Veronica Thronson on "The Derivative Dilemma: The Gendered Role of Dependency in Immigration Law"

Veronica Thronson has published "The Derivative Dilemma: The Gendered Role of Dependency in Immigration Law" in 28 U. Pa. J. L. & Soc. Change 147. The introduction is excerpted below: 

* * *  U.S. immigration law implements “derivative” status in a manner that creates hierarchies that enable the exploitation and the imposition of constraints upon migrant women. Derivative provisions in immigration law, those in which one person’s immigration status is linked and subordinated to another’s through a familial relationship, create situations of fragility and dependency that have major implications for those relegated to dependent status. This is especially true for migrant women, as the hierarchies of immigration law overwhelmingly reinforce other gender-based societal hierarchies and patterns of discrimination, perpetuating these not just in fact but with the imprimatur of law.

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Although ostensibly gender neutral, in reality, the applications and consequences of derivative provisions in U.S. immigration law are quite gendered, as is true in other aspects of immigration law. As for derivative provisions, in the context of employment-based visas for nonimmigrants, noncitizen workers who are principal visa holders are overwhelmingly male, while women are more often derivative spouses and thus vulnerable. As this article explains, the status of a wife in this context is dependent on her husband on two fronts: on her husband’s visa status as well as the continuity of her legal relationship to her husband, who is the principal visa holder. First, if for any reason the principal visa holder loses his visa, a derivative spouse’s lawful status also ends. This creates the necessity and incentive for wives to subordinate their own ambitions to advance those of their husbands. Limits on the activities of derivatives further channel wives into traditional, gendered support roles. Second, the lawful status of derivative wives ends upon the termination of the underlying relationship. This means that after a divorce, the derivative former spouse will lose her status and often will not have other viable means to remain in the United States. This is true even as the principal spouse, and importantly any children of the couple, generally will have a continuing, unaltered ability to remain lawfully in the United States.

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Despite progress in remedying the exploitation of women through the immigration system, much more needs to be done to ensure that the U.S. immigration system is an equal one and that gender concerns extend not just to those who suffer domestic violence. The systemic inequalities embedded in the immigration system, despite their deep roots and pervasiveness, can, in some instances, be resolved with simple administrative adjustments. Other fixes will require statutory reform, which has been elusive in immigration law for decades. With that said, efforts to address issues of domestic violence and gender have proven virtually the only front in which progressive immigration reform has been legislatively achieved. Whether by administrative action or legislation, fixes will require political will to recognize and address the barriers that women face as they continue to suffer the consequences of antiquated, gendered immigration laws.