Visas and the queue
Cross-chargeability
Also called cross charge, spouse chargeability.
Cross-chargeability is the rule that charges an applicant's immigrant visa to a spouse's or a parent's country of birth instead of their own, so that a family facing different per-country queues is not separated.
What it decides
Cross-chargeability is the statutory exception to charging an immigrant to the country of birth, set out in 8 U.S.C. 1152(b). Under 1152(b)(2) an applicant chargeable to a different foreign state from a spouse may instead be charged to "the foreign state of the spouse he is accompanying or following to join", but only "if necessary to prevent the separation of husband and wife", only if that spouse has received or would be qualified for an immigrant visa, and only if the borrowed country has not already reached its per-country level for the fiscal year. Section 1152(b)(1) gives the parallel rule for a child charged to either parent. 22 CFR 42.12(c) restates the spouse exception and 42.12(b) the child exception for consular cases. USCIS Policy Manual Volume 7, Part A, Chapter 6, Section C.7 confirms the spouse rule runs both ways: the principal may cross-charge to the derivative spouse's country, and the derivative spouse to the principal's. A child may cross-charge to either parent; a parent may never cross-charge to a child. Direction changes the mechanics. A derivative who uses the principal's chargeability may adjust status with the principal or at any time afterward. When the principal uses the derivative spouse's chargeability, USCIS treats both as principal applicants, one conferring the immigrant classification and the other the more favorable chargeability, and approves both adjustment applications at the same time. In adjustment cases USCIS requires both applicants to be eligible to adjust; that condition belongs to adjustment and not to consular processing. In EB-5 this is what lets an investor born in an oversubscribed country take the chargeability of a spouse born elsewhere, provided the spouse immigrates with or after the investor.
Related terms
- Country of chargeabilityCountry of chargeability is the foreign state against whose per country visa ceiling an applicant is counted, set by place of birth rather than by citizenship, passport or current residence, subject to four narrow exceptions.
- BacklogBacklog is the demand already waiting ahead of an investor in the same visa category, the same country of chargeability and, since the 2022 set-asides, the same reserved or unreserved pool, which must be worked through before a visa number reaches them.
- Per country limitThe 7 percent ceiling, in 8 U.S.C. 1152(a)(2), on the family and employment preference immigrant visas that natives of any single foreign state may receive in a fiscal year. It is measured against the family and employment preference totals combined rather than against each category separately, and dependent areas get 2 percent.
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