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Cross-Chargeability: Using Spouse’s Country of Birth to Beat the per Country Quota

If you will be filing a I-485 application or have an application pending, and you are a national of a country that has a long I-485 backlog (such as India, Mexico, and China), you can jump ahead in line if your spouse is a national of a country that does not have such a backlog. If you are eligible, there are certain criteria and procedures that should be examined in order to make sure your application takes full advantage of this doctrine. Our law firm has successfully represented clients in cross chargeability applications. If you have questions about cross-chargeability, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in numerous immigration matters. Contact us for a consultation.

How does it work?

A foreign national must wait for his or her country’s quota to become current before applying for US permanent resident status (also known as a green card), according to federal regulations. However, under the doctrine of cross-chargeability, a green card applicant may use the country of chargeability of his or her spouse in order to gain a leg up on the per-country quota. If your country has a long wait time for approval of a green card (i.e. India, Mexico, and China) due to over utilization of the green card quota, you may be able to use the country of origin of your spouse to receive your green card sooner that what you had originally anticipated.

Your spouse must be requesting a change to permanent resident status

It is not enough to simply be married to a person who has a more favorable per-country quota. Your spouse must file for adjustment of status as a derivative of your green card application in order to take advantage of cross chargeability.

You must explain to the USCIS that you wish to use cross-chargeability

For best results, applicants who wish to use cross-chargeability must explain to the USCIS why they qualify for the benefits of this doctrine. Without a clear explanation of your intent to use cross-chargeability and the legal reasons that you are entitled to cross chargeability, your request may be needlessly delayed in processing by the USCIS.

I am from India and I filed a form I-485 for adjustment to green card status many years ago. I recently married a citizen of the United Kingdom. Can I use cross-chargeability to receive my green card faster?

Yes, it is possible to use your spouse’s country of chargeability to obtain your green card approval more quickly than you anticipated years ago when you first filed your I-485. Your spouse may apply for permanent residency based on your already pending I-485 application. You could then request that the USCIS treat you as it would treat a citizen of the United Kingdom in regard to the per-country quota. For most of the past decade, many more people from India have applied for green card status than can be issued permanent residency under the per-country quota. However, the United Kingdom currently does not have as many applicants for green card status, and therefore does not possess many of the long backlogs for visas that India currently suffers from. Therefore, using cross-chargeability, you can place yourself into the quota for citizens of the United Kingdom and receive your green card faster.

I filed my I-485 application for adjustment of status years ago, and I have since changed jobs. Will my currently pending I-485 be harmed if I ask the USCIS to suddenly rush the approval of my green card application?

Many people from India and China filed applications for adjustment of status years ago, but their cases are not yet approved due to retrogression of the priority date calculations for each country. If it has been 180 days since you applied for your adjustment of status using Form I-485, you are permitted to change jobs without your current application becoming voided in certain situations. If you have changed jobs since filing your I-485, and your wish to now take advantage of cross-chargeability, we recommend that you speak to an immigration attorney regarding the effect of your job change on the I-485 that you filed many years ago. Often times a legal memorandum or attorney letter to the USCIS analyzing your case under the American Competitiveness in the Twenty-first Century Act of 2002 (AC21) is necessary to ensure approval of your I-485. If you have questions about cross-chargeability, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA to consult with an attorney at the nearest office close to you.

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