Cross-chargeability is a useful tool in employment-based cases when the principal applicant’s visa category has retrogressed. In the event that a principal applicant’s country for an employment-based visa category has retrogressed, the principal applicant may instead use his/her spouse’s country of birth as the country of chargeability. Basically, this means that a family of applicants can move their country of chargeability from one country to another if the principal applicant’s spouse was born in a different country. This is useful because it may allow the family to obtain their visas faster by allowing them to be charged under a different country.
This is particularly pertinent to Chinese EB-5 investors who experienced an EB-5 visa backlog on August 23, 2014 when the Department of State announced that the EB-5 visas for China were unavailable until the beginning of the next fiscal year, which is October 1, 2014. Due to the retrogression, new immigrant visa numbers will not be available to Chinese applicants until October 1st.
However, this limitation only applies to the EB-5 category for China. The other countries remain unaffected and thus EB-5 visa numbers are available for other countries. Therefore, if you apply the principle of cross-chargeability, a family of applicants may be able to jump from the China country of chargeability to another non-China country of chargeability – if the spouse’s country of origin is not China. For example, if the principal applicant is a Chinese citizen who was born in China, but his wife was born in Canada, then within the EB-5 category, the family of applicants could move from the China category to the “Other Countries” category called “All Chargeability Areas Except Those Listed” on the Department of State’s Visa Bulletin. In this case, the family would be charged under that category and an immigrant visa would immediately be available to them since the “Other Countries” category is current. They would no longer be subject to the Chinese visa retrogression, and they would no longer need to wait until October 1, 2014 when the visa numbers become available again.
There are three important notes to keep in mind when applying this rule:
- When discerning country of chargeability, the Department of State looks at the foreign national’s country of origin or place of birth – they do not look at the countries in which you possess citizenship.
- Foreign nationals who are born in Hong Kong are not charged under the China category.
- This principle only applies to the spouse’s country of birth. You cannot use the cross-chargeability principle based on your children’s country of birth.