By rule, aliens applying for Permanent Citizenship to the U.S. are “chargeable” to the country in which they were born, with certain limited exceptions. Therefore, a beneficiary who is a citizen of Canada but was born in India will be considered “chargeable” to India and not Canada. Consequently, the beneficiary will be subject to the cut-off dates established for India and get delayed.
Cross-chargeability as defined by INA
There is a possible way out of these backlogs for some of these individuals. According to Sections 202(b) (1) and (2) of the Immigration and Nationality Act (INA), a derivative applicant (an alien who is accompanying his or her spouse or parent to the U.S.) may be charged to the country of which the principal applicant (spouse or parent) is a citizen, if it would be beneficial to do so.
For example, consider a situation where an EB3 I-140 beneficiary was born in Uganda, while his wife and child were born in India. If India has a cut-off date and EB3 visa numbers are current for Uganda, the wife and child can accompany the principal applicant to the U.S. and be counted against the number of EB3 visas available “worldwide” rather than against India.
Cross-chargeability as defined by FAM
While aliens who apply for adjustment of status in the United States are subject to the rule as outlined in the INA, aliens applying for immigrant visas using consular processing are instead governed by the cross-chargeability rules in the Foreign Affairs Manual (FAM).
The FAM is more expansive in its interpretation of cross-chargeability. It allows not only for derivatives to be charged to the country of the principal applicant, but for the principal applicant to be charged to the country of the derivative applicant as well.
Thus, for example, an EB3 I-140 beneficiary who is from India and marries a Ugandan citizen can be charged to Uganda if his/her priority date is current according to the cut-off date, if any, worldwide. Note that this option is only available if the applicant uses consular processing.
While technically, adjustment of status applicants should be governed by the INA provisions, AILA has successfully persuaded USCIS offices to apply the Department of State (FAM) cross-chargeability rules to adjustment of status applications.
However, there are no guarantees that this would work in the adjustment of status setting. While the cross-chargeability provisions in the Immigration and Nationality Act and in the FAM will not help everyone, they may provide some relief for applicants who were born in different countries from their spouse or children.