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What chargeability means. Chargeability is the rule that decides which country’s annual allotment of immigrant visas your case is counted against. Most green card categories are capped twice over, once worldwide and again for each individual country, so the chargeability area assigned to you is what determines which queue you stand in and how long that queue is. The governing provisions are 8 U.S.C. § 1152 and the Department of State regulation that implements it, 22 C.F.R. § 42.12.
Chargeability only matters where there is a numerical limit. Immediate relatives of U.S. citizens — the spouse of a citizen, the parent of a citizen who is at least 21, and an unmarried child under 21 — are exempt from the worldwide and per-country limits altogether, 8 U.S.C. § 1151(b)(2)(A)(i) and § 1101(b)(1), so nothing turns on where they were born. The same is true of several other classes that Congress placed outside the numerical scheme, among them refugees and asylees who adjust status, people granted cancellation of removal as permanent residents, and registry cases, 8 U.S.C. § 1151(b)(1). Where the category is capped — the family-sponsored preferences, the employment-based preferences, and the diversity program — chargeability controls.
The general rule is your country of birth. You are charged to the foreign state or dependent area in which you were born. Your nationality, the passport you travel on, where you live now, and where you will be applying make no difference to chargeability, 8 U.S.C. § 1152(b); 22 C.F.R. § 42.12(a). Each independent country, self-governing dominion, mandated territory, and territory under United Nations trusteeship other than the United States and its outlying possessions is treated as a separate foreign state for this purpose once the Secretary of State approves it, and all other inhabited lands are attributed to a foreign state that the Secretary specifies.
Birth in a dependent area. A person born in a colony or other component or dependent area situated overseas from the foreign state that governs it is charged by reference to that foreign state, 8 U.S.C. § 1152(c). A dependent area also carries a lower annual ceiling than an independent state, two percent rather than seven percent of the visas made available in the preference categories, 8 U.S.C. § 1152(a)(2).
Exception: a child charged to a parent. A child who is accompanying or following to join a parent may be charged to the parent’s foreign state rather than the child’s own, where that is necessary to prevent the child being separated from the parent, where the parent has received or would qualify for an immigrant visa, and where the parent’s chargeability area has not already reached its limit for the fiscal year, 8 U.S.C. § 1152(b)(1); 22 C.F.R. § 42.12(b). The regulation makes clear that this exception is available even to a child born in a dependent area.
Exception: one spouse charged to the other. Where husband and wife are chargeable to different foreign states, the spouse who is accompanying or following to join may be charged to the other spouse’s foreign state if that is necessary to prevent the couple being separated, again on condition that the other spouse has received or would qualify for an immigrant visa and that the other spouse’s area has not reached its limit for the year, 8 U.S.C. § 1152(b)(2); 22 C.F.R. § 42.12(c). This is the provision usually meant by the terms cross-chargeability and alternate chargeability, and it is the exception with the most practical value, because a couple born in two different states can often be measured against the shorter of the two queues.
How cross-chargeability works in practice. The benefit exists only while the marriage exists, and only where the spouse actually immigrates, either at the same time as the principal applicant or afterwards as a following-to-join derivative. If the spouse drops out of the case, or the marriage ends before permanent residence is granted, the more favorable chargeability goes with it. The statutory text is written from the point of view of the person who is accompanying or following to join; the widely followed practice of processing a couple who immigrate together under the more favorable of their two chargeability areas rests on Department of State instructions in the Foreign Affairs Manual rather than on the statute or the regulation, and it should be confirmed against current Department guidance before it is relied on.
Exception: birth in the United States. A person born in the United States is charged to the country of which that person is a citizen or subject, and if there is no such country, to the last foreign country of residence as determined by the consular officer, 8 U.S.C. § 1152(b)(3); 22 C.F.R. § 42.12(d). The exception is seldom reached, because birth in the United States ordinarily confers U.S. citizenship, and it matters mainly for the narrow group born here who did not acquire citizenship at birth, such as the children of accredited foreign diplomats.
Exception: birth in a country with which neither parent was connected. If you were born in a foreign state in which neither of your parents was born and in which neither of them had a residence at the time of your birth, you may be charged to the foreign state of either parent, 8 U.S.C. § 1152(b)(4); 22 C.F.R. § 42.12(e). The regulation adds an important gloss on what counts as residence: your parents are not treated as having acquired a residence in the country of your birth if they were merely visiting temporarily, or were stationed there on the business or professional orders of an employer, principal, or superior authority foreign to that country.
What the per-country limit actually is. The limit is a ceiling, not a reserved allocation. No more than seven percent of the immigrant visas made available in a fiscal year across the family-sponsored and employment-based preferences may go to natives of any single foreign state, and no more than two percent to natives of any dependent area, 8 U.S.C. § 1152(a)(2). The ceiling gives way where visas would otherwise go unused: if supply in a calendar quarter exceeds the number of qualified applicants, the per-country limit stops applying for the remainder of that quarter, 8 U.S.C. § 1152(a)(3), and a parallel rule operates within the employment-based categories, 8 U.S.C. § 1152(a)(5)(A). The diversity program carries its own seven percent cap on natives of a single foreign state, 8 U.S.C. § 1153(c)(1)(E)(v).
Why a per-country ceiling is not nationality discrimination. The Act separately forbids granting any preference or priority to, or discriminating against, a person in the issuance of an immigrant visa because of race, sex, nationality, place of birth, or place of residence, 8 U.S.C. § 1152(a)(1)(A). That prohibition is expressly subject to the per-country ceilings and to the allocation rules for the preference categories, which is why two otherwise identical cases can move at very different speeds according to chargeability without offending the nondiscrimination rule.
Where your own cut-off dates appear. The Department of State publishes the Visa Bulletin each month. For each preference category it gives a final action date and a date for filing, with one column covering every chargeability area that is not oversubscribed and separate columns for the small number of states whose demand exceeds the ceiling. Once you know your chargeability area, you read the column that applies to it and compare the date shown there with your priority date.
What chargeability does not affect. Chargeability does not decide whether you qualify for a category, it does not change your priority date, and it does not change the evidence you have to file. It settles only which set of numerical limits your case is measured against. A change in the underlying facts, such as a marriage, can change the chargeability available to you without altering anything else about the petition.
Related pages. List of primary avenues to U.S. Permanent Residency, Employment Based green cards, Family Based green cards, the Visa Lottery, Adjustment of Status, and contact Antao & Chuang.