I want to apply for an employment based green card. Can I file the Adjustment of Status application concurrently with the I-140 petition? What is chargeability?

By May 26, 2020December 2nd, 2020Immigration
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If you want to apply for a green card (for example the EB-1A green card), you will first have to file an I-140 green card petition. You will only be able to file an Adjustment of Status application concurrently with the I-140 petition if the EB-1A category is current.

How do I find out whether the EB-1A category for my country is current?

You will have to look at the Visa Bulletin for the most recent month. Whether the category is current for you will depend on the country where you were born – this is called chargeability. Your green card application is chargeable to the numerical limitation applicable to your place of birth. It does not matter whether you later acquire a different nationality, the country of birth is what controls.

For example, if you would want to file the Adjustment of Status application based on the EB-1A category today (May 2020) and you were born in India, the current priority day is August 1, 2014. This means, that you would only be able to file the I-485 Adjustment of Status application if your I-140 petition was received by USCIS before August 1, 2014. It does not matter if you hold a dual citizenship (e.g. you are citizen of India and the UK), the country of birth is what controls.

When can I file the I-140 petition and the I-485 Adjustment of status petition concurrently?

You can only file the I-140 petition and the I-485 petition concurrently, if the Eb-1A category is current at the time you are filing the I-140 petition. If the category is not current, you will first have to file the I-140 petition and wait until the category becomes current. Only after the green card category becomes current will you be able to file the I-485 Adjustment of Status application.

What is cross-chargeability? Can I be charged to the country of my spouse?

In the scenario above, if you are from India, but your spouse was born in the UK, you may be charged to the country of your accompanying spouse – this is called cross-chargeability. Therefore, you could file the I-140 petition concurrently with the I-485 petition based on cross-chargeability doctrine if the category for the UK is current. The cross-chargeability doctrine’s main purpose is to prevent the separation of families and to preserve family unity.

Please note that you may only use the cross-chargeability doctrine, if both you and your spouse are eligible to adjust status. You and your spouse should file the Adjustment of Status applications at the same time, and the officer should approve them also at the same time.

Do I have to file any special petition to claim the cross-chargeability doctrine?

No, there is no special form for this. However, you should make it clear in your application that you are adjusting your status based on the cross-chargeability doctrine. You should put a bright colo

Why are certain green card categories not current? Why is it backlogged?

Some employment based categories are backlogged because there are more green card applicants than there are green cards available. Each year, there are 140,000 employment based green cards available for the 5 different employment categories. In addition, because the number of green cards that can be issued for particular country is limited (no country can receive more than 7% of the total green cards available for that category) countries such as India and China face huge backlogs.

Please see our blog post on how to maintain your green card when you click here.

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