Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.
QUESTION: I have an approved EB2 petition. I am an Indian citizen, however I was born in Oman. My parents moved there for work and lived there as non-immigrant workers. Do you think this would qualify me to use Oman as my country of chargeability? The lawyers that we used say that this will not work because the officers will request proof of my parents’ intent to live in Oman, not just work there temporarily. What do you think?
THE IMMIGRATION ANSWER MAN – ARI SAUER: I think your lawyers have the rule backwards. The primary rule of chargeability for the Visa Bulletin is that a foreign national is charged to their country of birth. The country of citizenship is almost always irrelevant when it comes to determining the country of chargeability.
Now there are some exceptions to this rule that would allow someone to use a different country of chargeability if visa availability was backlogged for their country of birth. These rules are a bit complicated, and it is recommended that you consult with an immigration lawyer before relying on one of these exceptions, but the basic rules are:
a) A spouse’s country of birth can be used as the foreign national’s country of chargeability where the foreign national is accompanying or following to join the spouse, if necessary to prevent the separation of the spouses;
b) A parent’s country of birth can be used as the foreign national child’s country of chargeability where the foreign national child is accompanying or following to join the parent, if necessary to prevent the separation of the child from the parent;
c) Someone who was born in the US (who did not receive US citizenship through their birth or abandoned their US citizenship) would be chargeable to their country of citizenship. If they do not have citizenship in any country, they would be charged to their last country of residence;
d) Someone who was born in a country in which neither of the person’s parents was born, and in which neither parents had a residence at the time of the person’s birth, may be charged to the country of birth of either parent.
So you see that someone born in Oman would be chargeable to Oman for purposes of visa availability.
The reason why I say that your lawyers have the rule backwards is because, while exception “d” listed above could potentially apply to you, you would only need to address your parents’ residence in Oman if you were trying to use the exception to show that you should be charged to India. Otherwise, being charged to Oman would be the “default” position.
If you are unable to provide an Omani birth certificate showing you were born in Oman, then you have a separate problem.
If you would like to consult with me about your visa availability or your would like my assistance with filing your application, you can schedule a consultation with immigration attorney Ari Sauer by calling 1-800-343-4890 or 901-682-6455 or by clicking here to
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By Ari Sauer
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* This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.