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Cross-Chargeability of Immigrant Visa
A beneficiary of an employment based immigration petition (I-140), along with his/her family members, is eligible to file adjustment of status (I-485) if an immigrant visa number is available to him or her. A beneficiary’s visa number is available if his/her priority date is prior to the “cut-off date” published by the Department of State in its monthly visa bulletin.
The priority date is the date that an alien initially expresses his/her intent to immigrate to the United States through an appropriate petition. For an employment-based immigration petition, the priority date is the date of the filing of the labor certification application (PERM) or the date of the filing of the I-140 or other immigrant petition when labor certification is not required (EB-1, EB-4, EB-5, and NIW). In general, the spouse and minor children of the principal applicant will be assigned the same priority date as the principal applicant.
Under the current visa number allocation system, each country is assigned a limited number of immigrant visas every year. If the visa number for a particular country is oversubscribed, applicants born in that particular country will be subject to visa retrogression and have to wait for the priority date to reach the published cut-off date. Please note, it is the applicant’s country of birth rather than nationality or citizenship that determines the availability of visa numbers to him/her.
However, there is a “cross-chargeability” exception that allows the visa number for a principal applicant to be charged to the country of birth of the accompanying spouse if the visa number for the same category for the spouse’s country of birth is available or has a shorter wait for visa numbers to become available. In addition, alien children may be charged to the foreign country of either parent when accompanying or following to join their parent(s). Please note, however, the children’s place of birth will not offer benefit to their parents with respect to the cross-chargeability rule.
For example, Dr. Chen is a Post-doc born in China and his wife was born in China too. Dr. Chen wants to file his I-140 petition under the EB-2 NIW category. Can Dr. Chen file his I-140 & I-485 concurrently? Now, as of October 1, 2012, the “cut-off date” for EB-2 (NIW) immigration category for petitioners born in China is July 15, 2007. There is no current visa number for EB-2 China-born applicants. Therefore, Dr. Chen cannot concurrently file I-140 & I-485 petitions. He can only file his I-140 for the time being. If Dr. Chen filed his I-140 petition on or before July 14, 2007 he and his wife could file I-485 petitions now as visa numbers for them are available.
However, if Dr. Chen’s wife was born in Korea, he can use the visa number of Korea. As for the time being (October 1, 2012), visa numbers are available (cut-off date is “Current” in the visa bulletin) for EB-2 applicants born in Korea. Dr. Chen and his wife could file I-485s concurrently with Dr. Chen’s NIW I-140 petition if Dr. Chen’s visa number could be charged to Korea’s visa numbers.
In addition, if Dr. Chen and his wife were both born in China but their son was born in Korea, Mr. Chen could not use the available visa numbers of Korea since a child’s place of birth does not benefit the parents with respect to cross-chargeability. Dr. Chen and his wife cannot file I-485s concurrently with Dr. Chen’s NIW I-140 petition, even though their son is chargeable to Korea and not mainland China.
(Updated 10/4/2012 by AD)
Founded in 1996, Zhang & Attorneys, L.P. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Attorneys, L.P., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past thirteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (firstname.lastname@example.org) for a free evaluation.
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