Can a married couple from two different nations use either nation as their nation of chargeability?
Yes, if the primary petitioner and their spouse are from two different countries, the petitioner is permitted to apply for an EB-5 visa from their own home country or cross-charge to the home country of their spouse.
Generally, the specific country of chargeability a prospective EB-5 investor uses will have minimal influence on their EB-5 application. The exception would be EB-5 investors from Mainland China, who face significant backlog in petition processing as well as limited visa availability.
Normally, a prospective EB5 investor’s country of chargeability would be determined by their country of birth. The concept of cross-chargeability provides an exception to this formula by allowing the investor to charge their EB-5 visa application to their spouse’s country of birth instead.
Cross-chargeability is most commonly used by those who wish to avoid the effects of visa retrogression, such as the backlog facing Chinese EB-5 investors.
EB-5 Retrogression in China
Historically, Chinese EB-5 investors have made up the greatest number of participants in the EB-5 program since its inception. Consequently, as of May 2015, United States Citizenship and Immigration Services (USCIS) has been experiencing a significant backlog in processing petitions filed by Chinese investors.
Investors from all other countries are permitted to apply for an EB-5 visa and obtain a conditional U.S. green card as soon as their I-526 petition is approved. This is not the case for Chinese investors, who are subject to a final action date. In order to apply for an EB-5 visa, Chinese EB5 investors must wait for their country’s final action date to line up with their I-526 petition priority date. These dates can all be viewed and accessed via the EB-5 Visa Bulletin.
On top of all that, the processing time for EB-5 petitions is substantially longer for Chinese investors. Therefore, if a prospective EB-5 investor from China has a spouse with a different country of chargeability, it would be advisable for them to utilize cross-chargeability to avoid the effects of retrogression.