Will Immigration Reform Correct the Immigration System’s Gender Bias?

Written by on May 29, 2013 in Legislation, Reform with 5 Comments

shutterstock_29804098Within the current immigration system, many women confront systematic barriers when trying to gain legal status. This is one of the main conclusions drawn from a study conducted by social scientists Cecilia Menjivar and Olivia Salcido. Based on a 10-year-long research project on immigrant women in Arizona, the authors identify specific instances in which gender inequality is ingrained in the formulation, interpretation, and implementation of immigration laws.

According to the study, immigration law presumes and reinforces women’s status of dependency, hindering women’s legal incorporation in the host society. For example, for women, employment-based visas are very difficult to obtain. This is true even for many women who “support their families as heads of households by literally working day and night.” In part, this relates to the types of occupations that the law encodes as high-demand jobs. These occupations tend to be elusive for women, and the types of work typically performed by immigrant women are not adequately recognized in the current system. As a result, women who apply for permanent residence tend to rely on male relatives to petition for them in the legalization process. Because of additional structural barriers—such as access to education and skill acquisition in their countries of origin—women have fewer opportunities than men to apply as principal visa holders.

Other problems identified by the study relate to the specific obstacles that women encounter when they seek protection through the Violence Against Women Act or petition for asylum. These hurdles range from burdensome and difficult-to-obtain paperwork (e.g. proof of abuse) to more structural issues concerning how “well-founded fear” of persecution is defined. In particular, the authors underscore that the standard interpretation of immigration and refugee law is based on male experiences and, therefore, does not adequately recognize the risks that women are exposed to in their home countries.

Moreover, the obstacles for women’s legal integration do not end with the petitioning phase. Even after a woman successfully begins the legalization process, it is sometimes difficult for her to secure employment outside the home because work authorizations often take a long time to be issued.

Reforms in immigration law that are currently being debated offer an opportune moment to address these issues. In particular, the recently introduced “Border Security, Economic Opportunity, and Immigration Modernization Act’’ has raised concerns regarding the potential gender bias in some provisions.  For example, evidentiary requirements for different steps in the legalization process (e.g., continuous employment or proof of work requirements) may put women who work at home at a disadvantage. Similarly, the merit-based point system may not offer realistic avenues for immigration for caregivers or women from countries with few opportunities for human-capital acquisition. As the bill continues to be debated, these issues cannot be overlooked if achieving greater gender equality is a goal.

Photo Courtesy of Ryan Rodrick Beiler / Shutterstock.com

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  • Garrett White

    Interesting. But I would say that what is beneficial for the nation – rather than what is beneficial for women – should be the aim of immigration policy. The article presumes that equality of outcome (in gender terms) should be a goal of our immigration law. I wonder why this is to be presumed. The acquisition of smart, well educated, high skilled persons (whether men or women) who can contribute to society immediately is of rather more importance, I believe.

    Also some things cited as barriers to women more than men are not so. An EAD which takes a long time to be issued and received would likely affect a man more than a woman, on the grounds that a female domestic employee is more likely to be given a pass by her employer when the EAD does not arrive on time, that would a man who is employed as an engineer at Google. As well, continuous employment requirements only relate to employment on non-immigrant statuses and to the two year period preceding the filing of a special immigrant religious worker petition. These provisions affect men and women equally.

  • Mary Ellen Burns

    @ Garrett White: The article refers to continuous employment requirements in the current immigration reform bill before the Senate. The bill creates an “RPI” status of six year duration, renewable once, which in theory also would allow for application for legal permanent residence after 10 years and eventually citizenship. The requirements for RPI renewal and adjustment of status from RPI to legal permanent residence include continuous employment and minimum income levels.

    I find your juxtaposition of what is beneficial for the nation vs. what is beneficial to women curious. Biases in the listing of high-demand jobs may result in shortages of workers for the omitted jobs, itself harmful to the nation, (Check the US birth rate vs. retirement demographics. We are going to need to fill positions outside the high-tech, high-education sector with immigrants in the very near future.) Additionally, if women are disproportionately reliant on male relatives to petition for them, and if the VAWA process, because of a slow processing time for EADs, leaves women economically dependent on their abusers (I realize men can utilize the VAWA process but the majority of VAWA self-petitioners are women), this is bad not just for them, but for their children. Many of those children are US citizens. This is not beneficial for the nation.

    • Garrett White

      Ah! If the article is referring to the continuous employment requirements of S.744 R.P.I status, then that is problematic and seems unwieldy, although I would not suppose there is any significant disparate impact on men and women.

      The bill goes a long way toward allowing for the immigration lower skilled people, such as through merit based track II, blue cards, and the W visa. These people contribute, certainly, but I see no way they can contribute equally to the economic growth of the nation as immigrants who bring high levels of human capital. Good research in science/engineering (for example) provides benefits far beyond the physical labor of that researcher through the contribution of ideas and technologies with wide-reaching effects. A caregiver may provide comfort to one, two, or three people perhaps, but cannot affect the lives of thousands or millions. In our current immigration system only 14% of all immigrants are employment-based, and half of those are dependents! So that is 7% of the total. Of that 7%, maybe half are first or second preference, which amounts to 3.5% of the total. In making immigration policy, I hope we keep our eye on the really big picture. In the world as it is now, it is a buyer’s market for talent. If we don’t welcome the very high-skilled immigrants, Europe will, or Canada, or Australia. Even China and India are reclaiming their own. We are in a race with the world. Are we ready to win?

      About VAWA: I hope EADs can be processed more expeditiously, for sure. But there are alot of resources out there for the support of battered women. This will minimize the length of time they are dependent on the abuser. A truly sad situation.

  • Wolfgang Buchmaier

    This is preposterous! Being a nurse is not necessarily elusive for women but is one of the few jobs given statutory immigrant priority. Most of my employment based non-immigrants are women in recent years and I love it as they are not treted by the law as potential terrorists with all the additinal questions men have to answers about all the schools they attenden, all associations, organizations, and clubs they are/were memebers or they support/ed, all the places they have taveled to and all the employers supervisors they had all life.

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