Britsimon
Super Moderator
Reeko - the 9 FAMM notes (official interpretation of the law) are here (point 2). The actual law is INA 202(b)4 - shown after that.
9 FAM 42.33 N4.2 Chargeability
(CT:VISA-1555; 09-30-2010)
As stated in the regulatory definition, the normal rules of chargeability apply to INA 203(c) (8 U.S.C. 1153(c)) immigrants. Many applicants may seek beneficial treatment from the rules of cross chargeability, as in the following examples:
(1) A spouse or child born in a country, which is not among those for which DV visas are available, may use the principal registrant’s chargeability when they are accompanying or following-to-join;
(2) A child born in a non-qualifying country in which neither parent was born nor resident at the time of the child’s birth, may claim the birthplace of either parent;
(3) A principal registrant born in a country, which is not among those for which DV visas are available, and the spouse who was born in a qualifying country, may be issued DV visas, provided the relationship was established prior to submitting the entry. In such instances, however, both applicants are considered principal applicants for the purpose of cross-chargeability and must be issued visas and apply for admission to the United States simultaneously.
Immigration and Nationality Act (202b)
Section 202(b)
(b) Rules for Chargeability. – Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. For the purposes of this Act the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that-
(1) an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year;
(2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year.
(3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and
(4) an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien’s birth may be charged to the foreign state of either parent.
9 FAM 42.33 N4.2 Chargeability
(CT:VISA-1555; 09-30-2010)
As stated in the regulatory definition, the normal rules of chargeability apply to INA 203(c) (8 U.S.C. 1153(c)) immigrants. Many applicants may seek beneficial treatment from the rules of cross chargeability, as in the following examples:
(1) A spouse or child born in a country, which is not among those for which DV visas are available, may use the principal registrant’s chargeability when they are accompanying or following-to-join;
(2) A child born in a non-qualifying country in which neither parent was born nor resident at the time of the child’s birth, may claim the birthplace of either parent;
(3) A principal registrant born in a country, which is not among those for which DV visas are available, and the spouse who was born in a qualifying country, may be issued DV visas, provided the relationship was established prior to submitting the entry. In such instances, however, both applicants are considered principal applicants for the purpose of cross-chargeability and must be issued visas and apply for admission to the United States simultaneously.
Immigration and Nationality Act (202b)
Section 202(b)
(b) Rules for Chargeability. – Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. For the purposes of this Act the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that-
(1) an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year;
(2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year.
(3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and
(4) an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien’s birth may be charged to the foreign state of either parent.
