9 FAM 503.2

Chargeability

(CT:VISA-599;   06-01-2018)
(Office of Origin:  CA/VO/L/R)

9 fam 503.2-1  statutory and regulatory Authorities

9 FAM 503.2-1(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).

9 FAM 503.2-1(B)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.12.

9 FAM 503.2-1(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.

9 FAM 503.2-2  General Rule of Chargeability

(CT:VISA-532;   03-26-2018)

The numerical limitations prescribed in INA 201, INA 202, and INA 203 apply to the foreign states and dependent areas.  (See 9 FAM 503.2-5 below.)  An immigrant visa applicant subject to these numerical limitations is generally chargeable to the numerical limitation applicable to the applicant’s place of birth.  An immigrant visa 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 alien’s place of birth has undergone changes in political jurisdiction since the time of his or her birth, the alien is 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 9 FAM 503.2-4 below for exceptions to the general chargeability rule.

9 FAM 503.2-3  Definitions

9 FAM 503.2-3(A)  "Foreign State" Defined

(CT:VISA-532;   03-26-2018)

a. For the purposes of 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 in the same manner as before December 20, 1999.

9 FAM 503.2-3(B)  "Dependent Area” Defined

(CT:VISA-532;   03-26-2018)

For the purposes of INA 201, INA 202 and INA 203, the term "dependent area" must include any colony, component, or dependent area of a foreign state.

9 FAM 503.2-3(C)  “Accompanying” Defined

(CT:VISA-1;   11-18-2015)

The INA defines “accompanying” to include not only an alien in the physical company of the principal alien, but also a spouse or child issued a visa within six months of:

(1)  The principal alien's admission into the United States;

(2)  The principal alien's adjustment to lawful permanent resident status; or

(3)  The principal alien's personal appearance and registration at any Foreign Service post for the purpose of conferring alternate chargeability.  (See 9 FAM 503.2-4(A) below.)

9 FAM 503.2-4  Exceptions to General Chargeability Rule

(CT:VISA-1;   11-18-2015)

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 9 FAM 503.2-4(A) below);

(2)  An alien born in the United States (see 9 FAM 503.2-4(B) below); or

(3)  An alien born in a foreign state in which neither parent was born or had residence at the alien's time of birth (see 9 FAM 503.2-4(C) below).

9 FAM 503.2-4(A)  Derivative Chargeability

(CT:VISA-532;   03-26-2018

a. Alternate Chargeability to Prevent Separation of Families:

(1)  In order to prevent the separation of families, a spouse or child may be charged to the foreign state/dependent area of the principal alien provided:

·         A visa would not be immediately available if the spouse or child were charged to his or her 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 Alien Not Charged to Foreign State:  For the purposes of derivative chargeability under INA 202(b) (1) and (2), the parent or spouse need not actually have been charged to a foreign state or dependent area in order to confer that chargeability on a child or spouse.  It is sufficient that the alien would be chargeable to that foreign state.  For example, a parent or spouse entitled to immediate relative or special immigrant 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 Prior to Admission:

(1)  A spouse or child acquired prior to the admission of the principal alien may be considered to be “following-to-join,” regardless of the time which may have elapsed since the principal alien’s admission to the United States.  The principal alien 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 alien’s admission is considered to have been “acquired” prior to the principal alien’s admission.

d. If Spouse or Child Acquired Subsequent to Admission:  A spouse or child acquired subsequent to the principal alien's admission to the United States may benefit from derivative chargeability only when “accompanying” the principal alien.

e. Derivative Foreign State Chargeability if Principal Alien Benefited From Alternate Chargeability:  An alien 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-21 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 Alien'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 alien becomes a naturalized citizen.  In such a case, the principal alien 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 an alien traveling abroad to confer alternate chargeability to travel to the post where the visa will be issued.  If an alien travels to another post for the purpose of conferring alternate chargeability, the post of registration must send the issuing post an email or cable informing them of the alien’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 legal permanent resident (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 immigrant visa (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 his or her 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 immigrant visa applicants may be considered principal aliens.  The beneficiary is the principal alien for the purpose of conferring a preference status and the accompanying spouse is the principal alien for the purpose of conferring 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.  The consular officer, therefore, must issue visas to both applicants simultaneously.

(2)  The principles described in the paragraph above may apply in the case where one spouse benefits from the provisions of INA 212(g), while the other spouse may benefit, through the afflicted alien, from a more favorable foreign state chargeability, or special immigrant or preference immigrant status.

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.

9 FAM 503.2-4(B)  Applicant Born in the United States

(CT:VISA-1;   11-18-2015)

a. INA 202(b)(3) applies to persons who, although born in the United States, are:

(1)  Aliens 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 immigrant visa applicant born in the United States shall be chargeable to:

(1)  The country of which he or she is a citizen or subject; or

(2)  The country of the alien’s last place of residence, if the alien is not a citizen or subject of any country.

c.  The consular officer must resolve any doubts regarding an immigrant visa applicant’s U.S. citizenship status before final action is taken on the visa application.  (See 9 FAM 202.1-2and 9 FAM 504.9-7.)

9 FAM 503.2-4(C)  Applicant’s Place of Birth is Not Parents' Country of Birth or Residence

(CT:VISA-1;   11-18-2015)

If the consular officer has 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 alien born on the high seas.

9 FAM 503.2-5  Foreign States and Dependent areas

9 FAM 503.2-5(A)  Foreign States Subject to Annual Limitation Pursuant to Section 202(A) of Immigration and Nationality Act*

(CT:VISA-599;   06-01-2018)

Foreign State

**Symbol

Afghanistan

AFGH

Albania

ALB

Algeria

ALGR

Andorra

ANDO

Angola

ANGL

Antigua and Barbuda

ANTI

Argentina

ARG

Armenia

ARM

Australia1

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

China2

 

 *mainland born

CHIN

 *Taiwan born

TWAN

Colombia

COL

Comoros

COMO

Congo, Republic of the (Congo Brazzaville)

CONB

Congo, Democratic Republic of the (Congo Kinshasa)

COD

Costa Rica

CSTR

Cote d’Ivoire (Ivory Coast)

IVCO

Croatia

HRV

Cuba

CUBA

Cyprus

CYPR

Czech Republic

CZEC

Denmark1

DEN

Djibouti

DJI

Dominica

DOMN

Dominican Republic

DOMR

Ecuador

ECUA

Egypt3

EGYP

El Salvador

ELSL

Equatorial Guinea

EGN

Eritrea

ERI

Estonia

EST

Eswatini

SZLD

Ethiopia

ETH

Fiji

FIJI

Finland

FIN

France1, 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

India6

IND

Indonesia

IDSA

Iran

IRAN

Iraq

IRAQ

Ireland

IRE

Israel3

ISRL

Italy

ITLY

Jamaica

JAM

Japan7

JPN

Jordan3

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

Macedonia

MKD

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

Morocco12

MORO

Mozambique

MOZ

Namibia

NAMB

Nauru

NAU

Nepal

NEP

Netherlands1, 13

NETH

New Zealand1

NZLD

Nicaragua

NIC

Niger

NIR

Nigeria

NRA

Norway1

NORW

Oman

OMAN

Pakistan6

PKST

Palau

PALA

Panama

PAN

Papua New Guinea

PNG

Paraguay

PARA

Peru

PERU

Philippines

PHIL

Poland

POL

Portugal1, 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

Spain9

SPN

Sri Lanka

SRL

Sudan

SUDA

Suriname

SURM

Sweden

SWDN

Switzerland

SWTZ

Syria3

SYR

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.

1Foreign states which have dependent areas.

2Persons born in Manchuria, Inner Mongolia, Sinkiang, and Tibet are chargeable to the limitation for China-mainland.

3Persons born in the areas administered prior to June 1967 by Israel, Jordan, Egypt and Syria are chargeable, respectively, to the foreign state limitation for Israel, Jordan, Egypt, and Syria.

4For the purpose of the Diversity Immigrant category only, Northern Ireland is treated as a separate visa chargeability per INA 203(c); the symbol for Northern Ireland is NIRE.

5Treated as a separate chargeability area per section 103 of the Immigration Act of 1990.

6Persons 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.

7Persons born in the Habomai Islands, Shikotan, Kunashiri, Etorofu, and Southern Sakhalin are chargeable to the foreign state limitation for Japan.

8Madeira and the Azores are included as integral parts of Portugal.

9The 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 considered as integral parts of Spain.

10The 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 in the same manner as before December 20, 1999.  Consequently, Macau immigrant visa numbers are chargeable to Portugal.

11French Guiana, Guadeloupe, Martinique, Reunion, and Mayotte are considered integral parts of France.

12See 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.

9 FAM 503.2-5(B)  Dependent Areas Subject to Annual Limitation Pursuant to Section 202(A) of Immigration and Nationality Act*

(CT:VISA-1;   11-18-2015)

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 Martin1

MAF

Saint Pierre and Miquelon

SPMI

Wallis and Futuna

WAFT

MOROCCO:

Western Sahara2

SSAH

NETHERLANDS:

Aruba

ARB

Curacao

CUR

Sint Maarten1

STM

NEW ZEALAND:

Cook Islands

CKIS

Niue

NIUE

Tokelau

TKL

NORWAY:

Svalbard

SJM

PORTUGAL:

Macau3

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. Helena4

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.

1Persons 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.

2Disputed 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.

3Effective 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 in the same manner as before December 20, 1999.

4The Tristan da Cunha Group and Ascension Island are part of St. Helena.