Cross Chargeability in Green Card Cases28 Mar 2016
Many foreign nationals who are hoping to become lawful permanent residents (LPRs) face extended backlogs in visa number availability. Since visa number backlogs vary enormously by the country against which an applicant is counted or “charged,” it is important to understand the options for favorable chargeability, including chargeability to a spouse’s country of birth. The latest guidelines related to cross-chargeability are detailed in the U.S. Citizenship and Immigration Services (USCIS) Adjudicator’s Field Manual (AFM).
Why Chargeability Matters
There is a cap on the number of foreign nationals who can be granted LPR status each year. This is controlled by limiting the visa numbers that are issued. Each family or employment-based immigrant category has its own limit. Additionally, each category has a per-country limit of 7 percent of the total number. Thus, high demand countries become oversubscribed with more applicants than visa numbers each year. The result is the excessive backlogs familiar to many who were born in countries like India or China.
Basic Chargeability Rule: Country of Birth
The basic rule of chargeability is that a person is charged against the quota for his/her country of birth. Country of citizenship generally has no impact on country of chargeability.
For example, Ravi was born in India and is an Indian citizen. He subsequently becomes a Canadian citizen. Unless he fits within one of the exceptions discussed below, he still will be subject to the backlogged quota for India.
This rule, however, can work in favor of the citizen of an oversubscribed country who happened to have been born in a different country. For instance, Lakshmi was born in the United Arab Emirates (UAE), where her mother, an Indian national, was working temporarily. Lakshmi is an Indian citizen, but is still chargeable to the UAE.
Chargeability to a Spouse’s Country of Birth
In some situations, it is possible to be charged against the country of chargeability of one’s spouse. This is known as cross-chargeability. For example, if Lakshmi, born in the UAE, marries Ravi, who was born in India, both could potentially be charged to the UAE, rather than India. This option is available whether Lakshmi is the primary or the dependent beneficiary in the green card case.
To take advantage of this provision, both Ravi and Lakshmi’s respective I-485 applications must be paired together. As explained in the AFM, in such cases, both applicants are considered as principal applicants – one for conferring immigration status, the other for conferring a more favorable country of chargeability. As such, the I-485s must be approved at the same time.
Minor Children: Chargeable to Either Parent’s Country
The cross chargeability rule also applies to minor children. Children can utilize the quota of either parent. However, it does not allow parents to be charged to the country of birth of their respective children.
‘Just Passing Through’ Exception
One other rare exception to the standard chargeability rules is when a child is born in a country where neither parent was born or has a residence at the time of the child’s birth. In this situation, the child may utilize the country of chargeability of either parent.
For instance, Nina and Krishna were both born and raised in Nepal. While vacationing in India, Nina gives birth to Sajit. The family returns to Nepal a few weeks after Sajit’s birth. Sajit could request to be charged against Nepal, rather than India, in applying to become an LPR.
In most situations, the rules regarding visa chargeability are straightforward and inflexible. But, it is important to be aware of the general exceptions as a more favorable country of chargeability can shave years off of the wait for a green card.
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