Expediting Permanent Residency Through A Cross-Cultural Relationship
April 24, 2008
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.
Take as an example a husband who is born in Japan and his wife who is born in the Philippines. Wife’s mother, who is a United States citizen, files a relative petition for her on May 1, 2008. The priority date assigned to the petition is therefore May 1, 2008. Under the visa bulletin, the current priority date for that category as of May 1, 2008, for the Philippines is April 1, 1991. The waiting period would therefore be approximately 17 years. The current priority date for Japan, the husband’s country of birth, is June 8, 2000. The waiting period would therefore only be approximately 8 years.
Another example is a husband who is born in the Philippines and his wife who is born in Australia. Husband’s sister, who is a United States citizen, filed a relative petition for him on January 1, 1990. As of May 1, 2008, the current priority date for a sibling relative petition using the Philippines as the country of chargeability is March 8, 1986. The waiting period under the Philippines would therefore still be another 4 years or so. Under the wife’s country of chargeability, namely Australia, the petition would have been current back on April 1, 2002, so both husband and wife could have obtained their permanent residency back at that time.
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 the respect to the marriage, the marriage may take place either before the filing of the 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.
Aquino & Aquino, A Professional Law Corporation, also handles personal injury, family law, criminal defense, employment discrimination, unlawful termination, wills, and living trusts.
© 2008 Aquino & Aquino, APLC. All rights reserved.
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