Immigration Insights
An applicant born in a country with a long green card backlog may be able to use their spouse’s country of birth instead, applying through a process known as green card cross-chargeability. Because the visa bulletin sets separate cutoff dates by country, this can change the timeline of a green card case significantly. The rule comes from Section 202(b) of the Immigration and Nationality Act (INA) and applies to family- and employment-based preference cases, whether the green card is sought in the United States or through a consulate abroad. Both spouses must be eligible, and their cases, if approved, are approved together. A child may also use either parent’s country of birth under the same process.
How Cross-Chargeability Works
7%
Per-country cap
No single country may receive more than seven percent of the family- and employment-based preference visas issued by the United States each year. Each applicant is counted (or “charged,” hence “cross-chargeability”) against the country where they were born.
This means that the cutoff date in the visa bulletin for an applicant’s country of birth is the cutoff date that governs their case. When an applicant’s priority date (the filing date that fixes their place in line) is earlier than the cutoff date listed for their country and category, a visa is available. How the per-country limit produces backlogs is explained in our guide to why the visa bulletin may not be moving.
Section 202(b) of the INA sets out exceptions to the country-of-birth rule, intended to prevent the separation of families whose members were born in different countries. Those exceptions are collectively referred to as cross-chargeability.
Cross-Chargeability Through a Spouse’s Country of Birth
In an example set out by the Department of State, an EB-2 applicant born in India is married to a spouse born in France. When the priority date is current for France but not for India, the applicant may be charged to France, and both spouses may proceed together under the shorter timeline.
Applicant born in
India
EB-2 priority date not current
Charged to spouse’s country
France
Priority date current
A principal applicant may apply using a spouse’s country of birth when:
- The priority date is earlier than the cutoff date for the spouse’s country in the applicant’s category
- The spouses were married before the principal applicant became a permanent resident, and the marriage continues through approval
- The spouse is immigrating at the same time and is independently eligible to adjust status or receive an immigrant visa
- Both spouses’ applications are approved, or both visas are issued, at the same time
In this arrangement, both spouses are treated as principal applicants. Neither application may be approved ahead of the other. When visas are issued abroad, both spouses must be admitted to the United States together, and neither may enter before the other.
Cross-Chargeability Through a Parent’s Country of Birth
Derivative Children
A derivative child may be charged to the country of either parent, typically whichever is more favorable. However, a parent may not be charged to a child’s country of birth.
Born Where Neither Parent Was Born or Residing
A separate provision applies to an applicant born in a country where neither parent was born and neither parent was residing at the time of the birth. That applicant may be charged to the country of either parent. The Department of State applies this provision where, for example, the parents were stationed in the country of birth on assignment for an employer based elsewhere. Unlike the spousal rule, this exception does not require a parent to be immigrating alongside the applicant.
How to Request Cross-Chargeability
Adjustment of Status (USCIS)
In a case filed with USCIS, both spouses file Form I-485 for adjustment of status, which is the process of applying for permanent residence from within the United States. The request for cross-chargeability is ordinarily set out in a cover letter citing INA 202(b) and supported by the spouse’s birth certificate and the marriage certificate, with certified English translations where needed.
The usual visa bulletin rules apply, with the spouse’s country column substituted for the applicant’s. USCIS announces each month whether the Dates for Filing chart or the Final Action Dates chart governs new filings, and approval requires the priority date to be current under the Final Action Dates chart for the spouse’s country.
Consular Processing
In consular processing, the consular officer applies cross-chargeability when the visas are issued. Both visas are issued at the same time, and both spouses enter the United States together.
Limits on Green Card Cross-Chargeability
The Spouse’s Eligibility
One common obstacle is eligibility. A spouse who has fallen out of status, is subject to the two-year home residency requirement that applies to certain J-1 exchange visitors, or is otherwise inadmissible cannot confer their more favorable priority date onto their spouse.
Divorce or a Spouse Not Immigrating
Divorce before approval ends the arrangement, as does a spouse’s decision not to immigrate. Because both applications must be approved together, the principal applicant cannot adjust first and bring their spouse later while still relying on cross-chargeability with their spouse’s country of birth.
Backlogs and Retrogression
Even with cross-chargeability, visa category and priority date stay the same—so in cases where the spouse’s country is also backlogged in that category, or where the category is backlogged for every country, nothing is gained. Cutoff dates for the spouse’s country can also retrogress (move backward) before approval, in which case the case waits until a visa is available again.
Frequently Asked Questions About Green Card Cross-Chargeability
Does my spouse have to be physically present in the United States?
Not necessarily, but your cases must progress together. For example, in an adjustment of status case, both spouses must be in the United States and eligible to adjust. Where one spouse is abroad, the case generally proceeds through consular processing, because neither spouse may be approved ahead of the other.
Does cross-chargeability apply to family-based green cards?
Yes. Cross-chargeability can apply to the family-sponsored preference categories as well as the employment-based categories, if a spouse or child is immigrating as a derivative. However, immediate relatives of U.S. citizens, such as spouses and unmarried children under 21, are not subject to annual limits and therefore likely have no need for it.
Can my children use the country I am charged to?
Generally, yes. A derivative child may be charged to the country of either parent, and the Department of State treats an immigrant who received a more favorable chargeability as keeping it, so a principal applicant charged to a spouse’s country can pass that country to a child immigrating with them.
Review Your Chargeability Options With Our Attorneys
For over three decades, Scott D. Pollock & Associates, P.C. has represented individuals, families, and employers in employment-based immigration and family-based cases. Our attorneys review questions of eligibility, confirm which country and chart apply, and coordinate the filings so that neither application progresses ahead of the other. Consultations are available in English, Spanish, French, and Russian.
Call 312.444.1940 or fill out our online contact form to schedule a consultation about green card cross-chargeability.
For questions and/or to arrange a consultation with one of our attorneys contact us now
