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Cross-Chargeability: A Powerful Benefit in Avoiding the Green Card Backlog

September 18, 2017
Tahreem Kalam

One of the main factors in determining a foreign national’s eligibility to apply for an immigrant visa is based on the foreign national’s place of birth. The Immigration and Nationality Act specifies a per-country limit of no more than 7% of the total immigrant visas that can be issued to nationals of any single foreign country in each of the employment and family preference categories for each fiscal year.

A foreign national applying for an immigrant visa, or “green card,” is “charged” to a foreign country, typically the foreign national’s country of birth, for purposes of determining whether an immigrant visa is available. Nationals of some countries, such as India and China, typically file more green card applications than their available 7% country quota and therefore have to wait years, if not decades, before an immigrant visa becomes available to them.

What is Cross-Chargeability?

Cross-chargeability is an exception to the rule of having to use the country of your birth to determine when an immigrant visa is available to you. Cross-chargeability allows a foreign national to be “charged” or assigned to a country that is different than his or her country of birth. Cross-chargeability can be passed from one spouse to another or from a parent to a child. It cannot be passed from a child to a parent.

For example, if a foreign national born in India is applying for an employment-based green card under the EB-2 or EB-3 category and is married to a spouse born in Poland, the Indian national can choose to be “charged” or considered as a national of India or from Poland. The current wait time for Indian nationals in the EB-2 category is nearly 10 years, whereas there is currently little or no wait time for Polish nationals. By taking advantage of cross-chargeability, the Indian national can bypass the immigrant visa backlog for India by using his or her spouse’s country of birth. Therefore both the Indian national and Polish national will be counted against Poland’s per-country quota.

Note: When using a spouse’s country of birth to apply for an immigrant visa, an immigrant visa must have been filed by BOTH spouses; however they are not required to be filed at the same time. The timing of when a spouse’s immigrant visa must be filed depends on whether the spouses were married before or after the principal applicant became a U.S. permanent resident.

Furthermore, a U.S. permanent resident who already obtained cross-chargeability, whether from a prior spouse or parents, retains such chargeability forever and may confer that alternate chargeability to a future spouse or child if it is more favorable. Children born in a foreign country where neither parent was born or resided at the time of the child’s birth may claim the birth place of either parent.

Cross -chargeability is a powerful benefit that may help foreign nationals expedite their green card processes. If you believe you or a loved one may benefit from cross-chargeability, please contact the attorneys at Minsky, McCormick and Hallagan.

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