Many foreign nationals striving to become Lawful Permanent Residents (LPRs) in the United States encounter extended delays in visa number availability. This post aims to provide a comprehensive understanding of the cross-chargeability rules, which can play a significant role in expediting the Green Card process.
Why Chargeability Matters
Chargeability rules are crucial due to the capped number of foreign nationals who can attain LPR status each year. High-demand countries like India and China often become oversubscribed, leading to the excessive backlogs many applicants experience.
Chargeability
Chargeability refers to the country to which an applicant for an immigrant visa is attributed for the purpose of numerical limitations. It usually corresponds to the person’s country of birth. However, there are some exceptions, particularly concerning families and spouses.
Cross Chargeability
Cross chargeability allows family members to be charged to a different country than their country of birth under certain circumstances. This can be beneficial in cases where one country’s visa quota is oversubscribed, meaning there are more applicants than available visas for that country. In such cases, an applicant may be able to utilize the quota of another, less oversubscribed country.
Chargeability to a Spouse’s Country of Birth
In the context of spouses, cross-chargeability permits an applicant to be charged against their spouse’s country of birth rather than their own. If one spouse’s country of birth has a more favorable quota, then using the spouse’s country of birth for chargeability purposes can help in obtaining a visa more quickly.
This provision can have a profound effect on couples where one spouse is from a country with a long waiting time for a Green Card. By enabling the spouse to be charged to the other spouse’s country of birth, the waiting time can be reduced significantly. This facilitates a more efficient and smoother immigration process for families. This provision is not automatically applicable; certain requirements must be met:
- Both spouses must be approved for and receive their immigrant visas simultaneously, and
- The marriage must be valid at the time of visa application and issuance.
If a principal applicant takes advantage of cross-chargeability, it might also affect the chargeability of dependent children. They can be charged to the same country as the principal applicant, potentially enjoying the same benefits of a reduced waiting period.
Minor Children: Chargeable to Either Parent’s Country
“Minor Children: Chargeable to Either Parent’s Country” refers to the ability of minor children to be attributed to either parent’s country of birth for visa allocation purposes. This provision seeks to facilitate family reunification by allowing greater flexibility in the application of numerical limitations on visas, without allowing the principle to be misused by the parents.
“Just Passing Through” Exception
The “Just Passing Through” exception is a term in the context of Green Card chargeability rules that addresses a unique and rare scenario where a child is born in a country where neither parent was born nor had a residence at the time of the child’s birth. This nuanced exception can provide an alternative pathway in determining the country of chargeability for the child’s Green Card application. Here’s a closer look:
- Context and Applicability – In most situations, a person’s country of chargeability is determined by their country of birth. However, transient circumstances may lead to a child being born in a country that doesn’t have a significant connection to the family. This is where the “Just Passing Through” exception comes into play.
- Detailed Scenario – Consider a couple who were both born and ordinarily reside in Country A. While on a temporary visit or stopover in Country B, they have a child. Neither parent has a residence in Country B nor were they born there. In this situation, the child’s birth in Country B is considered incidental.
- Utilizing the Exception – Under the “Just Passing Through” exception, the child may opt to be charged against either parent’s country of chargeability (in this example, Country A) rather than the country of their actual birth (Country B). This option could prove advantageous if Country B has a higher backlog in the Green Card process compared to Country A.
- Documentation and Proof – To apply this exception, proper documentation and proof must be submitted, demonstrating that neither parent had established residence in the country of the child’s birth at the time. This might include travel records, temporary visas, or other evidence showing the transitory nature of the parents’ presence in that country.
Conclusion
While the rules concerning visa chargeability may appear straightforward, exceptions do exist, and understanding them can be pivotal in the Green Card application process. Professional consultation can further elucidate these complex rules and ensure that all potential advantages are explored.
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You may have questions regarding cross-chargeability and the U.S. green card process. We invite you to reach out to our team at Richards and Jurusik for detailed guidance and assistance. Our goal is to provide you with the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people to work and live in the United States. Read some of our hundreds of 5-star client reviews! Contact us today for an assessment of your legal situation.
