This Obscure Rule Helps EB-5 Investors Avoid The Effects of Retrogression

In light of looming EB-5 retrogression for Chinese born EB-5 Investment Visa applicants, you might be wondering if there is a way that you can avoid being affected by this event. Among many recommendations that the Law Offices of Vaughan de Kirby offers, one way you might consider is using the concept of “cross-chargeability.” Cross-chargeability is a rule that has been garnering attention lately—here are the facts.

What is Cross-Chargeability?

Cross-chargeability is the concept that a foreign national can be “charged” to his or her spouse’s birth country, if doing so would avoid being affected by the visa backlog. This concept was originally designed to prevent the separation of husband and wife, and children and their parents.

Under regular circumstances, visas are usually charged to the individual’s country of birth, and not their country of citizenship. For example, a citizen of Taiwan who was born in Mainland China will be “chargeable” to People’s Republic of China.

Cross-chargeability is an exception to this general rule, allowing individuals to charge their visa application to the spouse’s country of birth. This effectively allows visa applicants to avoid the effects of visa retrogression. It is important to note that the rule of cross-chargeability cannot be used to charge the parent with the child’s country of birth.

FAM and INA

Rule of cross-chargeability is only applied in two phases: 1) at the time of consular processing or 2) during adjustment of status. The Foreign Affairs Manual (FAM) governs cross-chargeability during consular processing, and the Immigration and Nationality Act (INA) governs cross-chargeability during adjustment of status. 

FAM

FAM states that during consular processing, either the principal applicant or the applicant’s spouse can be charged to each other’s country of birth. Take the following case for example:

-The principle applicant was born in Mainland China
-EB-5 Priority Date not current for mainland China
-Applicant’s Spouse (Derivative Applicant) was born in Taiwan

In this case, the principle applicant (who is born in China) may be charged to the spouse’s country of chargeability (Taiwan).  Thus, the couple is no longer subject to the effects of Chinese EB-5 retrogression. The key point here is that the EB-5 applicant born in China may be charged to Taiwan, even if he or she is the principle applicant.

INA

Rule of cross-chargeability in the Immigration and Nationality Act (INA) applies to the adjustment of status phase, and is slightly less expansive than FAM. INA states that an accompanying spouse and children may be charged to the principal applicant’s country of birth. Under this rule, cross-chargeability only works to benefit the derivative applicant, and not the principal applicant.

However, often times in adjustment of status, USCIS officers will adopt the more expansive rule of cross-chargeability in Foreign Affairs Manual (FAM) during the adjustment of status phase. In certain cases, they may allow the principal applicant to be charged to the spouse’s country of birth. This ensures that the provision’s original intention of keeping the family members from being separated is upheld.   

Do you think you might be eligible for cross-chargeability? Don’t hesitate to contact the Law Offices of Vaughan de Kirby now at 415-221-2345. Our experienced EB-5 immigration attorneys can help you immigrate the United States in the most efficient way possible. 

Vaughan de Kirby
California Immigration Attorney

EB-5 Regional Center Program Ends 12/08/17

Congress has extended the current Regional Center program to December 8th, 2017, at which time it will sunset unless extended. We anticipate future legislation that will call for an increased investment amount and more stringent requirements. For this reason, we recommend to our clients that they take action under the current law if at all possible.

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