I am going to be petitioned into the United States by my U.S. citizen son in the immediate relative category. My wife is not my son's mother but I married her before my son reached the age of 18. I also have a daughter who is under the age of 21. She is the sister of my U.S. citizen son. Can my immediate family get permanent resident status when I do?

Under INA §203(d), the spouse or child (under 21) of an alien sponsored in a family-based preference is entitled to the same status and order of consideration, if accompanying or following to join the spouse or parent. It is called "derivative" status. However, derivative status does NOT apply to the immediate relative category (which is not technically a family-based preference category). Your wife will not be entitled to obtain her permanent residence as a derivative beneficiary of you and neither will your minor child.

Although your wife is not the natural parent of your U.S. citizen son, he may still be able to sponsor her if she can be classified as his step-mother. A stepchild can be classified as the child of a stepparent (thus permitting immigration benefits) provided that he or she was under the age of 18 when the marriage creating the relationship occurred. In this case, you married your wife before your child reached the age of 18, so he is the child of your wife for the purpose of the immediate relative category. Your son will have to file a separate petition for your wife however. She cannot be included in your petition.

Your minor child will be a problem. Although she is the sister of your U.S. citizen son, it would take over ten years for a fourth preference visa to become available. However, once you and your wife are permanent residents, either one of you can petition your minor child under the 2a family-based preference. The problem is that there is currently a 2-3 year backlog in the 2a family-based preference. Waiting 2-3 years would probably cause hardship to your family.

Either you or your wife might instead apply under a nonimmigrant category (preferably one which permits dual intent) while the other is petitioned for permanent residence. The one who acquires permanent residence can immediately petition for the minor child under the immediate relative category. In the meantime, the other parent can obtain nonimmigrant status and bring the minor child into the United States as a dependent child. Once a visa becomes available for the child under the 2a preference, the child can seek permanent residence. The non-permanent resident parent can also seek permanent residence at the same time since there is no backlog in the immediate relative category. Both the parent and child will be petitioned separately.