Use the Chargeability Rule to File Form I-485 Application

Question:

My wife and I were born in different countries, and we are waiting for the immigrant visa to become current to file Form I-485 application to get our Green Card. A friend of my mentioned the "chargeability". How could I use my wife's visa number for "cross-charge" to file Form I-485 application?

Answer,

 Immigration to the United States is numerically limited. This is controlled by an annual allocation of immigrant visa numbers. Each family-based immigrant category and employment-based immigrant category has its own limited immigrant visa number. Additionally, there is a per-country limit of 7 percent of the total immigrant visa numbers.

 The maximum number of family-sponsored and employment-based preference visas that can be issued to citizens of any country in a fiscal year. The limits are calculated each fiscal year depending on the total number of family-sponsored and employment-based visas available. No more than 7 percent of the visas may be issued to natives of any one independent country in a fiscal year. Because of the combined workings of the preference system and per-country limits, most countries do not reach this level of visa issuance.

 The foreign state of chargeability is a United States immigration concept – it is the country determined to be the applicant's origin. In general, the applicant's country of birth will determine their country of chargeability. For certain applicants born in oversubscribed countries such as India and China, approval to be chargeable to another country can significantly reduce the waiting time for their adjustment of status or consular processing of their green card application. This process is also known as alternate chargeability.

 The basic rule of chargeability is that one is charged against the quota for  the country of his or her birth. This determination is not tied to citizenship or nationality. A person born in a particular country is subject to that country's quota. For example, a potential immigrant is born in India. He subsequently becomes a Canadian citizen. Unless this individual fits within one of the exceptions discussed below, he will still be subject to the backlogged quota for India, even as a Canadian citizen.

 In some circumstances, an immigrant can cross-charge to the country available to his or her spouse (provided that the spouse is immigrating also). For example, cross chargeability would usually be available if a person born in India were to marry a person born in Canada. If a U.S. employer filed an employment-based, second-preference (EB2) petition on behalf of the individual born in India, she or he would be able to use the Canadian chargeability, if immigrating with the spouse. Historically, this would mean immediate eligibility for immigration benefits under the Canadian quota, rather than many years of waiting under the heavily-backlogged Indian quota.

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