How to Skip the Per-Country Immigrant Visa Line – Cross-Chargeability Options

Many of our readers follow closely our 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 several Visa Bulletins have been disappointing for most, especially for EB India applicants with the lack of movement and the prospect of a very long wait time before their priority date becomes current.

With such little movement, if any, it is difficult to imagine an alternative to the long wait, in particular for those from India, but also for applicants from Mexico, China or Philippines.   For some, however, the rule of cross-chargeability could provide relief by moving them from an over-subscribed and long-delayed country of chargeability to another with a substantially shorter wait time.

The Cross-Chargeability, As Defined by the Immigration and Nationality Act (INA)

The rule is set by the Section 202(b)(2) of INA.   Specifically, the rule states that:

[I]f an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year.

The cross-chargeability rule applies to both I-485 adjustment of status and to consular processing immigrant visa cases.   However, it is important to note that while the rule has been generally accepted and works for most of the cases, the way the law is drafted does not require but merely allows the government to apply cross-chargeability.  Note the language, “may, if necessary, to prevent the separation of husband and wife.”   It is our experience that a properly documented, flagged and submitted I-485 cross-chargeability application would be accepted and approved under this section of INA.

Skipping the Line – 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 born in a different country, their place of birth was a different country at the time of birth, or they were born on the high seas (rare).

It is important to note that parents cannot take advantage of cross-chargeability and use the country of birth of a child.   Also, for one spouse to take advantage of cross-chargeability on the basis of their spouse’s country of birth, the government requires that both spouses seek to obtain US permanent residency together.

Examples of Cross-Chargeability (and Line-Skipping)

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 an October 2010 priority date, and it could be a few years before the current EB-3 India  cutoff time moves past October 2010 to make this worker’s priority date current.  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, as of recently,  has been very close to current.  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 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 2016 priority date.  As an example, the August 2016 Visa Bulletin cutoff date for EB-2 China is April 22, 2013 and only cases with earlier priority date 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.

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.   We offer a number of consultation options to help you evaluate your situation.

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.