[Blogger's note: Once again the prolific and ever lucid Careen Shannon offers fresh insights on another facet of our dysfunctional immigration system. Today, she shows why gender bias taints America's immigration system, and what should be done to eliminate structural bias as part of comprehensive immigration reform.]

Immigration Reform Must Redress the Current Law’s Gender Biases

by Careen Shannon

As 2013 comes to a close, we are no closer to comprehensive immigration reform (CIR) than we were when a newly elected President Obama optimistically promised that such reform would occur during his first year in office. Advocates for immigrants have not lost hope, but it seems clear that if and when reform comes, it is unlikely to resemble the compromise hammered out in the Senate’s bipartisan comprehensive immigration reform bill (S. 744). This does, however, give women’s rights’ advocates an opportunity to look at the ways in which both our nation’s current immigration system, and the reforms to that system that the Senate incorporated into its bill, fail to adequately address the special needs of immigrant women and their families. Maybe there is still hope that we can get it right.

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.

Family-Based Immigration
Most people who immigrate to the United States do so on the basis of family ties. In Fiscal Year (FY) 2012, more than 1,000,000 people immigrated lawfully to the United States, and nearly 66 percent of them did so based on a family relationship with a U.S. citizen or lawful permanent resident. There is a notable gender imbalance, however, with approximately 70 percent of immigrant women (compared to 61 percent of men) obtaining lawful status by qualifying for family-based immigrant visas, according to government data.

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.

Employment-Based Immigration
Foreign nationals can also immigrate to the United States, or live here lawfully on a temporary basis, if a U.S. employer hires them and sponsors them for an employment-based visa. Here, there is an assumption that men are the breadwinners and women are dependents.

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.

Asylum & VAWA
When it comes to asylum, which can be granted to foreign nationals who have a well-founded fear of persecution in their home countries, women often have a harder time qualifying than men. Women are often not recognized as independent political actors, and thus political activities which have subjected them to persecution are often dismissed. Harms that are unique to women—including female genital mutilation, gender-based violence, forced marriage and honor killings—are often similarly rejected as constituting persecution.

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.

How the Senate Bill Would Have Helped Immigrant Women
So will immigration reform improve prospects for immigrant women and their children? There are a number of provisions in the CIR bill that passed the Senate (and in a similar House bill, H.R. 15, which was introduced by House Democrats in October) that would make it easier for undocumented women to legalize their status. For example, while the normal path to permanent residence under the Senate’s proposal would require applicants to be regularly employed, there would be waivers available that would benefit some women (such as those who are pregnant, or who serve as the primary caregivers to minor children).

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.

How the Senate Bill Failed to Redress Existing Gender Inequities
But there is much in the Senate bill that would be harmful to women, and these shortfalls should be addressed in any new reform efforts. For example, the requirement for an undocumented immigrant to document employment in order to maintain lawful status would create special barriers for immigrant women, who overwhelmingly work in the informal economy and would be hard-pressed to provide such evidence.

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.

Looking Forward
Immigration reform will not succeed if it fails in its obligation to protect women, who constitute 51.1 percent of the foreign-born population in the United States, or if fails to bring immigrant children into the mainstream. Once our dysfunctional Congress gets back to actually doing its job—to actually governing—immigration reform needs to find its way back onto the legislative agenda. When it does so, the needs of women and children should be specifically addressed if immigration reform is to have any real meaning.