The United States was founded under the ideal of being a melting pot, where different people from different places around the world would blend as one harmonious community. Although it is debatable whether this ideal has been achieved or not, it is clear that there are more and more people finding love outside of their nationality and culture. Wonderfully, the immigration laws contain provisions that take into consideration married individuals that are born in different countries.
These provisions could be very helpful to individuals from countries that are experiencing severe backlogs and waiting periods, such as those from the Philippines, China, Mexico and India. In essence, the general law is that a person’s country of chargeability for purposes of the waiting lists and visa quotas is their country of birth. The exception to this general rule, however, is that a person may use their spouse’s country of birth for purposes of determining the country of chargeability with respect to the visa quotas.
As an example, a United States citizen mother on February 1, 2010, files a relative petition on behalf of her Philippines born unmarried daughter over age 21. Under the visa bulletin, the cut-off priority date starting February 1, 2010, for this category is January 1, 1994. The waiting period would therefore be approximately 16 years.
Now, if the unmarried daughter marries a Filipino man, the daughter continues to be eligible for permanent residency, but would be reclassified to the category for married children. For this category under the Philippines, the cut-off priority date starting February 1, 2010, is January 1, 1992. The waiting period would therefore be about 18 years, so the marriage makes the wait even longer.
However, if the unmarried Filipina marries someone born in a country other than the Philippines, mainland China, India, or Mexico, the immigration laws allow use of the other country’s waiting list. The cut-off priority date for all of the countries starting February 1 is May 22, 2001. The waiting period would therefore only be approximately 9 years.
To avail of the ability to use one’s spouse’s country of birth as the country of chargeability, the law does require that husband and wife simultaneously apply for the immigrant visas.
With respect to the marriage, the marriage may take place either before the filing of the relative petition or anytime thereafter. Should the marriage take place after the filing of the petition, a reassessment should be made to determine the consequences of the new spouse’s country of birth as it may actually result in the petition immediately becoming current and available, and if not, possibly a significant reduction of the waiting time.
Additionally, the ability to use either of the spouse’s country of birth for purposes of chargeability applies to both relative petitions and employment-based petitions.
The cross-chargeability provisions of the immigration laws are most beneficial to those from countries experiencing severe backlogs. In today’s generation of increasing intercultural marriages—resulting from an increase in travel, working abroad and the internet age—individuals must be knowledgeable about these provisions as they may be able to benefit and reduce their waiting times significantly.
For further information, please schedule an appointment at Aquino & Aquino, A Professional Law Corporation, 625 Fair Oaks Avenue, Suite 101, South Pasadena, CA, 91030; (626) 799-3089; info@aquinolaw.net.