Visa Bulletin Considerations: Foreign Chargeability

What Is Foreign State Chargeability?

Foreign state chargeability is the accounting method mandated by the Immigration and Nationality Act (INA) and used by the U.S. Department of State’s Visa Office to determine which country’s annual visa allocation an immigrant visa number is charged against for a particular applicant.

Under the INA, an immigrant visa applicant is generally chargeable to the country of birth. The country of citizenship or nationality does not control chargeability.

Statutory Exceptions and Cross-Chargeability

The INA provides four statutory exceptions to the general rule of foreign state chargeability under INA § 202(b). These exceptions, commonly referred to as cross-chargeability, may allow an applicant to be charged to a different country when doing so would result in earlier visa availability.

Cross-chargeability may apply in the following circumstances:

• Children may be charged to the foreign state of either parent they are accompanying or following to join.
  
• Spouses may be charged to the foreign state of the spouse they are accompanying or following to join.
  
• Individuals born in the United States who were not accorded U.S. citizenship at birth or who later lost citizenship may be considered as having been born in the country of current citizenship or last foreign residence, as determined by a consular officer.
  
• Individuals born in a foreign country where neither parent was born or had a residence at the time of birth may be charged to either parent’s country of birth, provided the parents were only temporarily present in the country of birth.

Accompanying and Following-to-Join Rules

Under the first two exceptions above, a spouse or child may be charged to the foreign state of the parent or spouse whether the family member is accompanying or following to join.

The individual who confers cross-chargeability benefits does not need to be the principal immigrant. For example, a beneficiary of an employment-based immigrant petition may be charged to the country of origin of a derivative spouse if doing so would result in earlier visa availability, provided the applicable requirements are met.

Simultaneous Filing and Physical Presence Requirements

When cross-chargeability benefits are derived from a derivative spouse, those benefits apply only when the principal and derivative spouse apply for immigrant visas or adjustment of status simultaneously and are in the physical company of one another.

Under this rule:

• The principal applicant cannot immigrate before the derivative spouse, and
  
• The derivative spouse cannot immigrate before the principal applicant.
  

The purpose of this requirement is to prevent the separation of spouses or parents and children.

USCIS also applies these same cross-chargeability rules to adjustment of status applications, including the requirement for simultaneous filing when benefits are sought for the principal applicant.

Documentation for Cross-Chargeability Requests

To request cross-chargeability benefits in the context of adjustment of status, applicants typically must submit documentation including:

• A marriage certificate (if applicable)
  
• Passport biographic pages for both applicants
  
• The underlying immigrant petition approval notice (if applicable)
  
• Additional documentation may be required depending on the facts of the case.
• Underlying petition approval notice (if applicable).

Assessing Chargeability Options

If you would like to learn more about chargeability or if you believe cross-chargeability would be beneficial for you and your family, please contact us and we will guide you through the Adjustment of Status process. We may be reached here on our form here, over email at info@eoimmigration.com, or over the phone, at (305) 391-2105.