Immigrant Visa Delays – Cross-Chargeability Relief

Many of our readers follow closely our (and others’) reports of the monthly Visa Bulletin which provides cutoff dates for those immigrant visa (green card) applicants who are current and have immigrant visa numbers available (i.e. their actual permanent resident “green” card is assigned an available number and can be issued).   The past few Visa Bulletins have been disappointing for most, especially for EB-2 and EB-3 India applicants.   With such little movement, it is difficult to imagine an alternative to the long wait, in particular for those from India, but also from Mexico, China, and the Philippines.  For a few, the little known rule of cross-chargeability could provide relief by moving them from an over-taxed and long delayed country of chargeability to another with a substantially shorter wait time.

How Does Cross-Chargeability Work?

Cross-chargeability allows a family of applicants to move their country of immigrant visa chargeability from one category to another if a member of the family was born elsewhere.  Most often this applies to a spouse (not the main applicant) who was either born in a different country, or their place of birth was a different country at the time of birth, or they were born on the high seas (rare).  Here are a few examples of how the rules apply to real-world situations:

• A married foreign worker born in India has a pending Employment-Based Third Category (“EB-3”) case with a October 2006 priority date, and it could be a few years before the current EB-3 cutoff time moves beyond November 15, 2002 (from the February 2013 Visa Bulletin).  However, because the worker’s spouse was actually born in Canada, in this example, cross-chargeability would allow the EB-3 October 2006 priority date to be processed under the all-other-nationalities (Rest of the World, or ROW) EB-3 category, which is processing priority dates of February 1, 2007 and earlier.  As a result, a long delay in waiting for the EB-3 India category to reach the October 2006 priority date is bypassed and the family can obtain their green cards within weeks or few months (depending on how the application is filed).
• Another married foreign worker born in China has an EB-2 immigrant visa waiting with a July 2009 priority date.  Currently, EB-2 China cases with a priority date of January 15, 2008 and earlier are being issued permanent resident status.  However, the worker’s spouse was born in Hong Kong before 1997 when it became part of China again.  Since Hong Kong was not part of China at the time of birth, cross-chargeability allows the worker and spouse to be processed under the all-other-nationalities (ROW) EB-2 category.  As this category is current, there would be no wait time for a current priority date.

It is important to note that parents cannot take advantage of cross-chargeability and use the country of birth of a child.

How Can We Help?

Do you have a family member whose country of birth differs from the country of birth of the main applicant/worker? We would be happy to consult with you and analyze your options for filing or other alternatives, if they apply to your situation.   The possibility of significant improvement in the waiting/processing of one’s green card application makes cross-chargeability a desirable option, if it is applicable.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.