Cross-Chargeability

by Victoria Chen, J.D.

 

What is it?

An alien is ineligible to adjust status unless an immigrant visa is immediately available to him or her at the time that the application to adjust status is filed. As you may already be aware, priority dates for people born in India or China are not current for employment-based second preference (EB-2) categories. This means that if you were born in India or China and have an approved I-140 petition filed under an EB-2 category, you will need to wait until your priority date is current before you can file the I-485 to adjust status in order to become a permanent resident. You will also need to wait until the priority date is current before filing an I-765 for an Employment Authorization Document (EAD). Currently, the priority date is September 1, 2004 for people born in India with I-140 approval under the category of EB-2. For people born in China, the priority date is currently April 1, 2008. The U.S. Department of State’s Visa Bulletin is updated monthly with regard to availability of immigrant visas.

If your spouse was born in a country for which the priority date is current, you may be charged to the numerical limitation for your spouse’s country of birth. This often referred to as derivative chargeability or cross-chargeability. 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…

Chargeability applies to both aliens applying for immigrant visas using consular processing and those in the U.S. and applying for adjustment of status.

 

How do I ask the USCIS to apply cross-chargeability to my case?

In a cover letter submitted with the I-485, you should state that you are requesting that the USCIS apply cross-chargeability to your case and explain the basis for doing so. You should also provide documentation to show that cross-chargeability should be applied to your case, i.e. your spouse’s birth certificate, your marriage certificate, and translations of both into English, if needed. You should also use a bright-colored cover page for your I-485 with the request for cross-chargeability in bold lettering.

 

What should I do if the USCIS improperly fails to apply cross-chargeability to my case and my I-485 is denied?

1. Contact your Senator and/or Congressman. They may be able to convince the USCIS to review your case.

2. Call the USCIS National Customer Service Center (NCSC) at 1-800-375-5283. Record the NCSC referral number, or agent name and time of call, if a referral number is not provided. This information will be helpful if you submit an email to the NCSC.

If 15 days have passed since you contacted the NCSC and the issue has not been resolved, you may send a follow-up e-mail with the NCSC referral number or agent name and time of call to ncscfollowup.nsc@dhs.gov.

If you do not receive a response within 21 days of your e-mail, you may contact USCIS Service Center Operations by e-mailing SCOPSSCATA@dhs.gov.

3. File a Motion to Reconsider using Form I-290B. A Motion to Reconsider must be filed within 30 days of the date on the Denial notice, or 33 days if you received it by mail. You may wish to seek the assistance of an attorney with the Motion to Reconsider.

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