Foreign state chargeability is the accounting method mandated by the Immigration and Nationality Act (INA). It is used by the Visa Office of the State Department to determine against which country’s allotted visas to subtract, or “charge,” an immigrant visa number for a particular applicant.
Under the INA, an immigrant visa applicant is chargeable to the country of his or her birth. The country of citizenship or nationality does not control.
Four exceptions to the general rule on foreign state chargeability are included in INA § 202(b). The INA provides for cross-chargeability in the following instances:
- A child may be charged to the foreign state of either parent that the child is accompanying or following to join.
- A spouse may be charged to the foreign state of a spouse that he or she is accompanying or following to join.
- A person born in the U.S. who in some manner loses his or her U.S. citizenship or was not accorded citizenship at birth may be considered as having been born in the country in which he or she is currently a citizen or subject or, if there is no such state, in the last foreign country in which he or she had a residence, as determined by the consular officer.
- A person born in a foreign state where neither of his or her parents were born or had a residence at the time of the person’s birth may be charged to the foreign state of either parent. The person’s parents are not considered to have acquired residence in the place of the person’s birth if at the time of his or her birth the parents were temporarily visiting that place or were stationed in a country under orders or instructions from an employer, principal, or superior authority foreign to that country.
Under the first two exceptions set out above, a child or spouse may be charged to the foreign state of his or her parent or spouse whether he or she is “accompanying” or “following to join” the parent or spouse.
The person who confers cross-chargeability benefits on a spouse or child is not required to be the principal immigrant. For example, the beneficiary of the immigrant visa petition can confer cross-chargeability benefits, as long as the person from whom the beneficiary draws cross-chargeability benefits is in the physical company of the principal immigrant at the time of immigrating. Under this rule, then, a beneficiary of an employment-based immigrant petition may be charged to the country of origin of his or her derivative spouse, if this action would accord the beneficiary an immigrant visa sooner than would being charged to his or her own country of origin.
When cross-chargeability benefits are derived from the derivative spouse, those benefits apply only when the principal and derivative spouse simultaneously apply for an immigrant visa and admission to the United States. The principal and derivative spouse must be in the physical company of one another in these circumstances. Thus, the principal deriving cross-chargeability benefits from a spouse cannot precede the spouse to the United States and the derivative spouse cannot precede a principal beneficiary of an immigrant visa petition to the United States. The rationale behind simultaneously adjusting status is clear – the rule aims to prevent the separation of husband and wife or parent and child.
USCIS policy is to apply the rules of cross-chargeability to adjustment of status applications. When cross-chargeability benefits are sought for the principal applicant, the same rule applies as stated above: the principal and the derivative from whom benefits are derived must apply for adjustment of status simultaneously.
To apply for adjustment of status and avail the cross-chargeability benefit, several documents must be presented including:
- Marriage certificate,
- Passport cover photos of both applicants, and
- Underlying petition approval notice (if applicable).
If you believe cross-chargeability would be beneficial for you and your family, please contact us and our attorneys will guide you through the Adjustment of Status process.
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