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How could marrying a non-China-born spouse benefit my EB-5 application?

I filed my I-526 petition two years ago, but due to the backlog for China-born applicants, I am still unable to enter the U.S even though my I-526 was approved. If I get married to my boyfriend, who was born in a country other than China, can I add him to the application? How could the application benefit from his country of birth? What are the steps?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The idea of designating a spouse from another country other than China is a regularly used and common idea. However, unfortunately in your case it is already too late. It would have been acceptable if you had been married before your petition was approved you would have been able to use your new spouse as the principal/designated petition and have you listed in the petition.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you marry someone in a good-faith marriage who is not subject to the China quota, then your visa becomes immediately available. No waiting line.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Your marriage to a non-China-born individual could significantly reduce your waiting time for an available EB-5 immigrant visa number (current priority date). There is a rule of "cross-chargeability" that says the immigrant visa number can be charged to the country of birth of either the principal applicant or the spouse. A simple email notification to the U.S. Department of State (National Visa Center) should be sufficient. Please note that the cross-chargeability rule does not apply to the country of birth of any children, only the spouse. Also, please note that this rule could help out any applicants born in Vietnam or any other oversubscribed country for immigrant visa purposes (in any immigrant visa category) if they marry someone born in a country that is not oversubscribed.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, you can cross-charge to his country by a sending marriage certificate to the NVC and requesting this.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    I believe that as the primary applicant, it is your nationality that matters.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    In most cases, if your spouse was born in a different country, you can use the spouse's country for getting a green card. So if you get married to someone who was not born in China, you can apply for your immigrant visa and us your spouse's country of birth for quota purposes. This is called the "doctrine of alternate chargeability," and as far as I know, it works for EB-5 as well as other categories.

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    Irina Rostova

    Immigration Attorney
    Answered on

    If you get married prior to receiving your immigrant visa, you can use the country of birth of your derivative spouse for the visa processing. You will just need to add your spouse to the NVC or adjustment of status processing after your I-526 approval.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    After you are married, you should work with your lawyer and file I-824 to add the dependent spouse and ask USCIS to send your approved petition to NVC for processing. The country of chargeability for your spouse would apply after you are married. Your immigration lawyer should be able to advise you on all this, as this is not a difficult process.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Through NVC, a dependent is added and cross-chargeability requested.

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    Melanie Yang

    Immigration Attorney
    Answered on

    Yes, you can add him to your application and file I-485 immediately in the U.S. (use his country quote, cross-chargibility). If in China, you can start the NVC process by submitting a marriage certificate and asking for his immigration fee bill, then do an overseas consulate interview and get an immigrant visa.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    If an individual who is China-born marries a non-China-born individual, the priority date will accelerate based on the doctrine of country chargeability. In other words, they can use the priority date of the nationality of the other spouse.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    As long as you are married before you file for either adjustment of status in the U.S. or start processing for immigrant visa processing abroad, then you can add your spouse to that and take advantage of the cross-chargeability for your spouse's nationality.

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    Charles Foster

    Immigration Attorney
    Answered on

    If one has a bona fide marriage with an individuals born in a country other than China, and if your EB-5 investor petition on Form I-526 is approved, you could cross-charge and not be subject to the Chinese backlog, provided it is a bona fide marriage, which is one entered into for normal marital purposes and, of course, one that is likely to last.

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