+1-800-997-1228
Questions & Answers

How does cross-chargeability work for EB-5 applicants?

I am applying from China and was planning on being the principal EB-5 applicant. However, my wife was born in Hong Kong, and from what I understand, we can use this as a workaround to avoid retrogression wait times. What are the rules for cross-chargeability? How does it work for EB-5 applications? Can we still use cross-chargeability if our child was born in mainland China?

Answers

  • Avatar

    John J Downey

    Immigration Attorney
    Answered on

    I would make your wife the principal thereby avoiding the retrogression.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Perhaps. You may have your wife be the actual investor/petitioner/applicant. Please retain U.S. immigration counsel for assistance.

  • Avatar

    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Cross-chargeability works by assigning the country of birth of either the principal applicant (petitioner) or the spouse to the entire case. In other words, the chargeable country of birth for purposes of determining the priority date classification is the country of birth of the petitioner or the petitioner's spouse. The child's country of birth does not affect chargeability. Therefore, your entire family, including any children born in China, will be able to benefit from your wife being born in Hong Kong.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    Yes, if your wife was born in Hong Kong, you could use her nationality for determining the visa availability - follow Hong Kong rather than Mainland China visa availability. Where your child was born does not matter as long as one of the spouses has Non-Mainland China birth. Recently, NVC has been just issuing one visa fee bill to the main investor applicant without issuing the fee bills for the whole family. This means NVC may just look at your birth place rather than paying attention to your wife's and simply send you a letter stating that they received the file from USCIS, but there are no visa numbers available for Mainland China. Thus, if you get a notice from the National Visa Center stating, due to unavailability of the visa numbers for Mainland China based on your I-526, you should have your attorney email NVC to make sure that they issue the visa fee bills based on your wife's birth place and for the whole family.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    Cross chargeability only works between spouses and then would apply to the whole family.

  • Avatar

    Denyse Sabagh

    Immigration Attorney
    Answered on

    Cross-chargeability applies to the spouses not children. If one spouse is born in a country in which there is backlog, but the other spouse is born in a country in which there is no backlog, the State Department can use the cross-chargeability rules and apply the priority date to the spouse's country of birth which has the most beneficial date.

  • Avatar

    Stephen Berman

    Immigration Attorney
    Answered on

    You can use your wife's country of birth regarding visa availability. So if the EB-5 is not current for China, but is current for Hong Kong, you can use Hong Kong.

Add your comment

Use a Facebook account to add a comment, subject to Facebook's Terms of Service and Privacy Policy. Your Facebook name, photo & other personal information you make public on Facebook will appear with your comment.