Bride and Prejudice: How U.S. Immigration Law Discriminates Against Spousal Visa Holders

Each year, several thousand women immigrate to the United States in their capacity as spouses, only to find their rights compromised by the constraints of their visa status. When a wife enters the United States on a dependent spouse visa, she enters at the wish of her husband. Until the day she is eligible for a green card, her dependent immigration status allows her husband to control her ability to live in the United States and all rights that stem from that status. The inherent power differential within these relationships resembles those experienced by married women generations earlier, who relinquished control of their legal personhood under the laws of coverture. The mechanism of coverture, which extinguished a married woman’s independent identity in the eyes of the law, had far-reaching effects, including giving a male head of household the right to determine his family’s domicile. In spite of reforms that have attempted to address antiquated gender norms and make immigration laws “gender neutral,” most spousal immigrants are still female, and the historical precedent of coverture remains evident in U.S. immigration laws affecting the family, including dependent spouse visa provisions. This article examines the various ways U.S. immigration regulations perpetuate the disparate treatment of dependent H-4 visa holders. The dependent spouse visa category imposes restrictions on the ability of these women to control their immigration status, work outside the home, obtain a divorce, retain † J.D. American University Washington College of Law, Clinical Teaching Fellow, University of Baltimore School of Law. This article benefitted from the feedback of participants at the Hofstra Immigration Law Workshop, AALS Clinical Writing Workshop, and the Albany Law School Scholarship and Teaching Development Workshop. I am especially grateful to Kerry Abrams, Michele Alexandre, Patience Crowder, Gilda Daniels, Leigh Goodmark, Cassandra Havard, Elizabeth Keyes, Margaret Johnson, Jaime Lee, Audrey McFarlane, Odeana Neal, and Erika Wilson for their feedback at critical stages of this article’s development, and to Lauren Harper, whose support and encouragement I could never do without. Thanks also to Sophie Le for her research assistance, and to the editorial staff of the Berkeley Journal of Gender, Law & Justice for their astute comments and suggestions. 11 BRIDE AND PREJUDICE 29-1 (DO NOT DELETE) 4/1/2014 5:42 PM 26 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE custody of their children, and escape domestic violence. In spite of compelling evidence that the existing visa hierarchy fosters economic and legal dependency, and has devastating consequences for the day-to-day lives of H-4 spouses, these regulations have not been subject to any meaningful reform. To the extent that legislation has created meaningful forms of immigration relief for immigrant women, these provisions primarily address the situation of victims of domestic violence. Not only are most H-4 visa holders not eligible for these forms of relief on account of their particular visa status, but the current system also fails to address inherent inequity in the law that facilitates domestic abuse and systemically subordinates women. Immigration laws shifted from family-based and labor-based immigration without concern for the rights of trailing spouses of skilled immigrants, allowing H-4 visa holders to fall through the cracks of immigration reform. This article posits that such reform should provide meaningful relief for spousal visa holders, and should address the longstanding inequities between husbands and wives that the current law perpetuates. True reform would not only contemplate H-4 visa holders as potential victims of domestic violence, but rather, would adopt more expansive rules that do not perpetuate the subordination of immigrant spouses within families and society at large. 11 BRIDE AND PREJUDICE 29-1 (DO NOT DELETE) 4/1/2014 5:42 PM BRIDE AND PREJUDICE 27 ABSTRACT 25 INTRODUCTION 28 I.DEPENDENT VISAS AS A RELIC OF COVERTURE 31 A. A History of Spousal Visas 31 B. The H-1B and H-4 Visa Programs 32 II.COVERTURE AS APPLIED TO THE MODERN-DAY SPOUSAL IMMIGRANT ......... 35 A. Coverture and Family Immigration 36 B. Coverture and Women’s Labor 39 C. Coverture and Women’s Rights in Divorce and Custody 25 INTRODUCTION 28 I.DEPENDENT VISAS AS A RELIC OF COVERTURE 31 A. A History of Spousal Visas 31 B. The H-1B and H-4 Visa Programs 32 II.COVERTURE AS APPLIED TO THE MODERN-DAY SPOUSAL IMMIGRANT ......... 35 A. Coverture and Family Immigration 36 B. Coverture and Women’s Labor 39 C. Coverture and Women’s Rights in Divorce and Custody Proceedings 42 1. Divorce 43 2. Child Custody 46 D. Coverture and Domestic Violence 49 III.“UNCOVERED” WOMEN AS VICTIMS 52 A. Passing Over Immigrant Women’s Rights as an Area of Reform ... 52 B. State “Covering” of Women as Battered Spouses 55 1. The Violence Against Women Act 56 2. U Visa 58 3. Limitations on Present Forms of Relief 60 IV.SYSTEMIC RESPONSES TO PROMOTE EQUITABLE RIGHTS FOR DEPENDENT VISA HOLDERS 60 A. The Unique Position of H-4 Visa Holders 60 B. Short-Term Solutions 62 1. Providing Work Authorization to Dependent Visa Holders ...... 62 2. Requiring U.S. Consular Officers to Give Dependent Visa Holders IMBRA-Style Advisories 65 3. Creating a Self-Petition Process Based on the Structure of VAWA 66 4. Reforming Rules Governing Access to Documents and Clarifying the Attorney-Client Relationship 67 C. Independent Status for Spouses Without Victimhood: A LongTerm Solution With Broader Implications for the Rights of Immigrant Women 68 CONCLUSION 70 11 BRIDE AND PREJUDICE 29-1 (DO NOT DELETE) 4/1/2014 5:42 PM 28 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE