Strategy of “Using Spouse’s Country of Birth” to Mitigate Visa Backlogs

In the U.S. immigration system, visa availability and priority dates are determined based on the applicant’s country of birth, not their current nationality. This rule applies to all numerically limited immigrant visa categories, including both family-based and employment-based immigrant visas. The primary purpose of this practice is to maintain diversity among visa applicants and to prevent applicants from certain countries with high demand from occupying too many visa numbers.

In specific circumstances, if the applicant’s spouse was born in a different country, the applicant may choose to use the spouse’s country of birth for visa chargeability. This is known as “cross-chargeability” or “using the spouse’s country of birth” strategy to mitigate visa backlogs. The legal basis for this option originates from Section 202(b) of the Immigration and Nationality Act (INA). This provision states that if an immigrant visa applicant’s spouse was born in a country different from the applicant’s, the applicant may opt to be charged under the spouse’s country of birth for visa processing purposes, which may help them avoid long backlogs associated with their own country of birth.

Furthermore, if an applicant was born in a particular country while their parents were temporarily present there (e.g., on a tourist or student visa), the applicant may be eligible to use the country of birth of either parent for chargeability purposes.

More specifically, this strategy is often used when high numbers of individuals from certain countries are immigrating to the United States. In countries such as India, China, Mexico, and the Philippines, priority date backlogs can be especially long, and using a spouse’s country of birth may significantly reduce the wait time.

Attached: INA §202(b) – Rules for Chargeability

Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. For the purposes of this chapter the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that

(1) an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year;

(2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year;

(3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and

(4) an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien's birth may be charged to the foreign state of either parent.

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