The Cross-Chargeability Section 202(b)(2) of INA. of the Immigration and Nationality Act (INA)
Specifically, the rule states that: If 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 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 important to properly document, flag and submit I-485 cross-chargeability application so that it may be accepted and approved under this section of INA.
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.
Examples of Cross-Chargeability, potentially jumping up the waiting list and 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 2006 priority date, and it could be a few years before the current EB-3 India cutoff time moves 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 husband's priority date to be processed under the all-other-nationalities (Rest of the World, or ROW) EB-3 category. As a result, a long delay in waiting for the EB-3 India category is bypassed and the family can obtain their green cards within weeks or months (depending on how the application is filed).
A married foreign worker born in China has an EB-2 immigrant visa waiting with a retrogressed priority date. 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 EB-2 category. And if this category is current, there would be no wait time for a current priority date.
USCIS changes things from time to time. We will be happy to provide you with the latest when you contact us.
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