What is Cross Chargeability?
An alien cannot complete the last step of the green card application process (i.e. adjustment of status) until an immigrant visa is immediately available to him at the time he applies for a green card abroad through consular processing or files an I-485 application within the U.S. Immigrant visas are usually chargeable to the country of a beneficiary’s place of birth.
If a principal beneficiary of an immigrant visa petition is charged to a country that is overly subscribed in a preference category, such as EB-3 India, EB-3 China, or F-3 Mexico, then he has to wait many years, if not decades, before his priority date becomes current. For example, as per the October 2014 Visa Bulletin, the cutoff dates for EB-3 India is November 15, 2003, EB-3 China is April 1, 2009, and October 22, 1993 for F-3 Mexico.
However, if the dependent spouse of a principal beneficiary was born in a country for which the priority date is current, the principal beneficiary may be charged to the country of his spouse. The relevant regulation, 22 C.F.R. Section 42.12(c) reads:
(c) Exception for spouse. If necessary to prevent the separation of husband and wife, an immigrant spouse, including a spouse born in a dependent area, may be charged to a foreign state to which a spouse is chargeable if accompanying or following to join the spouse, in accordance with INA 202(b)(2).
The Foreign Affairs Manual makes it clear by way of example. 9 FAM 42.12 N3.8, If One Spouse Confers Preference Status and the Other Confers Derivative Chargeability, provides,
When one immigrant visa applicant can confer a more favorable preference status upon another at the same time the other immigrant visa applicant can confer a more favorable foreign state chargeability, both applicants may be considered principal aliens. In such cases, both applicants must be admitted to the United States simultaneously. The consular officer, therefore, must issue visas to both applicants simultaneously. For example, if the principal applicant was born in India and the accompanying spouse in France, the principal applicant born in India may be charged to his spouse’s country of chargeability (France) if the priority date is not current for India.
USCIS’s Standard Operating Procedure for adjudicating the I-485 applications further confirms the application of cross-chargeability when the principal beneficiary’s dependent spouse has a more favorable chargeability:
Definition of Cross-Country Chargeability
The officer must determine the country of chargeability of visa issuance. The country of chargeability is the country of the applicant’s birth. Visas for the dependents will be first charged against the dependent’s country of birth. If unavailable, the visa may be charged against the country of birth of the principal applicant. If the visa is unavailable for the principal applicant’s country of birth, the visa may be charged to the country of birth of the principal applicant’s spouse (but not the children). See section 202 of the INA for rules of chargeability.
Moreover, if a green card applicant was born in a country where neither parent was born or resided, the applicant may be charged to the foreign country of either parent, if the applicant can establish that the parent(s) was stationed in such country under orders or instructions of an employer, principal or superior authority whose business or profession was foreign to country in which the application was born. See 9 FAM 42.12 N5, Applicant’s Place of Birth is Not Parent’s Country of Birth or Residence.
Chargeability applies to applicants seeking to apply for immigrant visas using consular processing as well as those seeking to apply for adjustment of status within the U.S.
How Do I Ask USCIS to Apply Cross Chargeability to My Case?
To take advantage of the cross chargeability, the principal beneficiary’s spouse with the more favorable per-country quota must file an I-485 application with USCIS as a derivative of the principal beneficiary’s I-485 application. The principal beneficiary must then clearly explain in his own I-485 application that he is eligible for the benefits under cross chargeability doctrine.
If you have a spouse whose country of birth has a more favorable per-country quota, please schedule a legal consultation to discuss whether you are eligible to take advantage of the cross chargeability doctrine.