Cross-Chargeability – Gaining a Step Up in the Line for a Green Card
For employment based immigrant visas or what is commonly referred to as “green cards” there are 5 preference categories: EB-1, EB-2, EB-3, EB-4, and EB-5. The total number of employment based green cards that are available each year, 140,000, are allotted as 28.6% for categories EB-1 through EB-3, and as 7.1% for the EB-4 and EB-5 categories. In addition, no more than 7% of the green cards can be issued to natives of any one country. This becomes an issue for applicants from countries that typically have more applicants than the per-country limit would allow for each year, and creates a green card backlog for those individuals until the priority date becomes current. For employment-based green cards, this typically affects applicants from China and India.
Determining Your Country of Chargeability
Your country of chargeablility for green card purposes can be significant, especially if the country is China or India under the EB-2 or EB-3 preference categories. These applicants may have to wait for many years, if not decades, until a green card becomes available. The country of chargeability is determined by your country of birth, not the country where you are a citizen. For example, if an applicant applied under the EB-2 preference category and was born in India, but later became a United Kingdom citizen, then the applicant would be charged to India, since that was his country of birth. This would result in many years of waiting based on the backlog for EB-2 India.
Exceptions and Changing Your Country of Chargeability
There are a few exceptions in which your application can be charged to a country other than your country of birth. One of the more useful exceptions is that the principal applicant can charge based on his spouse’s country of birth. This exception exists to prevent the separation of spouses. Continuing with the example from above, if the principal applicant’s country of birth is India but his spouse’s country of birth is the United Kingdom, then the principal applicant could chose to charge his green card through the process termed “cross-chargeability” to the United Kingdom. By charging the green card to the United Kingdom, the applicant would have little to no wait, rather than waiting many, many years.
Cross-chargeability can work both ways where the principal applicant is using his spouse’s (derivative applicant) country of birth, such as the example above. The derivative applicant, the spouse of the principal, can also use the principal’s country of birth. In order to utilize cross-chargeability based on a spouse’s country of birth, both spouses need to file for a green card to gain permanent residence in the United States. If the derivative spouse has a more favorable country of birth but is not filing for a green card, then the principal cannot charge his green card application to the spouse’s country of birth and must use his own country.
It is not necessary that the principal applicant be married at the time of starting the green card process. Cross-chargeability can be used at any time, so long as the principal meets all the other requirements to adjust his status and is only waiting for his priority date to become current. Modifying the example from above, an unmarried principal applicant from India has an approved EB-2 I-140 Immigrant Petition and has been waiting for his priority date to become current for a few years. If he then marries and his spouse was born in the United Kingdom, then his spouse’s country of chargeability would be the United Kingdom. The principal applicant and spouse (derivative applicant) could then file for adjustment of status immediately based on cross-chargeability to the United Kingdom, shorting the wait time for the principal applicant to obtain his green card and permanent residence in the United States.
Cross-chargeability is a way to help green card applicants from oversubscribed countries obtain permanent residence more quickly. It is always best to consult with an immigration attorney to see if this may be an option based on your personal situation.
By Amanda Cardwell
Amanda is an associate attorney at Reddy & Neumann PC and has been with the firm since 2015. Her practice covers all phases of the PERM Labor Certification process.