August 25, 2015
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 more and more people are finding love outside of their nationality and culture. Wonderfully, the immigration laws contain provisions that may benefit married couples who have been 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 born in the Philippines, mainland China, Mexico and India. In general, for purposes of the visa waiting lists, an individual is charged to the country in which they are born. This typically applies even to children who are born outside of their parents’ native country, which is increasingly more common given the large number of overseas workers.
An important exception to this general rule applies to married couples who are born in different countries, with hopefully one of them from a country that is not experiencing a severe backlog. The exception states that a person may use their spouse’s country of birth for purposes of determining which country’s waiting list they will be charged. It is available for either relative petitions or employment-based petitions. However, the law does require that the spouses apply for their green cards at the same time.
As an example, a U.S. citizen mother files a relative petition on behalf of her Philippine born unmarried daughter over age 21 on September 1, 2015. Under the visa bulletin, the cut-off priority date for this category (F1) at that time is October 22, 2000. The waiting period is therefore be about 15 years.
Now, if the unmarried daughter marries a Philippine born individual, the daughter continues to be eligible for a green card, but would be reclassified to the category for married children (F3). For this category under the Philippines, the cut-off priority date is September 15, 1993, which adds about 7 years to the waiting period. So, unfortunately, the marriage between two Philippine born individuals makes the wait even longer.
However, if the Filipina marries someone born in a country other than the Philippines, the immigration laws allow use of the waiting list for the spouse’s country of birth. In our example, if she marries someone born in Dubai, the cut-off priority date can be charged to the waiting list for Dubai, which is May 8, 2004. The waiting period would therefore be about 11 years, which is 4 years faster than if she remained single and 11 years faster than if she were to marry a Philippine born individual.
With respect to the timing of the marriage, careful assessment must be made beforehand to ensure that there are no negative consequences to getting married and to determine the potential benefits. If not properly assessed, a poorly-timed marriage may in fact destroy a petition. On the other hand, a well-timed marriage may quickly advance an individual’s eligibility to obtain a green card.
The cross-chargeability provisions of the immigration laws are most beneficial to individuals who are born in countries experiencing severe backlogs. In today’s age of increasing intercultural marriages—resulting from an increase in travel, working abroad, and the internet—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 with an attorney at Aquino & Loew, Immigration Law Specialists. Please also connect with us on Facebook and Twitter. Aquino & Loew also handles family law and criminal matters. Providing Personalized Service Nationwide & Abroad Since 1996.