A beneficiary, along with his/her family members, of an employment based immigration petition (I-140), is eligible to file adjustment of status (I-485) if an immigrant visa number is available to him or her. A beneficiary’s visa number is available if the priority date is prior to the “cut-off date” published by the Department of State in its visa bulletin that is updated monthly.

The priority date is the date that an alien initially expresses his/her intent to immigrate to the United States through an appropriate petition. For an employment-based immigration petition, the priority date is the date of the filing of the labor certification application (PERM) or the date of the filing of the I-140 petition when labor certification is not required in the category (EB-1a/b, and NIW). In general, the spouse and minor children of the principal applicant will be assigned the same priority date of the principal applicant.

Under the current visa number allocation system, each country is assigned a limited number of immigrant visas every year. If the visa number for a particular country is oversubscribed, applicants born in that particular country will be subject to visa retrogression and have to wait for the priority date to reach the published cut off date. Please note, it is the applicant’s country of birth rather than nationality or citizenship that determines the availability of visa numbers.

However, there is a “cross-chargeability” exception that allows the visa number for a principal applicant to be charged to the country of birth of the accompanying spouse if the visa number for the same category of the spouse’s country of birth is available or in shorter line. In addition, alien children may be charged to the foreign country of either parent when accompanying or following to join their parent(s). Please note, however, the children’s place of birth will not offer benefit to their parents with respect to the cross-chargeability rule.

For example, Dr. Chen is a Post-doc born in China and his wife was born in China too. Dr. Chen wants to file his I-140 petition under the EB-2 NIW category. Can Dr. Chen file his I-140 & I485 concurrently? Now, as of May 4, 2007, the “cut-off date” of May 2007 for EB-2 (NIW) immigration category for petitioners born in China is April 22, 2005. There is no current visa number for EB-2 China-born applicants. Therefore, Dr. Chen cannot concurrently file I-140 & I-485 petitions. He can only file his I-140 for the time being. If Dr. Chen filed his I-140 petition on April 1, 2005, he and his wife can file I-485 petitions now as visa numbers for them are available.

However, if Dr. Chen’s wife was born in Korea, he can use the visa number of Korea. As for the time being (May 4, 2007), visa numbers are available (cut-off date is “Current” in the visa bulletin) for EB-2 applicants born in Korea, Dr. Chen and his wife may file I-485s concurrently with Dr. Chen’s NIW I-140 petition since Dr. Chen’s visa number can be charged to Korea’s visa numbers.

In addition, if Dr. Chen and his wife were both born in China but their son was born in Korea, Mr. Chen cannot use the available visa numbers of Korea since the Children’s place of birth does not benefit their parents with respect to the cross-chargeability. Then, he and his wife cannot file I-485s concurrently with Dr. Chen’s NIW I-140 petition.

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