The answer is maybe. There is a rule called cross-chargeability, which might help. Cross-chargeability allows the beneficiary of a preference category visa petition to be assigned to a country other than that of his or her birth for visa bulletin purposes. This rule allows cross-chargeability between one spouse to another spouse, from parents to their children, and on rare occasions based on the place of habitual residence. Note that children may derive alternative chargeability through their parents, but parents cannot derive from children.
The reason to allow children and/or spouses with different birth countries to use cross-chargeability is to avoid family separation, which immigration law seeks to avoid even though it does not always seem that way. Let us see how cross-chargeability works.
First, a principal applicant can use his country of birth for his derivative family member. This would be the case where a Husband from Poland is petitioned by his employer and married to a woman, Wife, from the Philippines. The Husband could use his country of chargeability—Poland—for his Wife who would normally be subject to very long wait times in the employment-based categories.
The same holds true for the non-petitioned spouse. For example, Husband is from Taiwan and Wife is from China (mainland). In this case, Wife’s employer petitioned for her. Because Taiwan falls under all chargeability and has more favorable dates, Husband and Wife can use the all chargeability category even though the petition was filed for Wife. Husband and Wife are required to immigrate together in this situation.
Another use for cross-chargeability is with the Diversity Lottery (“DV”). As you know, only nationals of certain countries are allowed to enter the Diversity Lottery. If Husband and Wife are from different countries and only one of the two countries is eligible to apply for the Diversity Lottery, both spouses can apply for the Diversity Lottery using the chargeability country of the qualifying spouse’s country. For example, if Husband is from Colombia (not eligible for the 2020 DV) and Wife is from Venezuela (eligible for 2020 DV), both can apply for the 2020 DV using Venezuela as the country of chargeability as long as they are legally married at the time of entry.
In some instances where spouses are from different nationalities and different regions of the world, using one spouse’s country of chargeability over the other might help the couple get selected for the DV because of the algorithms used to select applicants.
For cross-chargeability generally, note that if the familial relationship (marriage or birth of a child) happens before the principal applicant receives permanent resident status, the spouse and child can follow to join him or her at a later date. However, if the familial relationship (marriage or birth of a child) happens after the principal applicant receives permanent resident status, the spouse and child must accompany (within six months) the principal applicant.
Also note that a legal permanent resident who receive cross-chargeability is allowed to keep the cross-chargeability indefinitely, meaning that the cross-chargeability can be used for future spouses and children.
Contact a DuPage County Immigration Attorney
Immigrating to the United States can be a confusing process. In some cases, cross-chargeability may help your spouse's status on the Visa Bulletin. If you or your loved one has questions or concerns about the legal steps, you need to speak to an experienced immigration attorney. Ana M. Mencini & Associates, P.C. have experience handling many diverse immigration cases to positive outcomes. We can assist you in completing all of the necessary paperwork. Call our knowledgeable Itasca visa lawyers at 630-875-1700 to schedule your consultation.