Are you stuck in the middle of your permanent residence case because the cutoff date in your visa category retrogressed and you have to wait until your priority date becomes current? Or would you like to apply for the Diversity Visa (green card) lottery but you are a national of a country that is ineligible to participate? A rather obscure immigration law concept called “cross-chargeability” may help you. Chargeability is a term of art. Each foreign national applying for permanent residence must be “charged” or assigned to a foreign state for purposes of determining whether the immigrant visa numerical limitations under the Immigration and Nationality Act apply. The law specifies a per-country limit of 7% of the total immigrant visas that can be released to nationals of any single foreign state in each of the employment and family preference categories for each fiscal year. Nationals of certain foreign countries, specifically India, China and the Philippines, typically file more permanent residence cases than their available 7% per-country quotas and become subject to lengthy visa wait lists. This is why chargeability is so critical: it determines whether your case will be on the visa wait list and how long you must wait before you may become a permanent resident.
How is chargeability determined?
Chargeability is determined by the foreign national’s place of birth. Obtaining dual citizenship or even abandoning one’s birth citizenship does not impact chargeability. For example, a Chinese national who is applying for U.S. employment based permanent residence in the 2nd preference category (EB-2) is currently subject to a visa wait list. This individual remains “chargeable” to China, even if he or she at some point became a naturalized Canadian citizen and regardless of whether he or she gave up their Chinese citizenship.
What is cross-chargeability?
Cross-chargeability means that sometimes a foreign national may be “charged” or assigned to a country that is different that his or her country of birth. It is a neat exception to the general rule of birth country chargeability. Such cross or alternate chargeability may be passed from one spouse to another spouse, from parents to their children, and on rare occasions may be determined by the place of habitual residence. While children may derive alternative chargeability through their parents, parents cannot derive from children. Parents may only derive cross-chargeability from their spouses.
How can spouses or parents pass chargeability?
Children and/or spouses whose birth nationalities are different than the principal applicant’s birth nationality may be “charged” to the principal’s country of chargeability to avoid family separation. To illustrate how chargeability may be passed between family members, consider the following examples:
Principal applicant passing chargeability to a derivative family member:
Albert was born in the United Kingdom and works in the United States in H-1B status. He is married to Ina, who was born in the Philippines. Albert’s employer filed a permanent residence case for him in the EB-3 category. The wait list for nationals of the Philippines in the EB-3 category is several years long but it is only a few months for U.K. nationals. Albert may elect to pass his U.K. chargeability to his spouse so they both are counted as U.K. nationals and their permanent residence cases would be approved at the same time.
Cross-chargeability works both ways: not only may derivative applicants obtain the principal applicant’s chargeability but the principal may obtain the chargeability of any derivative family members as well. In this case, however, both parties are considered to be “principal applicants” and must immigrate at the same time:
Derivative family member passing chargeability to the principal applicant:
Vaibhav, an Indian born national, is married to Jennifer, a Canadian born national. Vaibhav is applying for employment based permanent residence in the 3rd preference (EB-3) category and his spouse is applying with him as his family dependent. The current wait time for Indian nationals in the EB-3 category is more than 10 years. To avoid the long wait time, Vaibhav’s spouse may pass her Canadian chargeability to him. Canadian nationals with EB-3 cases are currently subject to a very short wait list. Both Vaibhav and his spouse may then be counted against the Canadian per-country quota and will avoid long visa wait times.
Cross-chargeability has the potential to not only decrease and even completely eliminate visa wait times. It may also make certain foreign nationals eligible to apply for permanent residence through the Diversity Visa lottery, even if they would have been otherwise prohibited from applying for being nationals of oversubscribed countries.
Cross chargeability for Diversity Visa applicants
The Diversity Visa 2017 application period is currently open and many are considering applying for the “green card lottery.” Cross-chargeability may open up entirely new opportunities for those who are ineligible to apply based on their countries of birth.
Example:
Gao Li, a Chinese national who was born in mainland China, wants to apply in the Diversity Visa (green card) lottery. Chinese nationals are ineligible to apply in the lottery. However, Gao Li is married to Jane, a Hong Kong born national. Hong Kong nationals are eligible to apply in the Diversity Lottery and Gao Li may choose to be cross-charged to his spouse’s country of birth. Both of them may then apply for the diversity visa lottery and both will be counted as Hong Kong nationals. Gao Li and Jane must have been married at the time when they submit their diversity visa lottery entries and they must apply for permanent residence at the same time.
Even if both spouses are eligible to apply in the Diversity Visa lottery, could cross-chargeability give them a better chance of success? This is a distinct possibility for families where spouses have different nationalities. Diversity visas are allocated under a two-step approach among six global geographic regions: first, based on the relative population of each region and second, by giving preference to certain countries in such regions that did not have as many permanent residence admissions to the United States during the past five years as the rest of the countries in the respective region. The trend over the past 15 years has been such that the proportional shares of diversity visas allocated to the South and North America regions have been relatively small as compared to the shares allocated to the Africa, Asia, and Europe regions. If a certain country belongs to a high diversity visa share region and is also underrepresented for U.S. permanent residence purposes, the odds of its nationals being selected in the lottery are generally better.
Example:
Marco, a Venezuelan born national, is married to Victoria, who was born in the Ukraine. Both Marco and Victoria are allowed to apply in the Diversity Lottery based on their individual countries of birth. However, Europe accounts for about a quarter of all diversity immigrant lottery winners whereas South America’s share is only 1-3%. Considering that over the past few years Ukraine has received some of the largest shares of Diversity Visa numbers within the Europe region, Marco may have a statistically better chance of being selected in the lottery by electing to be cross-charged to his spouse’s Ukrainian nationality rather than using his country of birth.
Note that it is impossible to make precise statistical probability inferences for cross-chargeability purposes because of the inherent annual variations in the number of approved U.S. permanent residence cases for each foreign country. At the same time, general trends in diversity visa distributions often provide useful indications whether cross-chargeability may actually help.
It matters when the family relationship was established
It is important to evaluate whether the spouse or child relationship arose before or after the principal applicant became a U.S. permanent resident. If the couple was married or the child was born before the principal’s admission as a permanent resident, the derivative spouse or child are not required to immigrate together with the principal and may be cross-charged to his or her country of birth long after the principal becomes a U.S. permanent resident.
Example:
Ramesh, a Pakistani national, just had his EB-3 employment based permanent residence case approved. Last year, he married Lalita, an Indian national. Lalita lives in the United Kingdom where she studies at a university. She wants to immigrate to the United States to live with her husband but prefers to wait until the school year is over, which would take about nine more months. Lalita may avoid the long EB-3 wait list for Indian nationals by being cross-charged to her husband’s Pakistani nationality. This is regardless that she is going to apply for an immigrant visa almost nine months after her husband’s permanent residence was approved.
If a child is born after the principal applicant becomes a permanent resident but the couple was already married at that time then the child may use the principal’s country of birth for immigration purposes.
On the other hand, if a couple marries after the principal applicant becomes a permanent resident, the principal’s chargeability may be passed only if the spouse and/or child would “accompany” the principal, which means obtaining an immigrant visa within 6 months of the principal applicant’s immigrant visa issuance or within 6 months of when the principal personally appears at a consulate to submit a chargeability request for the spouse and/or child.
Example:
John, a United Kingdom born national, obtained his U.S. permanent residence and then married Marie, a Filipino national. John filed a permanent residence case for his spouse in the F-2A family category. If there is a visa wait list for Filipino nationals, his spouse may elect to be cross-charged to John’s U.K. nationality so that she may “accompany” him to the United States. Unlike the prior example where the couple was married prior to the principal’s permanent residence approval, here John must travel to the Philippines and submit a chargeability request at the U.S. consulate there. Marie will be cross-charged to John’s nationality as long as her immigrant visa is issued within six months from the date when John appears at the consulate.
Principal applicants who were granted cross-chargeability may in turn pass it to derivative family members
A U.S. permanent resident who already obtained cross-chargeability, whether from parents or a prior spouse, retains such chargeability forever and may in turn pass it to a future spouse and/or children, as needed.
Example:
Hui Li, a Chinese national, became a U.S. permanent resident as a derivative child of her father’s employment based case. Her father was born in Hong Kong and Hui Li was cross-charged to Hong Kong so she would not be subject the visa wait list. Hui Li will retain the Hong-Kong country of chargeability permanently. If she later marries a Chinese national and files a family based permanent residence case for him, she may pass the Hong Kong nationality to her husband if this will help reduce his visa wait times.
Chargeability for children born in a state where neither parent was born or had residence at the time of birth
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 of the parents. This typically happens when the child is born in a third-country where the parents were either stationed on a temporary work assignment or vacationing.
Chargeability for foreign national who were born in the United States but are not U.S. citizens
Certain foreign nationals who were born in the United States may not necessarily be U.S. citizens. They may have either lost their U.S. citizenship or never acquired U.S. citizenship at birth because they were not subject to U.S. jurisdiction, as in the case of children of diplomats. Such individuals may now live in the United States and are considering applying for U.S. permanent residence. In general, they would be charged to their country of current citizenship. In the rare event that they do not have a country of citizenship, they would be assigned to their country of last residence.
Conclusion
As illustrated in the examples above, cross-chargeability is a powerful tool that may help foreign nationals expedite their permanent residence cases and also make them eligible to apply in the Diversity Visa lottery. There are various scenarios where cross-chargeability may come in handy and foreign nationals should always remember to evaluate if they may have alternative chargeability options when applying for permanent residence.