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Cross-chargeability (is It Applicable?)

Discussion in 'Visa quota and cutoff date issues' started by sgpat, Apr 3, 2015.

  1. sgpat

    sgpat New Member

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    Hi Ron,

    An alien, who is beneficiary of an approved I-140 in EB2 category for a visa backlogged country, is married with an unlawfully present immigrant from ROW country. The derivative would not be able to apply for AOS with the primary applicant and if traveled outside the US then the 10 years bar will apply. Can the primary applicant still invoke cross-charageability by filing I-485 and I-824 (for the derivative) together to take advantage of "follow-to-join" provision? I know your position from reading earlier posts that both the spouse should apply for visa at the same time. However, isn't that what is happening here: if the primary applicant is applying for AOS and requesting that the visa is issued to the derivative at a visa post at the same time? Also want to consider how "accompanying" or "accompanied by" i defined in 22 CFR 42.1: "Accompanying or accompanied by" means not only an alien in the physical company of a principal alien but also an alien who is issued an immigrant visa within 4 months of either the date of issuance of a visa to, or the date of adjustment of status in the United States of, the principal alien, or the date on which the principal alien personally appears and registers before a consular officer abroad to confer alternate foreign state chargeability or immigrant status upon a spouse or child. An "accompanying" relative may not precede the principal alien to the United States.

    Thanks Ron!
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Unfortunately, no. The spouse must apply for a visa at the same time, or within a few months of the principal applying for a visa.
     
  3. sgpat

    sgpat New Member

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    Let's say the primary applicant applies for AOS and files I-824 for the derivative spouse. I assume that I-824 will be preadjudicated only if I-485 is approved. In this case if the derivative spouse does not apply for visa at the visa post, will or do the agencies cancel primary applicants visa?
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The principal's AOS will be denied on the basis that a visa is not immediately available.
     
  5. sgpat

    sgpat New Member

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    hi Ron,

    Will USCIS wait to process principal's AOS application till the spouse gets visa at a U.S. consulate? Thanks!
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    No they won't.
     
  7. sgpat

    sgpat New Member

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    Then why would Principal's AOS application be denied due to unavailability of visa? The principal invoking cross-chargeability based on spouse's country of birth and requesting that spouse gets a visa issues at a US Post outside of the US (follow-to-join?).
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Because the principal would not longer be entitled to the spouse's country of chargeability.
     
  9. sgpat

    sgpat New Member

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    Why is that Ron?
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The dependent must immigrate with the principal in order to confer cross-chargeability.
     

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