A foreign national’s country of origin — also known as country of chargeability — is determined strictly by one’s place of birth, not the country of where they are currently residing or a citizen. Even abandoning one’s birth citizenship does not impact chargeability. There are, however, exceptions to this rule, which we will cover shortly.
There is a cap to the number of foreign nationals who can be granted lawful permanent resident status each year. This is regulated by limiting the visa numbers that are issued. There are typically 10,000 EB-5 investment visas made available each year, with each country being allotted 7% of this total. Thus, high demand countries often become oversubscribed with more applicants than available visa numbers. This results in backlogs that greatly increase EB5 investment visa wait times. Foreign nationals can use the monthly visa bulletin to determine their country’s visa availability. It is also possible to bypass typical wait times entirely through reserved EB5 visas.
In certain situations, it is possible for a visa applicant to be charged to their spouse’s country of chargeability instead. This is known as cross chargeability. In practice, cross chargeability is used where the visa quota is backlogged for one spouse’s country of chargeability but is current for the other spouse’s country. The principal applicant may cross-charge to their spouse’s country, and the spouse may cross-charge to the principal applicant’s country. The cross-chargeability rule also applies to children of EB-5 visa applicants. Children can cross-charge to either parent’s country as necessary. However, parents may not cross-charge to their child’s country.
Another exception to the standard chargeability rules is when a child is born in a country where neither parent was born or has a residence at the time of the child’s birth. In these cases, the child may claim the country of chargeability of either parent.
To benefit from cross-chargeability, both applicants must be eligible to adjust status. A derivative using the principal’s country of chargeability may adjust status with the principal or at any time afterwards. When a principal applicant uses their derivative spouse’s country of chargeability, both applicants are considered principal applicants: one for the purpose of conferring immigrant status and the other for the purpose of conferring a different chargeability. As such, both applicants should apply to adjust status at the same time.