, if you are lucky and your country of birth appears on this list, your preliminary eligibility is satisfied.

Note, however, that Mexico is not included in this list. However, there’s an exception: If you are Mexican and married to an individual from a country that does appear on the list you are eligible to apply (and to win!) under a concept called “cross-chargeability” whereby you are allowed to claim your spouse’s country of birth as your country. For example, if you are from Mexico and your spouse is from Spain, through this concept of cross-chargeability you are now eligible to apply for the DV lottery. Nice little exception, right?

Of course, applying doesn’t mean that you will be one of the winners. However, if you are a preliminary winner it means that you get to go unto the second level of inquiry: determining if there’s something in your personal history that precludes you from obtaining a green card. In immigration terms that’s called “grounds of excludability”.  What are some examples of these grounds of excludability? Past negative immigration status, past criminal or poor health status such as HIV (with some exceptions). If you fall within these grounds of excludability you won’t be given an immigrant visa even if you are chosen as a lottery winner. . Therefore, if you apply for your green card and your case is denied you will, in essence, be reporting yourself to USCIS and ICE. Of course, if you are legally in the U.S. your legal status would generally not be impacted.

Are there any special grounds of excludability that you should be most worried about? Yes: the 3, 10 year and permanent bars. If you have been unlawfully present in the U.S. for more than 180 days and you leave the U.S. in order to apply for your green card, you are barred from returning for 3 years (and by that time your winning lottery ticket will have expired). Similarly, if you are in the U.S. unlawfully for over 1 year and leave in order to apply for your green card you are barred from returning for 10 years. Finally, if you entered the U.S. illegally after April 1, 1997 , were here for  more than 1 year and left and reentered illegally you are permanently barred from ever, let’s repeat, ever, obtaining a green card ( that’s why it’s called a permanent bar).

Now, you ask, why would I ever leave the U.S.? I’m not that dumb. The answer: Because if you are in the U.S. unlawfully you are ineligible to apply for the final stage of the “green card” in this country and must process at an Embassy/Consulate overseas. There’s one exception: if you are grandfathered in under section 245i of the Immigration Act then and only then can you apply from within the U.S.

As the above indicates, applying for the DV Lottery, while simple on its face, is really not simple at all. For this reason it is advisable to contact a competent, ethical immigration attorney before leaping into the filing of this deceptively simple one page application. Remember: act in haste, repent at leisure (and most probably in your home country!).