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Foreign Policy In Focus » Article / Commentary

What Immigration Reform Means for Women

July 2, 2013 ·

Your guide to how the U.S. immigration system affects women differently from men--and how the Senate bill will change it.

immigration-reform-senate-bill-womens-rightsIn the summer of 2011, I visited a community organization in Georgia to hear the testimony of immigrant women who had been impacted by anti-immigrant legislation recently enacted in the state. As a social worker, I listened in horror as a counselor at a domestic violence service center noted a sharp decline in women coming to the center since the state had passed its draconian new anti-immigrant measures.

When I came home I called colleagues at programs in other states, and they confirmed that it was something they were noticing too. Immigrant victims of domestic violence were terrified of deportation and potentially being separated from their family, so they were not coming forward to report the abuse to the police or otherwise get help.  Immigrant women should not have to choose between suffering from abuse and facing separation from their families, yet because they are terrified of the very real threat of deportation or detention, many silently suffer.

This phenomenon is just one example of how the U.S. immigration system—and efforts to reform it—can impact women differently from men. While much of the U.S. immigration debate has centered on controversies over citizenship and “border security,” less attention has been paid to the enormous impact of immigration policies on women, who make up 51 percent of undocumented immigrants and face unique challenges as they try to make a living in a new country.

The Border Security, Economic Opportunity, and Immigration Modernization Act  (S.744) passed the Senate on June 27, 2013 with a vote of 68-32.  While the Senate’s immigration reform bill will make a difference in some key areas, it falls far short in others. As the bill moves on to the more conservative House, advocates are working to ensure that the issues facing immigrant women and families remain in the forefront.  Here are some of those major issues.

Workplace Inequality

Just like U.S.-born women, undocumented immigrant women face discrimination, long hours, and wage gaps on the job while they try to make ends meet for their families as the primary earner. Many came to the United States specifically to be breadwinners and send money back home.

Many undocumented immigrant women working in the so-called “informal” economy—as nannies and housekeepers, for example—are paid under the table, which makes regular paystubs or written proof of employment impossible to obtain. Others are working at home, caring for their own children and families.

This is problematic because any pathway to citizenship is likely to require applicants to show written proof of continuous employment before they are allowed to receive permanent residency status and eventual naturalization. For the roughly 50 percent of undocumented women who are working at home or raising families, this requirement becomes a barrier. Others are working in situations where asking the employer for documentation would lead to threats or unfair leverage over working conditions, precursors to exploitation and trafficking. Fortunately, the drafters of the immigration bill have included a provision that would allow for these workers to prove their employment history with sworn affidavits instead of pay stubs. For primary caregivers, women who are pregnant, seniors, and people with disabilities, the Senate bill added exceptions to the work requirement, much to the relief of family advocates.

Citizenship should not be tied to continuous employment, but if it is, it's critical that alternative methods of documentation, and exceptions for caregivers and the most vulnerable, remain acceptable for the pathway to citizenship, so that the contributions of caregivers are not devalued and women working in the informal economy are not left out.

Women in traditional workplaces face challenges as well. The electronic employment eligibility verification system known as “E-verify” is a special cause for concern. Women are more likely to experience errors in the E-verify process, particularly immigrant women, and face more barriers to correcting those errors. “E -Verify errors can result from 'name inconsistencies' on various authorizing documents," explains a policy brief from the National Immigration Law Center. "These name inconsistencies can result from name changes, most commonly because of marriage or divorce. Additionally, name inconsistencies can result from the use of surnames or other culturally defined name-use practices.”

Under the Senate bill, workers detected by the E-verify system would be immediately reported to DHS. And if a worker is unable to correct a mistaken notification in the short 10-day timeframe allotted, her employer will be forced to fire her, which can be the difference between economic devastation and making ends meet. While most immigrant worker advocates are opposed to the E-Verify program because of the potential for detrimental errors—as well as the undue burden it places on small employers like those who employ domestic workers—the proposal is not likely to disappear.

Family Separation and Unification

One of the cruelest aspects of current deportation policy is the ongoing separation of foreign-born parents from their U.S.-born children. Last December, ColorLines magazine reported that “between July 1, 2010, and Sept. 31, 2012, nearly 23 percent of all deportations—or, 204,810 deportations—were issued for parents with citizen children.”

Those children face numerous emotional and even cognitive disruptions following separation. The consequences, according to the American Psychological Association, are long lasting. “Children and adolescents whose parents are taken into immigration custody can suffer severe psychological distress, resulting in anxiety, loss of appetite, sleep disturbances, withdrawal, aggressive behavior and decline in educational achievement,” the APA notes. “Research even suggests that the longer the parent and child are separated, the greater the child’s symptoms of anxiety and depression become.”

Democratic Senator Al Franken introduced his HELP Separated Children Act as an amendment to the proposed immigration bill after a particularly traumatic worksite raid in his home state of Minnesota, which left several children without one or both of their parents, with no warning and no way to contact them. At least one child had an infant sibling at home. The HELP amendment, which has now been incorporated into the larger Senate bill, allows parents to make arrangements for care of their children and require federal authorities to consider the best interests of children when it comes to detention, release, and transfer decisions affecting their parents.

Immigrant families trying to legally bring their relatives to the United States face a related challenge. With 4 million people trapped in a legal backlog awaiting a decision on their immigration applications, their families are facing years of separation. While the Senate bill includes many steps to clear the backlog and make things move faster for those waiting to be reunited, some categories of family-based visas, like those for adult married children, have been eliminated to make way for “merit-based” visas.  

Since family-based visa programs are the primary avenues women use to earn legal status, replacing those programs with the “merit-based” system in the bill is another blow to women and families. The system, which offers “points” for applicants who meet certain criteria, heavily favors younger, educated, English-speaking immigrants. This puts people who have less opportunity for advancement in their home countries—notably women and people from poorer nations—at a disadvantage. Hawaii Democrat Mazie Hirono organized more than 20 cosponsors for an amendment to address this disparity by creating another merit category, but it was not incorporated into the final bill.

An analysis of the proposed merit-based system from the Immigration Policy Center made the case that even if points were awarded for primary caregivers, who are overwhelmingly women, “the maximum number of points available for primary caregivers is 10. If caregivers have to compete with applicants who have been employed in the labor market and can accumulate up to 40 points through different categories, the playing field for these women is anything but level.”

The analysis goes on to critique the point system’s shortsighted devaluation of home care and domestic work. “Immigrant women who perform their work in the domestic sphere help sustain the current workforce, raise the future workforce, care for the elderly and sick, and play a critical role in household well-being,” the center observes. “Their contributions to the economy are, therefore, not only immediate, but will also be felt in the future. In addition, unpaid health and childcare provided in the household largely by immigrant women contribute to the physical, cognitive, and emotional development of household members. Those contributions are instrumental not only in individual well-being, but also in the human development of the country.”

Although the immigration bill’s main backers in both parties seem to favor the merit-based approach, Hirono was successful in pushing through an amendment that authorizes a government study to examine its possible negative effects.

The families who have been most neglected by current policy are the ones headed by LGBT spouses. Up until the Supreme Court struck down the Defense of Marriage Act (DOMA) on June 26th, neither U.S. citizens nor legal permanent residents could sponsor the immigration petition of a same-sex foreign-born spouse. The debate about including LGBT equality in the bill was contentious, and families were heartbroken when an amendment to address this disparity was ultimately withdrawn from consideration. But only two days after the Supreme Court's DOMA ruling, a Florida couple became the first same-sex partners to have their marriage-based green card petition approved, pointing to the hope that LGBT families will be spared further discrimination in the bill.

Violence Against Women

Immigrant women face numerous barriers when it comes to escaping, reporting, and getting help when they face domestic violence, sexual assault, or human trafficking. In addition to the fears common to many women—that no one will believe them, that they were somehow to blame, that they will be economically vulnerable or even separated from their children—immigrant women also face the fear of deportation that comes with the decision to contact or cooperate with law enforcement.

Immigration relief is a key to freedom for survivors of these crimes. In 1994, Congress recognized this and created the Violence Against Women Act (VAWA), which among other things enabled abused immigrant spouses to self-petition for their own legal immigration status, thus eliminating their dependence on an abusive spouse to remain in the United States. In 2000, Congress again recognized the need to provide immigration relief for victims of serious crimes, including rape and human trafficking. The Trafficking Victims Protection Act (TVPA) established the “T” visa and the “U” visa, which allow survivors to receive immigration relief and eventually a green card if they cooperate with law enforcement and meet other legal parameters.

The U visa is a temporary nonimmigrant status that is available to victims of crimes that include rape, stalking, torture, trafficking, kidnapping, and involuntary servitude. There is currently an annual cap of 10,000 for these visas, and sadly we are reaching this cap every year, leaving approximately 1,200-1,300 people to wait precariously in limbo for the next window to apply.

U visas are critical for women. At my organization and at many others, individuals call or come in who have been severely exploited by their employers or defrauded by foreign labor contractors after spending their life savings or going into devastating debt, but their circumstances don’t meet the high standard for proving human trafficking. If what they went through isn’t classified as a qualifying crime for a U visa, we have to turn them away and refer them to employment justice organizations, most of whom are strapped for resources and often don’t have social service components.

The Senate bill would help exploited women by not only increasing the cap on U visas so that no one is left waiting, but also by adding serious violations that happen in the workplace, like exploitation and retaliation, to the list of crimes and violations for which a woman may be eligible for relief. This not only provides the security she needs to escape the situation and report the crime, it also sends a message to abusive employers and recruiters that these practices have been noted and are taken seriously by the U.S. government.

After an immigrant survivor of violence has left the abusive situation, whether it’s domestic violence in the home or human trafficking at her workplace, the role of the social and legal service providers is to apply for immigration relief, and help her find emotional and financial stability while she recovers. However, one serious obstacle that survivors frequently face is the inability to work legally in the United States while their visa application is pending. Sometimes the lack of financial resources, especially for women who left their home countries to provide for families left behind, is a factor in choosing to remain and suffer in abusive relationships.

Once a survivor is granted immigration relief and “certified” as a victim, she can obtain an employment authorization document (EAD). Even if she is granted a temporary status known as “continued presence” by an investigating law enforcement officer while her case is being investigated, she could be eligible for certification and an EAD.

One of our clients at my organization had six children, four of whom were in school. The other two were struggling to care for them while my client came to the United States to work as a nanny and send money home. Soon after arriving, she discovered that she had been tricked and was working long, difficult hours with no pay and was unable to leave the home. We helped her escape, and could offer her enough assistance to cover her most basic needs, but we didn’t have the funding to continue the remittances she had been sending home to keep her children fed, clothed, and schooled. Without employment authorization, she had to make a choice: take a risky black-market nanny job, or have her family suffer while she waited for a year for her visa.

The problem is not just on paper, but also in practice. Some law enforcement agents are reluctant (or refuse) to apply for immigration relief for victims, a critical failure that puts people in harm’s way and impedes the survivor’s ability to complete a visa application. But sometimes even completed T or U visa applications can take up to a year for DHS to process. The inability to work legally leaves survivors oftentimes unable to provide fully for themselves and their families, potentially putting them at risk for re-exploitation, or forcing them to return to an abusive partner.

While law enforcement agents dragging their feet on applications is an issue of long-term training, the hardship incurred by processing times was addressed in the bill. Senator Patrick Leahy (D-VT) introduced an amendment, now incorporated into the legislation, which would allow survivors to gain work authorization at least within six months after submitting an application for VAWA self-petitions, U visas, or T visas.  

Also, the Senate bill now contains provisions clarifying that domestic violence survivors can have access to public or assisted housing programs when they qualify for certain VAWA remedies.  As survivors often have to choose between remaining with an abuser or facing homelessness, the Senate bill offers critical protections for immigrant survivors fleeing violence.

Addressing Women’s Issues in Immigration Detention

Women detained in immigration facilities are at high risk for sexual abuse, and often don’t have adequate access to medical care, in particular gynecological care, or even proper hygiene.

An ACLU report that exposed a horrific pattern of sexual abuse in detention centers outlined the story of a young woman named Raquel, who began receiving death threats after her husband was murdered and she tried to investigate, forcing her to flee to the United States for safety. She was swept up by border control officers and detained in a facility in Texas. When an investigating officer determined that she had a credible case to pursue asylum, she was released on bond. It was during her transport to the airport that she was assaulted.

[The driver] … motioned for me to lay down on my back. I refused. When he saw that I wasn’t going to cooperate, he went to the back of the van. He pushed my things off the seat in the cage inside the van and gestured for me to get back in. I complied. He followed me into the van. I told him I would report him if he continued to touch me and he pushed me into the van. I was crying and I thought it was the end of my life. I thought he was going to kill me. I thought I should have stayed in my home country if my life was going to end like this because at least I would have had more time with my children. He got in the cage with me and started unzipping his pants and pulling off my clothes. He exposed himself to me. He was angry that I would not take off my clothes. I kept yelling, saying that if he didn’t stop I would tell someone.  He finally stopped, got back in the front of the van, and drove fast to the airport. When we got to the airport he opened the door and the cage. I jumped out and I started running. I ran into the airport and I was still crying.

The report from ACLU continues, “While centers in Texas resulted in the largest number of allegations, sexual abuse allegations have come from nearly every state that houses an immigration detention center.”  Since this case and many others were brought to national attention by the ACLU and the Women’s Refugee Commission, Immigration and Customs Enforcement (ICE) has begun making progress in addressing the problems, finding and helping the victims, and requiring detention facilities to abide by new national standards for care of detainees.

However, advocates for immigrant women insist that these are only steps. What is needed is a new frame on detention as a whole: can we prioritize alternatives to detention given the high risk of assault and mistreatment? Are there real safeguards in place to prevent victims of crime from being detained and thus re-victimized? Are there real safeguards in place to prevent assaults? Is there effective, and mandatory, training for officers and facility employees about how to respond to sexual assault?

For its part, the Senate bill added a measure to ensure that female officers are continuously present during transfer and transport of female detainees, and restricts enforcement actions in sensitive areas like schools, churches, and domestic violence shelters like those of my colleagues from Georgia. In addition to the important protections around children and parents put through by Senator Franken, the Senate bill added language about promoting alternatives to detention restrictions around solitary confinement, and protections for people with mental illnesses. While these will go a long way to solving some of the biggest crises that families face in enforcement, the last minute “border surge” amendment that was added to the bill will certainly be a step backward on the path to a more humane, and less militarized, U.S. policy around immigration.

Where We Go From Here

The current comprehensive immigration reform effort has better reflected the needs of women and families than any previous attempt, but there is a lot of room for progress.

Sadly, advocates expect that when the conservative House takes up the charge, much of the hard-won protections will be scrapped or made contingent on impossible triggers for border security. Even in the Senate bill, the final passage hinged on the last-minute “Corker-Hoeven amendment” which was essentially a replacement of the original bill, but with drastically militarized border and enforcement measures, which will continue to put families in danger. This kind of compromise occurring already in the Senate does not bode well for the future of the final legislation when it comes to the lives of women and families.

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