by Careen Shannon
As documented in a report (“Gendered Paths to Legal Status”) issued by the Immigration Policy Council, immigration laws which appear gender neutral “actually contain gender biases that create barriers for many women trying to gain [lawful status] within the current immigration system.” Specifically, “immigration laws assume dependencies that privilege male applicants over females and that often make women an afterthought.” Below are just a few examples of how this is so.
For persons immigrating as the spouses of U.S. permanent residents, there are lengthy backlogs—sometimes lasting many years—that keep families separated. Since the sponsor in these types of cases is generally the man, this means that it is mostly women who suffer the consequences of the statutory and administrative backlogs that plague these visa categories, often languishing abroad for years, or living in the shadows in the United States.
In addition, our family-based immigration system prioritizes the nuclear family, and makes it difficult if not impossible for extended family members to immigrate. For example, if an adult U.S. citizen were to file a petition today to sponsor her brother or sister for permanent residence, that sibling would have to wait anywhere from 15 to 30 years (depending on country of birth) for a green card. Under current law, adult U.S. citizens can sponsor their parents for permanent residence, but permanent residents cannot, which forces many families to make hard choices about how to care for elderly parents left behind in their home countries.
Most temporary work visa categories, for example, do not grant work authorization to spouses who accompany the sponsored worker, which perpetuates women’s dependency. Both the immigrant (permanent) and nonimmigrant (temporary) employment-based visa categories favor men, largely because they are increasingly skewed toward encouraging the immigration of workers in the so-called STEM fields (science, technology, engineering and mathematics), who are overwhelmingly male. Immigrant women in the United States mostly toil as domestic workers, and with only 5,000 immigrant visas available each year for unskilled laborers (and yes, childcare workers and other domestics are considered unskilled workers), it is virtually impossible for a nanny or other domestic worker to secure lawful status.
Even laws enacted specifically in order to benefit immigrant women, like the immigration-related provisions of the Violence Against Women’s Act (VAWA), often create obstacles to women seeking lawful immigration status. For example, VAWA allows a battered immigrant woman to self-petition for permanent residence (rather than having to rely on her citizen or permanent resident husband to file a petition on her behalf), but she needs to demonstrate that she was living with the man who battered her. This can be challenging when it is only the husband who has lawful status and when all relevant documentation—leases, bank accounts, utility bills, and the like—is in his name alone and under his control.
The existing family-based immigration system would be amended to allow spouses and minor children of lawful permanent residents to immigrate without any annual quotas (currently the case only for parents, spouses and minor children of U.S. citizens), although parents of permanent residents would still be excluded.
Immigration judges would be empowered to close deportation proceedings if a person’s deportation would create hardship for his or her child or children (so long as those children are permanent residents or U.S. citizens). Currently, overzealous immigration enforcement disproportionately affects women, causing separation from loved ones and often leading to termination of women’s parental rights, but the Senate bill would protect women’s (and men’s) parental rights while they are detained pending deportation.
Overall, the Senate bill proposes a de-emphasis on family-based immigration in favor of more immigration of persons with advanced educational credentials and professional skills, and this would make it more difficult for women, who typically do not have equal access to higher education in their home countries. The current immigrant visa category allowing adult U.S. citizens to sponsor brothers and sisters for permanent residence would be eliminated, and this category now primarily benefits women. Given that women largely depend on the family-based system to immigrate legally to the United States, all of these changes would have a disproportionately negative impact on women.
The Senate bill would also require certain milestones related to border security and enforcement to be met before undocumented immigrants could become permanent residents—and any bill with any hope of passage in the House would undoubtedly contain even tougher security-related triggers. But the truth is that we have already exceeded all current goals related to border security and immigration enforcement, without accounting for the disproportionately negative collateral consequences of such enforcement on women and children.
In a period of just over two years, the U.S. government issued more than 200,000 deportation orders against parents of U.S. citizens—children who were born in the United States—leaving many of those children behind in the child welfare system. Older children, who may have been brought to the United States as infants and consider themselves American notwithstanding their lack of lawful immigration status, are often shut out of educational and vocational opportunities. While some such youth have been able to benefit from the Obama Administration’s decision to decline to deport them, absent passage of The DREAM Act or similar legislation, the future remains bleak for these individuals.