Cross Chargeability for Adjustment of Status? What is it and can I benefit from it?
7 attorney answers
The attorney who advised you about cross chargeability appears to be correct. Generally speaking, since you spouse is from another country, your immigrant visa can be charged to the quota for that country (in this case apparently El Salvador) provided your wife immigrates with you at the same time and either "accompanies" or "follows to join" you. These are terms of art under U.S. immigration law and your wife's immigration status will be relevant in determining whether you can be charged aganst the quota for El Salvador in lieu of Mexico ( a substantial improvement).
The fact that you have consulted with thee other attorneys who did not know anything about cross chargeability can only lead to the conclusion that they do not have significant immigration law experience. Consult with a Board Certified Immigration attorney who can review your case and advise you about cross chargeability and its practical application to your case. Many attorneys will conduct consultations via telephone or Skype for clients outside their local area.
While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for general information purposes only and an attorney/client relationship is neither intended nor created. You should seek out qualified counsel to review your case and provide you with advice specific to your situation. Review Mr. Devore's Avvo Profile for more information about his expertise in immigration law and how to contact him to discuss your case.
"Cross-chargeability' allows a person to use the priority date of his spouse's country of birth, if the spouse was born in a different country, and if the priority date for the spouse's country is faster. Under "cross chargeability," a spouse who is being petitioned (principal beneficiary), may use the faster priority date of his accompanying spouse's country of birth (derivative beneficiary).
The rule is set by the Section 202(b)(2) of INA. Specifically, the rule states that:
[I]f an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year.
Since petition was filed by your brother, the US citizen, you belong to Fourth preference category. (F4 Brothers and Sisters of Adult U.S. Citizens). Visa Bulletin for December 2014 shows that visa number currently become available for beneficiaries whose priority date under Fourth preference category for El Salvador is February 22, 2002, for Mexico is March 01 1997. The priority date for your spouse's country became available almost 4 years ago. You should take advantage of this and proceed with paperwork immediately to become permanent residents. I would highly recommend you to hire an attorney for this case due to it complexity. Wish you luck.
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That term applies to DV lottery circumstance when you can use the wife's citizenship to qualify if your country is not included. For brotherly petition, I am afraid you will have to wait for your priority.
The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter,not should it be viewed as establishing an attorney client relationship of any kind.
Mr. Segal: Thanks for the quick reply, but how do you explain your answer over 1 year ago on a similar question it appears - http://www.avvo.com/legal-answers/cross-chargeability----family-category-1224820.html?logged_in=true&logged_in=true
I do not see inconsistency. You can "request" but there is no changeability rule for that situation. We then suggested you how to TRY and proceed. The argument would be that the two spouses are applying together and Poland based PD moves faster. Please see below: http://www.state.gov/documents/organization/87838.pdf Also See: Specifically, section 202(b)(2) of The Immigration and Nationality Act (the Act) states: [I]f an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) of this section for that fiscal year…
As you can see it is not black and white
So Mr. Segal: Sorry to bug you, but I'm trying to clarify. So under 202(b)(2) which you reference, do you think I can file using my wife's country of chargeability (El Salvador) if we will file for Adjustment of status at the same time? This is important to us since my wife's country has a preferential priority date over Mexico and I am looking for solid answer. It's clear I will need an attorney when I have differing opinions by attorneys.
Again, You can TRY and you should TRY but it is not that you can be sure you will GET IT.
Thanks a lot!
Yes, cross chargeability is available, but only if the visa petition filed by your brother is current for El Salvador, and you say it is. However, you should retain the services of the first attorney, because the immigration officer may not be familiar with the cross chagreability rule.
The herein content is for general informational purposes only, and may be predicated on incomplete facts. It should not be relied upon in making legal decisions or assessing your legal rights or risks. Neither does the herein reply create an attorney-client relationship.
I have successfully used cross chargeability in a similar situation.
The first attorney is correct. Section 42.12 of 22 C.F.R. and INA §202(b) determine to which country an immigrant’s visa is “charged” with respect to the per country visa issuance limitations of the INA. The general rule is that an immigrant’s visa is charged to the immigrant’s country of birth, not citizenship. However, there are exceptions to chargeability based upon country of birth. For example, an accompanying spouse can charge to the country of the principal spouse, and vice versa. Under your scenario, we can use your wife's country of birth and apply for adjustment of status. You could have done this years ago.
The answer provided is general in nature and because not all facts are known, it should not be construed as legal advice. The answer does not create an attorney/client relationship.
It does not work for the scenario that you are talking about. Unfortunately, you will have to wait out your time.
William Quirk, Esq. Meehan & Quirk, LLC. The answers to questions provided by Mr. Quirk are for general purposes only and do not establish an attorney-client relationship. This information is for informational purposes only and does not form any relationship between the individual asking the question and the attorney. You should investigate and consider all possible outcomes with a skilled individual before making a final decision.
I will have to respectfully disagree with my colleagues above. "Cross chargeability" is not only applicable in the visa lottery cases, but also in employment, and family-based cases. Specifically, 22 CFR 421.2 (c) carves out an Exception for spouse with respect to "Chargeability". It states "If necessary to prevent the separation of husband and wife, an immigrant spouse, including a spouse born in a dependent area, may be charged to a foreign state to which a spouse is chargeable if accompanying or following to join the spouse, in accordance with INA 202(b)(2). This is also cited in 9 FAM 42.12. In fact, there are resources that talk about how this seems to be limited to third and fourth preference category cases. Your case is a 4th preference (brother/sister) case. See here - https://cliniclegal.org/sites/default/files/Chapter%201_0.pdf page 7-8.
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