Immigrant visas, other than for immediate relatives, are distributed on a chronological basis determined by the date of filing of the petition, also called the Apriority date. Generally, the priority date in a family-based preference category is the date the visa petition was filed with the INS. For employment-based visas, the priority date is determined from the date the application for certification was accepted for processing by the Labor Department. The priority date has become a well-recognized factor in determining when a visa becomes available.
Most Filipinos are very familiar with the priority date system. It is well known that the priority dates for Filipinos are very backlogged and they move at a slower rate than for all other countries. For example, currently, petitions for a family-based first preference Filipino single son/daughter of a United States citizen are being processed for persons with priority dates from February 19, 1987, and it will take 30 years plus to get a green card under this category. For most other countries, applications for first preference petitions are being processed for March 15, 1997.
Another factor that is often overlooked is the country of chargeability. Generally, a preference visa is chargeable to the country where the applicant was born and has citizenship. This means that someone born in the Philippines will be charged as a Filipino; however, there are certain exceptions to this rule.
Children may be charged to the state of either parent when accompanying or following to join the parent. For a child born in the Philippines with Taiwanese citizen parents, that child (under 21) who is immigrating with at least one Taiwanese parent may be charged as being from Taiwan and be permitted to immigrate to the United States with that parent. The child does not have to wait until a visa is available for someone with his priority date from the Philippines and be charged as a citizen of the Philippines.
A very significant exception to the rule of chargeability is that a spouse may also be charged to the country of his/her spouse, so long as they are accompanying or following to join the spouse. Basically, even if the primary beneficiary is a Filipino, if the spouse’s country of citizenship would qualify for another country of chargeability, the beneficiary may derive chargeability from his or her spouse. What this means is that a Filipino who is married to an Australian may use the Australian spouse’s country of chargeability instead of waiting for the Filipino priority date to become current.
Many Filipinos have not become citizens because they have a single son or daughter over 21, whose priority date will drop from December 1, 1991 to February 19, 1987, if the parent becomes a citizen. By naturalizing, the son or daughter’s petition will be postponed for several more years! Usually within this waiting time, the single son or daughter cannot wait any longer and gets married. Since the son or daughter is waiting in the Philippines, they often marry a Filipino. If the petitioning parent has not naturalized BEFORE the marriage, the original petition has become canceled.
Even if the parent did naturalize prior to the couple’s marriage, the Filipino married son or daughter of the United States citizen has retained his original priority date, but must still wait about ten years until the now February 8, 1987 priority date become current. However, if the Asingle son or daughter of a U.S. citizen were to marry a national of any country, other than the Philippines, the priority date for a married son or daughter would jump from February 19, 1987 (for Filipino single son/daughter of U.S. citizen) to February 1, 1995 (for married son/daughter of U.S. citizen of any country other than Mexico). Even if the spouse were from Mexico, the priority date would still move up to November 22, 1989.
Even more importantly, these rules apply to all applicable categories. Specifically, those couples with inter-national marriages who are immigrating based on the following categories: married son or daughter, brother/sister of U.S. citizen, and any employment-based petitions.
These rules of derivative or alternative chargeability provide very good news for particular individuals who are married or plan to marry persons from a different country of origin than their own. What was formerly a 30 year plus wait can be adjusted down to a mere 3-year wait. In most all of these cases dealing with alternative or derivative chargeability, the timing of specific acts is very important and can be very tricky.