Need help making a case regarding country of birth for Greencard

[ataa-2111]

Hello everyone. My employer is filing an EB-2 visa for me. I am trying to get the immigration lawyers to send me under the Sri Lankan quota. I was born in India because my parents were traveling at the time of my birth. I have 3 pieces of documentation that prove I'm Sri Lankan and never an Indian at any point of my life. They are -

1. My passport (always held a Sri Lankan passport)

2. Birth certificate registered in Sri Lanka

3. Citizenship Act of Sri Lanka (saying that I'm a Sri Lankan even though I was born outside Sri Lanka)

All three pieces of documentation accurately portray a birth place of India. However, I've never held an Indian citizenship or Indian passport. Is there some rule/documentation/way/instruction I can provide to my lawyers to convince them to make a case during the filing process so I correctly go under the Sri Lankan quota?

[newacct]

The fact that you never had Indian citizenship and always held Sri Lankan citizenship are irrelevant. Citizenship doesn't matter for chargeability. It is country of birth that matters. The only exception that would allow you to be charged to a different country is if you can show that neither of your parents were born in India, and neither of your parents was resident in India at the time of your birth. If you can show that, then you can be charged to the country of either of your parents.

See INA 202(b)(4) (8 USC 1152(b)(4)):

Quote

 

For the purposes of this chapter the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that

(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.

 

And 22 CFR 42.12(e):

Quote

(e) Exception for alien born in foreign state in which neither parent was born or had residence at time of alien's birth.  An alien who was born in a foreign state, as defined in § 40.1, in which neither parent was born, and in which neither parent had a residence at the time of the applicant's birth, may be charged to the foreign state of either parent as provided in INA 202(b)(4). The parents of such an alien are not considered as having acquired a residence within the meaning of INA 202(b)(4), if, at the time of the alien's birth within the foreign state, the parents were visiting temporarily or were stationed there in connection with the business or profession and under orders or instructions of an employer, principal, or superior authority foreign to such foreign state.

 

[Attorney_17]

The country of chargeability for a green card is based on your country of birth, not nationality. In this case, if you were born in India, you will be charged under India. If you are married to someone who was born elsewhere, you may be eligible to take advantage of cross-chargeability, which allows an applicant to file their green card application under the country of their spouse's birth. 

[ataa-2111]

On 9/5/2023 at 4:32 PM, Attorney_17 said:

The country of chargeability for a green card is based on your country of birth, not nationality. In this case, if you were born in India, you will be charged under India. If you are married to someone who was born elsewhere, you may be eligible to take advantage of cross-chargeability, which allows an applicant to file their green card application under the country of their spouse's birth. 

One of my parent's were born in India, but did not hold residency in India when I was born. Is there anyway to make a case when I file and leave it up to USCIS' discretion? I understand that the odds are not in my favor, but I am hoping to get any information that could possibly help me. It could save years off this process.

[Attorney_6]

You were born in India and one of your parents was born in India as well. You do not have an argument to make for cross-chargeability and will therefore be counted under India as your country of birth.