Dear Mrs Walker-Huntington,
My husband was filed for by his daughter, who is a United States (US) citizen. We both thought that since we are married, the visa would have been granted to both of us since all information was provided for us both. The visa was only granted to my husband and all documents for me were returned. We have received a letter stating that derivative family is not considered under this category. I take this to be in reference to me. My husband has since migrated. What is the next step for me to join my husband? Will I have to wait for five years for him to be a US citizen for him to file for me?
If you married your husband before his US citizen daughter was 18 years old, she can file a petition for you directly as her stepmother. As such you would be considered an immediate relative and the petition should take nine months to a year to be processed; however, if the marriage took place when she was 18 or older, she cannot. There is no derivative beneficiary when a son or daughter files for a parent - separate petitions have to be filed if qualified.
As a permanent resident of the US, your husband is free to file for you as his wife (if his daughter is not eligible to file for you) immediately. Your petition would not be considered that of an immediate relative and once approved, you would be placed in the second preference category - spouse of a permanent resident - and would have to wait for your priority date to become current. In December, 2012, the US Department of State is processing persons in the second preference category with a priority date prior to August 22, 2010.
If your husband waits five years until he becomes a US citizen and files for you to join him in the US, you would be considered an immediate relative and it would take nine months to a year for that petition to be processed; however, it is possible for you to migrate faster if he files for you as a permanent resident with a current processing time of two years and three months.
Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and personal injury law in Florida. She is a mediator, arbitrator, and special magistrate in Broward County, Florida. firstname.lastname@example.org