Cross chargeability

[federernadal]

You will only have your interview a year later. Don't worry about it. And no, conditional permanent residency doesn't apply to derivatives INA216(h)(1)(B)

The I485 process takes a whole year? I thought for Nebraska Service Center, it would take about 3-5 months (my spouse priority date is Current)? So lets say she comes in on July 2018 and we apply for I485 the very next day (is that legal or should I wait 60 days to apply I485), by when do you think I will get my GC in the mail?

Happy new year and thank you for your help!

[inadmissible]

Many people are waiting a year for an interview. You should plan as such

[ewilliams]

The I485 process takes a whole year? I thought for Nebraska Service Center, it would take about 3-5 months (my spouse priority date is Current)? So lets say she comes in on July 2018 and we apply for I485 the very next day (is that legal or should I wait 60 days to apply I485), by when do you think I will get my GC in the mail?

Happy new year and thank you for your help!

I can already tell youre inpatient.. you are gonna be very disappointed during this entire process if you wont have some patience.
1year for a GC is pretty "standard" , 3-5 months is wishful thinking.
there are people who are waiting for almost 2years now.

[federernadal]

Many people are waiting a year for an interview. You should plan as such

Gotcha - does the 30/60 day rule apply to us (Me on F1 for 4 years and now H1 for 4 years, she H4 for the first time)? Would you recommend waiting a couple months after she gets here (shes never been to the US) before applying for i485?

[scientist2016]

Gotcha - does the 30/60 day rule apply to us (Me on F1 for 4 years and now H1 for 4 years, she H4 for the first time)? Would you recommend waiting a couple months after she gets here (shes never been to the US) before applying for i485?

There is no such thing called a 60 day rule. The 60 day thing is only for DOS, while I485s are adjudicated by USCIS, so not relevant here. Even otherwise, H4 is a dual intent visa viz., you can have immigration intent as opposed to say F1 or B1/B2 which are strictly non-immigrant visas. So, you can file I485, as soon as your spouse walks out of the airport immigration section and officially steps into the US.

[inadmissible]

Gotcha - does the 30/60 day rule apply to us (Me on F1 for 4 years and now H1 for 4 years, she H4 for the first time)? Would you recommend waiting a couple months after she gets here (shes never been to the US) before applying for i485?

Whether or not there really is a 30/60/90 day rule, and whether or not USCIS has always had the right to exercise reasonable judgement when deciding if an adjustment applicant lied about their immigrant intent at the port of entry when entering as a student or tourist, it is a moot point in this case: H & L visa holders are explicitly allowed to enter the United States with immigrant intent

[federernadal]

Hi,

I was reading this link and it mentions you can apply for cross chargeability through “habitual residence” (it does say this is allowed “rarely”).

Now, I am not married yet but I did grow up in a country other than India (immigrated to Thailand at the age of 2 and was there throughout my schooling). In fact, my first US visa (F1) was applied at the Bangkok embassy as well at the age of 17. Then, my H1 was also stamped at Bangkok. I never took Thai citizenship though.

I have a feeling I would be able to make a strong case for the “habitual residence”, but cant find any more reading material on this. Do you guys have any such experiences or any reading material on this?

[inadmissible]

"Habitual residence" does not appear in either the statutes, regulations, or the DoS foreign affairs manual. The portion of the USCIS policy manual covering this topic remains redacted.

https://www.law.cornell.edu/cfr/text/22/42.12

https://fam.state.gov/fam/09FAM/09FAM050302.html#M503_2_4

What the statute does say is that a stateless person born in the United States (talk about a rare situation!) is chargeable to their country of last residence

[newacct]

Hi,

I was reading this link and it mentions you can apply for cross chargeability through “habitual residence” (it does say this is allowed “rarely”).

Now, I am not married yet but I did grow up in a country other than India (immigrated to Thailand at the age of 2 and was there throughout my schooling). In fact, my first US visa (F1) was applied at the Bangkok embassy as well at the age of 17. Then, my H1 was also stamped at Bangkok. I never took Thai citizenship though.

I have a feeling I would be able to make a strong case for the “habitual residence”, but cant find any more reading material on this. Do you guys have any such experiences or any reading material on this?

Never heard of such a thing. According to 9 FAM 503.2.4, the only exceptions to being chargeable to the country of birth are 1) you can use the spouse or parent's changeability if immigrating together (cross-chargeability), 2) aliens born in the US are chargeable to their country of nationality, and 3) aliens born in a country where neither parent was born and neither had a residence, can be chargeable to the parent's country.

[federernadal]

Alright, thanks.

By the way, during the GC interview will me and my wife's relationship be scrutinized and tested to the same degree as how it is for US citizens marrying foreign nationals? Because essentially, the marriage is what makes the I485 work in cross chargeability cases!

[inadmissible]

By the way, during the GC interview will me and my wife's relationship be scrutinized and tested to the same degree as how it is for US citizens marrying foreign nationals? Because essentially, the marriage is what makes the I485 work in cross chargeability cases!

No. Funny, right?

[federernadal]

No. Funny, right?

Are you serious or joking (feels like I sensed some sarcasm there lol)?

[inadmissible]

I was serious. For derivative spouses, marriage is not scrutinized the degree as the marriages of spouses of US citizens. The statutes & regulations (eg 2 year conditional rule) and the FAM & policy manual reflect a view that marriages between two non-citizens pose little risk of fraud. This is despite the fact - as you have observed - that cross-chargeability is a very valuable immigration benefit, giving nationals from countries with long backlogs a significant incentive to marry someone from a different country.

For example, EB-2 & EB-3 worker from India would normally wait many years gain permanent residency, but could skip the 9 or 11 year queue if they married a Sri Lankan, Malaysian, or Fijian person. (I'm just randomly naming countries with large populations of ethnically Indian people). Similarly, an EB-2/EB-3 worker or EB-5 investor from China would skip the 2 or 3 year queue if they married someone from Taiwan or Malaysia. F3 and F4 family-based immigrants from Mexico & the Philippines can shave 10 years off their wait by marrying anyone who isn't Mexican or Filipino.

I don't know if this actually happens in practice - DHS does not publish such granular data (international marriages) at https://www.dhs.gov/immigration-stat.../yearbook/2016

Anecdotally, I hear of it rarely happening. People get married for a variety of reasons, and immigration benefits rarely factor into their calculus. Could someone potentially enter into a sham marriage in order to skip the queue? Perhaps, but I'm not worried about it. Congress isn't worried about it. DoS and USCIS are not worried about it. Why aren't they worried about it? Perhaps they believe that nationals of China, India, Philippines, and Mexico take marriage very seriously. I don't know, I'm just speculating.

My point really was that derivative spouses are assessed for admissibility and security issues, then they're rubberstamped in