9 FAM 503.2

9 FAM 503.2 Chargeability (CT:VISA-1945; 03-07-2024) (Office of Origin: CA/VO) 9 fam 503.2-1 statutory and regulatory Authorities .2-1(A) Immigration and Nationality Act (CT:VISA-1; 11-18-2015) INA 201(b) (8 U.S.C. 1151(b ; INA 101(a)(27)(A)-(B) (8 U.S.C. 1101(a)(27)(A)-(B ; INA 202 (8 U.S.C. 1152). .2-1(B) Code of Federal Regulations (CT:VISA-1; 11-18-2015) 22 CFR 42.12. .2-1(C) Public Law (CT:VISA-1; 11-18-2015) International Security and Development Cooperation Act of 1981, Public 97-113, sec. 714; Immigration Act of 1990, Public Law 101-649, sec. 103, 112, 124, 132, and 134. .2-2 General Rule of Chargeability (CT:VISA-1402; 10-29-2021) The numerical limitations prescribed in INA 201, INA 202, and INA 203 apply to the foreign states and dependent areas. (See .2-5 below.) An IV applicant subject to these numerical limitations is generally chargeable to the numerical limitation applicable to the applicant’s place of birth. An IV applicant born in a dependent area is chargeable to the dependent area (to ensure compliance with the dependent-area limitation imposed in INA 202), as well as to the mother country. (1) Changes in territorial limits: If an individual's place of birth has undergone changes in political jurisdiction since their birth, they are subject to the foreign state limitation of the state which has jurisdiction over that place of birth at the time of visa application. (2) Exceptions: See .2-4 below for exceptions to the general chargeability rule. .2-3 Definitions .2-3(A) "Foreign State" Defined (CT:VISA-1402; 10-29-2021) a. Under INA 201, INA 202, or INA 203, the term "foreign state" includes: (1) Any independent country; (2) Any self-governing dominion; (3) Any mandated territory; and (4) Any territory under the international trusteeship of the United Nations. b. Section 103 of Public Law 101-649 made Hong Kong the equivalent of a foreign state beginning in FY 1991. c. Title II of Public Law 106-570 provides that, notwithstanding any change in the exercise of sovereignty over Macau, the laws of the United States continue to apply to Macau as they did before December 20, 1999. .2-3(B) "Dependent Area” Defined (CT:VISA-1402; 10-29-2021) Under INA 201, INA 202 and INA 203, the term "dependent area" must include any colony, component, or dependent area of a foreign state. .2-3(C) “Accompanying” Defined (CT:VISA-1659; 11-30-2022) The INA defines “accompanying” to include not only an individual in the physical company of the principal applicant, but also a spouse or child issued a visa within six months of: (1) The principal's admission into the United States; (2) The principal's adjustment to LPR status; or (3) The principal 's personal appearance and registration at any consular section abroad to confer alternate chargeability. See .2-4(A) below. .2-4 Exceptions to General Chargeability Rule (CT:VISA-1402; 10-29-2021) Exceptions to the general rule of chargeability are set forth in 22 CFR 42.12(b), (c), (d), and (e). These exceptions are as follows: (1) An accompanying or following-to-join spouse or child for whom a visa would not otherwise be available (see .2-4(A) below); (2) An applicant born in the United States (see .2-4(B) below); or (3) An applicant born in a foreign state in which neither parent was born or had residence at the applicant's time of birth. See .2-4(C) below. .2-4(A) Derivative Chargeability (CT:VISA-1659; 11-30-2022) a. Alternate Chargeability to Prevent Separation of Families: (1) A spouse or child may be charged to the foreign state/dependent area of the principal to prevent the separation of families, if: · A visa would not be immediately available if the spouse or child were charged to their country of birth; and · The spouse or child is accompanying or following-to-join the parent or spouse. (2) If either of these elements is missing, alternate chargeability may not be used. (3) For cases in which one spouse confers preference status and the other confers derivative chargeability, see paragraph h below. b. If Principal Not Charged to Foreign State: According to INA 202(b) (1) and (2), the parent or spouse need not actually have been charged to a foreign state or dependent area to confer that chargeability on a child or spouse. It is sufficient that they would be chargeable to that foreign state. For example, a parent or spouse entitled to IR or SIV status may confer derivative foreign state chargeability if the child or spouse, as defined in the INA (see 9 FAM 102.8) , is accompanying or following-to-join the parent or spouse. c. If Spouse or Child Acquired Before Admission: (1) A spouse or child acquired before the admission of the principal are “following-to-join,” regardless of the time which may have elapsed since the principal's admission to the United States. They need not travel abroad to confer derivative foreign state chargeability. (2) A child born of a marriage that existed at the time of the principal's admission has been “acquired” before the principal admission. d. If Spouse or Child Acquired After Admission: A spouse or child acquired after the principal's admission to the United States or their adjustment of status to that of LPR may benefit from derivative chargeability only when “accompanying” the principal. e. Derivative Foreign State Chargeability if Principal Benefited From Alternate Chargeability: An immigrant who benefited from alternate chargeability retains that chargeability for all time and all purposes, and thus may confer that alternate chargeability to a spouse or child if it is more favorable. For example, an F-32 applicant born in China-mainland whose spouse was also born in China-mainland but was granted Hong Kong chargeability at the time of immigration may be granted Hong Kong chargeability when accompanying or following-to-join the principal applicant. f. Effect of Principal's Naturalization: The lack of a time limit on when a following-to-join derivative may immigrate may result in a case where the principal becomes a naturalized citizen. In such a case, they should file a relative petition for the family member. See 22 CFR 42.21(a) and 9 FAM 502.2-2(C). g. Traveling abroad to confer derivative chargeability: It is not necessary for a principal traveling abroad to confer alternate chargeability to travel to the post where the visa will be issued. If they travel to another post to confer alternate chargeability, the consular section at the post of registration must send the issuing consular section an email or cable informing them of the principal's appearance and registration. Inasmuch as the law permits a child or spouse to follow to join in lieu of accompanying, this procedure will rarely be necessary. It would, however, be required in the case of an after-acquired spouse otherwise chargeable to an over-subscribed foreign state (e.g., a family-based second preference applicant born in India for whom numbers are not available may derive the LPR spouse’s U.K. chargeability when “accompanying” the LPR to the United States). See paragraph d. above. h. If Foreign State Chargeability Obtained from Derivative Spouse: An IV applicant may derive a more favorable foreign state chargeability from an accompanying spouse under INA 202(b)(2) . For example, if the beneficiary of an Employment Second Preference petition was born in India and the accompanying spouse in France, the principal applicant born in India may be charged to their spouse’s country of chargeability (France) if the priority date is not current for India but is current for France. See 9 FAM 504.3-3(B) . (1) When one spouse can confer a more favorable preference status at the same time the other spouse can confer a more favorable foreign state chargeability, both IV applicants are principal applicants. The beneficiary is the principal to confer a preference status and the accompanying spouse is the principal to confer a more favorable foreign state chargeability. In such cases, both applicants must be admitted to the United States simultaneously and neither party is allowed to precede the other. This means that you must issue visas to both applicants simultaneously. i. No Derivative Chargeability for Parents: Although a child may derive alternate chargeability through a parent, a parent may not derive alternate chargeability from a child. .2-4(B) Applicant Born in the United States (CT:VISA-1659; 11-30-2022) a. INA 202(b)(3) applies to persons who, although born in the United States, are: (1) Noncitizens by virtue of not having been subject to the jurisdiction of the United States at the time of birth (for example, children born to diplomats); or (2) Former U.S. citizens who have lost their U.S. citizenship through expatriation. b. Under the provisions of INA 202(b)(3), an IV applicant born in the United States shall be chargeable to: (1) The country of which they are a citizen or subject; or (2) The country of last place of residence, if they are not a citizen or subject of any country. c. You must resolve any doubts regarding an IV applicant’s U.S. citizenship status before the visa application before making a final adjudication. See 9 FAM 202.1-2 and 9 FAM 504.9-7. .2-4(C) Applicant’s Place of Birth is Not Parents' Country of Birth or Residence (CT:VISA-1402; 10-29-2021) If you have determined that, at the time of the child’s birth, the parent or parents were stationed in such country under orders or instructions of an employer, principal, or superior authority whose business or profession was foreign to that foreign state, the applicant may be charged to the foreign state of either parent. The provisions of INA 202(b)(4) also apply to an individual born on the high seas. .2-5 Foreign States and Dependent areas .2-5(A) Foreign States Subject to Annual Limitation Pursuant to 202(A) of Immigration and Nationality Act * (CT:VISA-1945; 03-07-2024) Foreign State | **Symbol Afghanistan | AFGH Albania | ALB Algeria | ALGR Andorra | ANDO Angola | ANGL Antigua and Barbuda | ANTI Argentina | ARG Armenia | ARM Australia 1 | ASTL Austria | AUST Azerbaijan | AZR Bahamas, The | BAMA Bahrain | BAHR Bangladesh | BANG Barbados | BRDO Belarus | BYS Belgium | BELG Belize | BLZ Benin | BENN Bhutan | BHU Bolivia | BOL Bosnia and Herzegovina | BIH Botswana | BOT Brazil | BRZL Brunei | BRNI Bulgaria | BULG Burkina Faso | BURK Burma | BURM Burundi | BRND Cabo Verde | CAVI Cambodia | CBDA Cameroon | CMRN Canada | CAN Central African Republic | CAFR Chad | CHAD Chile | CHIL China - mainland born 2 | CHIN Colombia | COL Comoros | COMO Congo, Republic of the (Congo Brazzaville) | CONB Congo, Democratic Republic of the (Congo Kinshasa) | COD Cook Islands | CKIS Costa Rica | CSTR Cote d’Ivoire (Ivory Coast) | IVCO Croatia | HRV Cuba | CUBA Cyprus | CYPR Czech Republic | CZEC Denmark 1 | DEN Djibouti | DJI Dominica | DOMN Dominican Republic | DOMR Ecuador | ECUA Egypt 3 | EGYP El Salvador | ELSL Equatorial Guinea | EGN Eritrea | ERI Estonia | EST Eswatini | SZLD Ethiopia | ETH Fiji | FIJI Finland | FIN France 1, 11 | FRAN Gabon | GABN Gambia, The | GAM Georgia | GEO Germany | GER Ghana | GHAN Great Britain and Northern Ireland (United Kingdom) 1, 4 | GRBR Greece | GRC Grenada | GREN Guatemala | GUAT Guinea | GNEA Guinea-Bissau | GUIB Guyana | GUY Haiti | HAT Honduras | HOND Hong Kong S.A.R. 5 | HNK Hungary | HUNG Iceland | ICLD India 6 | IND Indonesia | IDSA Iran | IRAN Iraq | IRAQ Ireland | IRE Israel 3 | ISRL Italy | ITLY Jamaica | JAM Japan 7 | JPN Jordan 3 | JORD Kazakhstan | KAZ Kenya | KENY Kiribati | KIRI Korea, North | PRK Korea, South | KOR Kosovo | KSV Kuwait | KUWT Kyrgyzstan | KGZ Laos | LAOS Latvia | LATV Lebanon | LEBN Lesotho | LES Liberia | LIBR Libya | LBYA Liechtenstein | LCHT Lithuania | LITH Luxembourg | LXM Madagascar | MADG Malawi | MALW Malaysia | MLAS Maldives | MLDV Mali | MALI Malta | MLTA Marshall Islands | RMI Mauritania | MAUR Mauritius | MRTS Mexico | MEX Micronesia, Federated States of | FSM Moldova | MLD Monaco | MON Mongolia | MONG Montenegro | MTG Morocco 12 | MORO Mozambique | MOZ Namibia | NAMB Nauru | NAU Nepal | NEP Netherlands 1, 13 | NETH New Zealand 1 | NZLD Nicaragua | NIC Niger | NIR Nigeria | NRA Niue | NIUE North Macedonia | MKD Norway 1 | NORW Oman | OMAN Pakistan 6 | PKST Palau | PALA Panama | PAN Papua New Guinea | PNG Paraguay | PARA Peru | PERU Philippines | PHIL Poland | POL Portugal 1, 8, 10 | PORT Qatar | QTAR Romania | ROM Russia (Russian Federation) | RUS Rwanda | RWND Saint Kitts and Nevis | STCN Saint Lucia | SLCA Saint Vincent and the Grenadines | STVN Samoa | WSAM San Marino | SMAR Sao Tome and Principe | STPR Saudi Arabia | SARB Senegal | SENG Serbia | SBA Seychelles | SEYC Sierra Leone | SLEO Singapore | SING Slovakia | SVK Slovenia | SVN Solomon Islands | SLMN Somalia | SOMA South Africa | SAFR South Sudan | SSDN Spain 9 | SPN Sri Lanka | SRL Sudan | SUDA Suriname | SURM Sweden | SWDN Switzerland | SWTZ Syria 3 | SYR Taiwan | TWAN Tajikistan | TJK Tanzania | TAZN Thailand | THAI Timor-Leste | TMOR Togo | TOGO Tonga | TONG Trinidad and Tobago | TRIN Tunisia | TNSA Turkey | TRKY Turkmenistan | TKM Tuvalu | TUV Uganda | UGAN Ukraine | UKR United Arab Emirates | UAE Uruguay | URU Uzbekistan | UZB Vanuatu | VANU Vatican City | VAT Venezuela | VENZ Vietnam | VTNM Yemen | YEM Zambia | ZAMB Zimbabwe | ZIMB *The Immigration Act of 1990 (Public Law 101-649) amended section 202(a) of the Immigration and Nationality Act to increase the annual foreign state limitation. The annual foreign state limitation shall not exceed seven percent of the total annual limitation. This amendment was effective October 1, 1991. **Symbol for statistical reporting. 1 Foreign states which have dependent areas. 2 Persons born in Manchuria, Inner Mongolia, Sinkiang, and Tibet are chargeable to the limitation for China-mainland. 3 Persons born in the areas administered before June 1967 by Israel, Jordan, Egypt, and Syria are chargeable, respectively, to the foreign state limitation for Israel, Jordan, Egypt, and Syria. 4 For the DV category only, Northern Ireland is treated as a separate visa chargeability per INA 203(c); the symbol for Northern Ireland is NIRE. 5 Treated as a separate chargeability area per section 103 of the Immigration Act of 1990. 6 Persons born in Junagadh and that portion of Jammu and Kashmir controlled by India are chargeable to the foreign state limitation for India. Persons born in that portion of Jammu and Kashmir controlled by Pakistan are chargeable to the foreign state limitation for Pakistan. 7 Persons born in the Habomai Islands, Shikotan, Kunashiri, Etorofu, and Southern Sakhalin are chargeable to the foreign state limitation for Japan. 8 Madeira and the Azores are included as integral parts of Portugal. 9 The Balearic Islands, the Canary Islands, and the following areas of Spanish sovereignty in North Africa - Ceuta, Islas Chafarinas, Melilla, Penon de Alhucemas and Penon de Velez de la Gomera - are integral parts of Spain. 10 The Macau Policy Act (incorporated and enacted as Title II of Public Law 106-570) provides that the laws of the United States shall apply to Macau as they did before December 20, 1999. Consequently, Macau IV numbers are chargeable to Portugal. 11 French Guiana, Guadeloupe, Martinique, Reunion, and Mayotte are integral parts of France. 12 See below regarding the status of Western Sahara. 13 Bonaire, Saba, and Sint Eustatius are integral parts of the Netherlands and thus should be charged to the Netherlands. .2-5(B) Dependent Areas Subject to Annual Limitation Pursuant to 202(A) of Immigration and Nationality Act* (CT:VISA-1945; 03-07-2024) Governing Country and Dependent Areas Symbol** AUSTRALIA: Christmas Island | CHRI Cocos (Keeling) Islands | COCI Norfolk Island | NFK DENMARK: Faroe Islands | FRO Greenland | GRLD FRANCE: French Polynesia | FPOL French Southern and Antarctic Lands | FSAT New Caledonia | NCAL Saint Barthelemy | STBR Saint Martin 1 | MAF Saint Pierre and Miquelon | SPMI Wallis and Futuna | WAFT MOROCCO: Western Sahara 2 | SSAH NETHERLANDS: Aruba | ARB Curacao | CUR Sint Maarten 1 | STM NEW ZEALAND Tokelau | TKL NORWAY: Svalbard | SJM PORTUGAL: Macau 3 | MAC UNITED KINGDOM: Anguilla | ANGU Bermuda | BERM British Indian Ocean Territory (Diego Garcia) | IOT British Virgin Islands | BRVI Cayman Islands | CAYI Falkland Islands | FKLI Gibraltar | GIB Montserrat | MONT Pitcairn Islands | PITC South Georgia and the South Sandwich Islands | SGS St. Helena 4 | SHEL Turks and Caicos Islands | TCIS *The Immigration Act of 1990 (Public Law 101‑649) amended section 202(a) of the Immigration and Nationality Act to increase the annual dependent area limitation. The annual dependent area limitation shall not exceed 2 percent of the total annual limitation. This amendment was effective October 1, 1991. **Symbol for statistical reporting. 1 Persons born in the portion of St. Martin controlled by France are chargeable to St. Martin; those born in the Netherlands-controlled portion are chargeable to Sint Maarten. 2 Disputed Territory. See United Nations Mission for the Referendum on Western Sahara and Security Council Resolution 1720 of October 31, 2006. Morocco virtually annexed the northern two-thirds of Western Sahara (formerly Spanish Sahara) in 1976, and the rest of the territory in 1979, following Mauritania's withdrawal. A guerrilla war with the Polisario Front contesting Rabat's sovereignty ended in a 1991 UN-brokered cease-fire; a UN-organized referendum on final status has been repeatedly postponed. 3 Effective December 20, 1999, Macau was returned to Chinese administration and was designated as the Special Administrative Region of Macau. Title II (United States-Macau Policy Act of 2000) of Public Law 106-570 enacted December 27, 2000 provides that, notwithstanding any change in the exercise of sovereignty over Macau, the laws of the United States shall continue to apply with respect to Macau as they did before December 20, 1999. 4 The Tristan da Cunha Group and Ascension Island are part of St. Helena.