Cross-chargeability: Use your spouse’s faster priority date

IMMIGRATION CORNER By Michael J. Gurfinkel Dear Atty. Gurfinkel:

I was petitioned by my US citizen parent in 1997 in the F-3 category (married child of US citizen). Although I was born in the Philippines, my spouse was not. I know that the waiting time for visas will take many, many years. My parent is getting old, and I am worried that something might happen to him before my family and I are able to get our visas.

Is there anything that we can do to speed up or expedite the process, so that we can get our visas sooner?

Very truly yours,

A.N.

Dear A.N.:

There is a little-known provision in the law called "cross-chargeability", which allows a person to avail of (or use) the priority date of their spouse’s country of birth, if the spouse was born in a different country, and if the priority dates for the spouse’s country are faster. Under "cross-chargeability", a spouse who is being petitioned (principal beneficiary), may use the faster priority date of their accompanying spouse’s country of birth (derivative beneficiary).

For example, right now, visas are available for married children from the Philippines who were petitioned in about 1991. However, the priority date for married children for people born in most other countries is 1998. So, a married child from the Philippines will have to wait much longer for his visa than a married child from other countries. However, let us say your spouse was born in Vietnam, China, Germany, Sweden, etc. Although you are the one being petitioned, you can use the priority date for your spouse’s country. So, if your parent petitioned you in 1997, you would be eligible to be processed for your visa now, by using the F-3 priority date of your spouse’s country of birth.

Cross-chargeability would even apply to petitions by brothers and sisters (category F-4). Right now, the priority date for brothers and sisters from the Philippines is approximately 1983. However, for most other countries (except India and Mexico), the priority date is approximately 1994. So, if a Filipino was petitioned by his or her brother or sister, but is married to a non-Filipino, then under the doctrine of cross-chargeability, the Filipino could use the priority date of their spouse’s country of birth, and if their brother or sister’s petition was filed before 1994, then the whole family would be eligible for visas right now!

In fact, just recently, my office was able to obtain green cards for a Filipina who was petitioned by her US citizen parent, but was married to a German. At the beginning of the interview, even the Officer seemed confused and unaware of cross-chargeability. But after we explained and pointed out the applicable law, the case was approved on the spot (using Germany’s priority date), even though the priority date for the Philippines was many years away.

Accordingly, if you are under petition, but are married to a non-Filipino, you may want to seek the advice of a reputable attorney, who can analyze your situation, and could determine whether you could avail of cross-chargeability, and obtain your visa years ahead of the Philippine priority dates.

Please note that cross-chargeability applies only if your spouse was born in another country. If your spouse was also born in the Philippines, then cross-chargeability would not apply.

Michael J. Gurfinkel has been an attorney for over 25 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California.

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