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Charging Another Country’s Quota if Visa Number is Unavailable

Every month, the Department of State (DOS) releases a visa bulletin which shows the availability of visa numbers for each preference category. When a particular category is oversubscribed, meaning, the visa demand for a particular category is excessive and could not be satisfied by the number of visas allotted each year, a cut-off date is set by the DOS.

The cut-off date for an oversubscribed category is the priority date of the first applicant whose application for immigrant visa or adjustment of status cannot be processed due to the unavailability of a visa number. The visa applicant will have to wait for his priority date to become current before he can apply for a green card.

The waiting period for a visa number to become available differs depending on the category and the country of chargeability. It can be decades for some countries such as Mexico and the Philippines.

Because of the long wait period, visa applicants should find out if they can benefit from the rule on cross-chargeability.

Green card applicants under the family based preference categories and employment based categories can include their spouse and unmarried children under 21 as derivative beneficiaries. Family members of the green card applicant are counted towards the number of available visas for the principal’s preference category and country of chargeability.

As a general rule, the country of chargeability is the principal visa applicant’s country of birth. If the visa is unavailable for the principal’s country of birth, the rule on cross-chargeability allows the principal visa applicant to get his visa number from the quota of his spouse’s country of birth.

The Department of State Foreign Affairs Manual clarified that if, for example, the principal applicant was born in India and the accompanying spouse in France, the principal applicant born in India may be charged to his spouse’s country of chargeability (France) if the priority date is not current for India.

It further explained that when one immigrant visa applicant can confer a more favorable preference status upon another at the same time the other immigrant visa applicant confer a more favorable foreign state chargeability, both applicant may be considered principal aliens. In this case, the consular officer may charge the principal applicant’s visa to his spouse’s quota, only if the principal applicant and the spouse simultaneously apply for immigrant visa and admission.

When applying for adjustment of status, the principal applicant and the spouse must both file their separate I-485 applications with the spouse filing as a derivative beneficiary. The principal applicant must show that he is qualified to benefit from the rule on cross-chargeability.

As to the accompanying or following to join child, the rule on cross-chargeability also allows the child to be charged to the foreign state of either parent. The rule on cross-chargeability, however, does not allow parents to be charged to the foreign state of their child.

Also, if a green card applicant was born in a country where neither parent resided or was born, he may be charged to the foreign state of either parent.

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