Country of chargeability

[hope74]

I recd. my Green Card (EB-2, India), but before we could file my wife's I-485, dates retrogressed. She was born in Singapore, holds an Indian passport. Can we file for her as my derivative - will she be considered EB-2 ROW ( Singapore as the country of chargeability)? or do I have to wait until EB-2 India dates move forward (June 2008 is my priority date)?

[JoeF]

SHe should be able to use cross-chargeability.

[Belle]

Get help of a really good lawyer immediately. The problems is that your green card was probably approved for India, even though you are entitled for ROW. The derivative can't be in a different category from the primary - so your whole category might need to be changed. Does your wife have an independent status, like H1 or F1? My big concern is that she may be out of status because of your approval.

[Belle]

SHe should be able to use cross-chargeability.

Hmm... That's a good question. As far as I know, only he can use cross chargeability because by defintion. cross chargeability is the use of derivative country to for the primary petition. However, since he can't use it any more (approved), she can't use her country either because a derivative can only be counted in the same bucket as the primary - as far as I know. Because of his approval, this might be a tough predicament.

[hope74]

Thanks for your replies. Yes, she is now on an independent H-1 (she was previously on a J1 and did not get the HRR waiver thru by the time my I-485 got approved). Her employer is unwilling to file for her Labor/I-140.

I had also filed a I-130 for her - the receipt notice lists her country of chargeability as Singapore. I will find a good lawyer to deal with this.

[hope74]

Finally figured it out...

she will be charged as ROW (Singapore), with my Priority Date. Cross-chargeability only applies if I want her to be charged against India

[Belle]

Good luck (to your wife)! I mean it - it is the standard for the USCIS to charge all derivatives against the country of chargeability of the primary applicant - I bet there is a rule like that, and I bet that's how their software is built (and try doing something the software won't do!). You need to make sure she is given an exception.