If you’ve been following the monthly Visa Bulletin released by USCIS, you may have noticed that it has been less than optimal for many applicants. Those from India, China, Mexico, and the Philippines have had it particularly hard. The Visa Bulletin categorizes the cutoff dates for green card applicants who are current and can have a green card available and issued to them. As we’ve pointed out in our monthly Visa Bulletin analysis, there has been stagnation for applicants in the employment-based India category, and very long wait times before a priority date will be current for them. However, there is hope for some, who may circumvent the long waits by taking advantage of the cross-chargeability rule, which applies to I-485 adjustments of status and consular processing immigrant cases.
What is the Cross-Chargeability Rule (Skipping the Line)
The definition of cross-chargeability, as defined by Section 202(b)(2) of the Immigration and Nationality Act (INA):
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 under subsection (a)(2) for that fiscal year;
In basic terms, some applicants can move their country of visa chargeability to another one if their relative was born in another country. Typically this is applicable for a spouse’s country of birth. Note that the government mandates that both of these spouses seek permanent residency in the U.S. together.
Is it possible to use a child’s country of birth with the cross-chargeability rule?
No, parents cannot do this.
It’s essential to be aware that this rule can be applied to I-485 adjustments of status and consular processing immigrant cases. However, the government does not require it to be applied in such a way. The government reserve the ability to apply it. Consult a VisaNation Law Group attorney to learn if this cross-chargeability option can work for your case. Their office has personally been able to submit cross-chargeability applications with the necessary supporting documentation and had them approved under the rule.
Example of the Rule In Action
Say, for example, an Indian national in the EB-2 category has a priority date of May 2019. However, as of the March 2020 Visa Bulletin, the cutoff date for EB-2 India is January 2017. Only cases with earlier priority dates can get green cards. The cross-chargeability rule would come into play here because the applicant’s spouse is born in France. This allows the government to process the priority date under the rest-of-the-world category, therefore getting the green card faster.