US immigration law contains gender biases against women

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    With immigration law, women aren’t quite equal to men. (Griselda Nevarez)

    Gender inequalities seep through immigration law in the United States, making women go through a different experience than men when attempting to gain a legal status in the U.S., a new study reveals.

    “Immigration law, which on its face appears gender neutral, actually contains gender biases that create barriers for many women trying to gain legalization within the current immigration system,” stated the authors of a study released last week by the Immigration Policy Center.

    Cecilia Menjivar — a professor at Arizona State University — and Olivia Salcido — a researcher who studies law, immigration and domestic violence — spent more than a decade researching the experiences of women and men who go through the legalization process. From 1998 to 2007, they conducted 51 in-depth interviews in Arizona with immigrants originally from Mexico, El Salvador, Guatemala and Honduras.

    The findings were surprising.

    “We found that even laws written specifically to protect women, such as the Violence Against Women Act (VAWA), continued to play out in practice along gender-biased lines,” Menjivar and Salcido wrote in the study.

    They also found that the U.S. immigration system is not designed to recognize immigrant women’s needs and circumstances. Additionally, they found that immigrant women are often presumed to be “dependents” while men are looked at as the primary breadwinners, which results in women and men having different experiences when they go through the legalization process.

    How gender shapes four avenues for legalization

    In their study, the authors highlighted how gender shapes four different avenues through which women seek a legal status in the U.S.: employment-based visas, family reunification, the asylum process and a VAWA visa.

    When it comes to applying for employment-based visas, many women, instead of applying as principle visa holders, rely on male relatives to petition for them to get such visas. This is because women often have domestic jobs, such as cleaning houses, that are not considered by U.S. immigration law as “high demand” jobs — a requirement to obtain an employment-based visa.

    In addition, more men apply as principal visa holders when they seek employment-based visas because they have more opportunities than women to earn college degrees and acquire skills in their native countries. But even when women are highly skilled, they still find it difficult to gain employment-based visas, the study revealed.

    Many women also rely on male relatives to petition for them through the family-based immigration process, which is the primary avenue through which women gain legal status in the U.S. Women rely on men because they are often seen as “dependents” even when they have jobs outside the home. Meanwhile, men are largely viewed as primary breadwinners and heads of households, making it easier and faster for them to gain legal status through family reunification.

    Another option is to seek a visa through political asylum. Here, women struggle to convince decision-makers that certain political actions and opinions establish a threat in their countries of origin. The authors of the study explained this, stating that a woman who fears persecution because of her engagement in political activities — activities defined by her gender, such as providing shelter for guerrillas — may find it more difficult to prove that it’s reasonable to fear persecution than it is for a male who has also engaged in “male-defined activities,” such as joining a guerrilla army.

    Many immigrant women also struggle to prove persecution even when they were politically persecuted and, as a result, targeted with death threats in their native countries. One problem that women run into is not keeping documents that would prove they went through potential dangers. Such was the case for Sara, an asylum seeker from El Salvador featured in the study. The request was denied because she and her husband didn’t keep the papers that showed the written death threats sent to them. But, the study states that even if the couple would have kept the documents, Sara would have still been denied asylum because the threats were directed at her husband — even though she was also at risk.

    Lastly, women also face obstacles when applying for protection under the Violence Against Women Act (VAWA), which allows immigrant women who are victims of domestic violence to self-petition or independently seek legal immigration status in the U.S. One obstacle women face is providing evidence, such as documents with their name and of the abuser, to prove they live with their abuser. This is a difficult requirement to meet if a woman’s abuser is the main breadwinner and the bills are all under his name.

    Address gender biases in immigration law through reform

    Menjivar and Salcido concluded their study calling for an immigration reform that includes a path to citizenship that is “open, affordable, and accessible to all immigrant women, including those whose work is unpaid (e.g., those in the care economy), and those employed in the informal economy.”

    They also called for a number of improvements that should be made to the legalization process, including adding more avenues for immigrant women to access the legalization process without having to rely on male relatives and on principal visa holders to petition on their behalf.

    Emily Butera, senior program officer for the Migrant Rights and Justice Program at the Women’s Refugee Commission, agreed on having an immigration reform that addresses the obstacles women face when they go through the legalization process in the U.S.

    “The political reality is that if we are going to have a serious national conversation about immigration reform, we have to talk about immigrant women,” Butera said in a conference call with reporters last week. “We’ve known that to be true for a long time now based on past experience, and the data that we have available to us.”

    She also noted that there are currently 5 million undocumented women who are living in the U.S. and could benefit from an immigration reform. She said that that statistic “tells us more than anything else that if we don’t talk about accounting for the needs and lived experiences of immigrant women in immigration reform, we’re going to be looking back on this immigration reform effort 10 years down the road and discover that we failed.”

    Gender biases women face in immigration law

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