Cross-chargeability is a provision in U.S. immigration law that allows a green card applicant to use their spouse’s or parent’s country of birth for visa processing instead of their own. This is particularly beneficial for applicants from countries with long visa backlogs who are married to someone from a country with shorter wait times.

Why Does It Matter?

Visa availability is determined by a numerical limit per country, meaning applicants from countries with high immigration demand—such as India, China, Mexico, and the Philippines—often experience lengthy backlogs. Cross-chargeability provides a legal loophole that allows eligible applicants to bypass these delays by using a different country’s visa quota. This can be a game-changer for those in employment-based (EB-2, EB-3) or family-sponsored categories, as it helps them avoid years of unnecessary waiting.

Who Should Read This?

This article is designed for:

1. Employment-based green card applicants (such as those in EB-2 and EB-3 categories) facing extended visa wait times.
2.  Family-sponsored green card applicants seeking a way to accelerate their immigration process.
3.  Immigration attorneys and visa applicants looking for expert insights into how USCIS cross chargeability works and how to apply for it correctly.

If you or your spouse are from different countries and wondering how cross-chargeability can impact your green card timeline, this guide will break it down step by step. Let’s dive in!

1. What is Cross-Chargeability?

Definition and Explanation

In U.S. immigration law, cross-chargeability is a provision that allows certain green card applicants to use their spouse’s or parent’s country of birth instead of their own when applying for a visa. This rule is particularly beneficial for applicants from countries with long visa backlogs—such as India, China, Mexico, and the Philippines—where demand for green cards exceeds the annual quota allocated to each country.

How It Works

Every fiscal year, the U.S. government imposes per-country limits on the number of green cards issued under family-sponsored and employment-based categories. When a country exceeds this limit, applicants born there must wait until more visas become available, often causing years of delays.

However, cross-chargeability allows an applicant to “charge” their green card application to a different country—typically their spouse’s or parent’s country—if that country has a shorter waiting time. This strategic move can help applicants avoid backlogs and significantly reduce their wait time for permanent residency.

Why This Provision Exists in U.S. Immigration Law

The primary goal of cross-chargeability is to preserve family unity and ensure fairness in visa distribution. The U.S. government recognizes that many families have mixed nationalities, and separating spouses or children due to visa backlogs would be unfair.

Thus, cross-chargeability was introduced to prevent family separations and allow spouses and children to immigrate together, even if they were born in different countries with varying visa backlogs.

Examples of How Cross-Chargeability Works

Example 1: Employment-Based Green Card (EB-2/EB-3)

Raj, an Indian software engineer working in the U.S. under an H-1B visa, applied for an employment-based green card (EB-2). However, due to high demand from India, the green card backlog for EB-2 applicants from India is 10+ years.

Raj is married to Lisa, who was born in Canada—a country with significantly shorter visa wait times. Because of cross-chargeability, Raj can use Lisa’s country of birth (Canada) instead of India, allowing him to skip ahead in the queue and get his green card years faster.

Example 2: Family-Based Green Card

Ana, born in Mexico, is married to David, who was born in Italy. Since the family-sponsored visa backlog for Mexico is extremely long, Ana would normally have to wait several years for her green card.

But because of cross chargeability, Ana can apply under David’s country of birth (Italy), where the backlog is much shorter. This dramatically speeds up her green card process and ensures they can immigrate together without unnecessary delays.

2. Who is Eligible for Cross-Chargeability?

Cross chargeability is an incredibly useful provision in U.S. immigration law, but not everyone qualifies for it. To take advantage of this rule, applicants must meet specific eligibility criteria. Below, we’ll break down who can use cross chargeability, the restrictions in place, and some common misconceptions people have about this provision.

Eligibility Criteria for Cross Chargeability

1. Spouses: Principal Applicants vs. Derivative Spouses

In most cases, cross chargeability is applied between spouses when one spouse is applying for a green card and the other is from a country with a shorter visa wait time.

Principal Applicants (Main Green Card Applicant)

• If the principal applicant is from a country with a long visa backlog (e.g., India, China, Mexico), they can use their spouse’s country of birth if it has better visa availability.
• This can significantly reduce waiting times for employment-based (EB-2, EB-3, etc.) and family-sponsored green cards.

Derivative Spouses (Spouse of Principal Applicant)

• The spouse of the principal applicant can also benefit from cross chargeability because derivative beneficiaries (spouses and children) are processed together under the principal applicant’s category.

Example:

• Amit, born in India, applies for an employment-based EB-2 green card, but the backlog for Indian applicants is 10+ years.
• His wife, Sophie, was born in France, where the backlog is much shorter.
• Amit can use France’s visa category instead of India’s, which speeds up his green card process.

2. Who Can Cross-Charge to a Parent’s Country?

Children can cross-charge their green card applications to either parent’s country of birth, but parents cannot use their child’s country—this is one of the biggest limitations of the rule.

Children Can Use a Parent’s Country

• A child’s country of chargeability can be switched to either parent’s country to speed up the process.
• This is particularly helpful when a child is born in a backlogged country, but one parent is from a country with a shorter visa wait time.

Example:

• Luis was born in Mexico, where visa backlogs for family-sponsored green cards are extremely long.
• His mother, Carmen, was born in Argentina, where visa wait times are shorter.
• Luis can use Argentina’s country of chargeability to bypass Mexico’s backlog and receive his green card faster.

Parents Cannot Use a Child’s Country

• If a child is born in a country with a shorter visa wait time, parents cannot claim that country for their green card process.
• Example: If a child was born in Canada, but their parents were born in India, the parents must still use India’s chargeability (unless cross-charging through a spouse).

3. Restrictions: When Cross Chargeability is NOT Allowed

Despite its benefits, cross chargeability has strict limitations, and not everyone qualifies:

1. Parents CANNOT use their child’s country for cross chargeability.
2. Siblings CANNOT use each other’s country of birth for cross chargeability.
3. Unmarried partners CANNOT cross-charge—only legally married spouses qualify.
4. This rule only applies to permanent residency (green cards), NOT temporary visas like H-1B or F-1.

4. Common Misconceptions About Cross Chargeability

1. Misconception #1: “Cross chargeability means I can choose ANY country with a faster green card process.”Wrong. You can only use your spouse’s or parent’s country of birth—NOT just any country.

    

2. Misconception #2: “Cross chargeability works for temporary visas like H-1B or F-1.”Wrong. It only applies to immigrant visas (green cards).
3. Misconception #3: “A parent can use their child’s country to avoid backlogs.”Wrong. Parents cannot cross-charge to a child’s country.
4. Misconception #4: “If my spouse is a U.S. citizen, I can use the U.S. for cross chargeability.”Wrong. Cross chargeability only works for foreign-born applicants, so a U.S. citizen’s country does not count.

5. How to Apply for Cross Chargeability

Step 1: Determine Eligibility

Before applying, confirm that you meet the criteria for cross chargeability:

• You are applying for a green card (employment-based or family-sponsored).
• You are married to a spouse or have a parent born in a country with a shorter visa wait time.
• You are not attempting to cross-charge to a child’s country, as this is not allowed.
• You have the required supporting documents (birth certificate, marriage certificate, etc.).

Step 2: Indicate Cross Chargeability on Your Application

Cross-chargeability is not automatically applied. It must be explicitly requested when submitting a green card application.

For Applicants Adjusting Status in the U.S. (Form I-485)

If you are applying for a green card from within the United States through Adjustment of Status, you must include your cross-chargeability request in Form I-485 (Application to Register Permanent Residence or Adjust Status).

• Where to Include It:
  • In Part 2 (Application Type or Filing Category) of Form I-485, specify your cross-chargeability request.
  • Attach a written explanation stating the country you are requesting to be charged to.
  • Provide supporting documentation (see Step 3).

For Applicants Applying from Outside the U.S. (Form DS-260)

If you are applying for a green card through Consular Processing, you must submit Form DS-260 (Immigrant Visa Application) and notify the consular officer of your cross-chargeability request during your visa interview.

• Where to Include It:
  • Provide a written request when submitting Form DS-260.
  • Discuss cross-chargeability with the U.S. consular officer at your visa interview.

Step 3: Submit Supporting Documents

To process your cross-chargeability request, USCIS and the U.S. Department of State require documentation proving eligibility. The following must be included:

• Birth Certificate – To verify your country of birth.
• Spouse’s or Parent’s Birth Certificate – To establish eligibility for cross-chargeability.
• Marriage Certificate (if cross-charging through a spouse) – To prove a valid marital relationship.
• Proof of Parent-Child Relationship (if cross-charging to a parent’s country).

If any of these documents are in a language other than English, they must be submitted with a certified translation.

Step 4: USCIS or Consular Officer Review

Once your application is submitted, USCIS (for Adjustment of Status cases) or the U.S. Department of State (for Consular Processing cases) will review your cross-chargeability request.

• USCIS officers consider cross-chargeability requests during the green card adjudication process.
• If the request is unclear or lacks supporting documentation, it may be delayed or denied.
• If approved, your application will be processed under the country you charged to, which may significantly reduce your wait time.

Step 5: What to Do If Cross-Chargeability Is Denied

If your cross-chargeability request is denied, consider the following options:

• If USCIS Did Not Recognize the Request: Contact USCIS Customer Service to request a review or file a motion to reopen the case (Form I-290B).
• If Documentation Was Incomplete or Incorrect: Submit a Request for Evidence (RFE) response with the necessary documents.
• If the Visa Bulletin Changed Before Approval: Visa retrogression may affect processing. If the priority date becomes unavailable, you may need to wait until dates move forward again.

Make sure to carefully review each step outlined above, or consult with an experienced immigration attorney to ensure you meet all eligibility requirements. This guide is for informational and educational purposes only and should not be considered legal advice.

Next, we will cover Cross-Chargeability in USCIS Policy to understand how USCIS processes these requests and what their official guidelines say.

6. Cross-Chargeability in USCIS Policy

What USCIS Says About Cross-Chargeability

To answer this question, we thoroughly examined the USCIS Policy Manual, the key resource for adjudicating cross-chargeability requests. Here are some important insights from Volume 7, Part A, Chapter 6:

• Eligibility Requirements – Cross-chargeability is only available to spouses and children of applicants and cannot be applied between siblings, parents, or extended family members.
• Application of Cross-Chargeability – The policy explicitly states that a principal applicant may be charged to the country of birth of their spouse or parent if it results in a more favorable visa availability.
• Limitations – Parents cannot be charged to a child’s country of birth, and cross-chargeability does not apply to non-immigrant visa categories (such as H-1B, F-1, or O-1 visas).

Additional Considerations for Adjudication

While the cross-chargeability process is straightforward in most cases, USCIS officers evaluate several factors before granting approval.

• Marriage Duration and Legitimacy: If applying through a spouse, USCIS may scrutinize the marriage to ensure it is genuine and not solely for immigration benefits.
• Visa Availability at the Time of Filing: Even if an applicant qualifies, cross-chargeability only helps if visa numbers are available in the country being used.
• Retrogression Risks: If the Visa Bulletin changes before final adjudication, it may affect processing timelines.

Frequently Asked Questions (FAQ)

Can I use cross-chargeability after my I-140 is approved?

Yes, cross-chargeability can still be applied after an I-140 approval but must be explicitly requested before the final adjustment of status (Form I-485) or consular processing (DS-260) is completed. USCIS will consider the request during the green card adjudication process.

Can USCIS deny a cross-chargeability request?

Yes, USCIS may deny a cross-chargeability request if:

• The request was not explicitly stated in the application.
  Supporting documentation (e.g., marriage or birth certificates) is missing or insufficient.
  The applicant does not meet eligibility criteria (e.g., attempting to cross-charge to a child’s country, which is not allowed).
  USCIS determines that the marriage was entered solely for immigration benefits.

What happens if I forget to request cross-chargeability?

If cross-chargeability is not requested at the time of filing, USCIS will not apply it automatically, even if the applicant qualifies. In this case:

• If the application is still pending, the applicant may submit a Request for Evidence (RFE) to include the request.
  If the application is denied or processed under the original country of birth, the applicant may have to file a motion to reopen or reconsider (Form I-290B) or, in some cases, reapply with the correct chargeability information.

Does cross-chargeability apply to all visa categories?

No. Cross-chargeability only applies to immigrant visas (green cards) in employment-based and family-sponsored categories. It does not apply to non-immigrant visas such as:

• H-1B (work visa)
• F-1 (student visa)
• O-1 (extraordinary ability visa)
• L-1 (intracompany transfer visa)

Which employment-based green card is the fastest?

The EB-1 category (for individuals with extraordinary ability, outstanding researchers, or multinational executives) typically has the shortest processing time and often avoids visa backlogs. However, for those in EB-2 and EB-3 categories, cross-chargeability can significantly speed up processing times if their country of birth has a backlog.

Conclusion

Cross-chargeability is a valuable yet often overlooked provision in U.S. immigration law that can significantly reduce green card wait times for applicants born in countries with high visa demand. By allowing eligible applicants to use a spouse’s or parent’s country of birth for visa processing, this rule helps bypass backlogs and ensures that families can navigate the immigration process more efficiently. However, because USCIS does not apply cross-chargeability automatically, it is essential for applicants to explicitly request it, provide proper documentation, and follow the correct filing procedures to avoid unnecessary delays or denials.

For those facing extended wait times due to country-specific visa caps, cross-chargeability can be a strategic tool to expedite permanent residency. Understanding the eligibility requirements, USCIS policy guidelines, and proper filing methods can make all the difference in securing a green card sooner. If you or your spouse qualify for cross-chargeability, are you taking full advantage of this opportunity to fast-track your immigration process?