The Golden Cage: How Immigration Law Turns Foreign Women Into Involuntary Housewives

• Publication year: 2008
• Citation: Vol. 31 No. 04

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 4SUMMER 2008

COMMENTS

The Golden Cage: How Immigration Law Turns Foreign Women into Involuntary Housewives

Magdalena Bragun(fn*)

I. Introduction

Imagine that you are moving to a foreign country with your spouse. After you arrive, it turns out that your immigration status makes you ineligible for a work permit, and as a consequence, you cannot get a credit card, or open a bank account, or rent an apartment, or take a student loan, or get a safety deposit box, or do countless other things that make it possible to function in modern American society. Imagine that five years later you are still waiting for your employment authorization, and you can only hope that your spouse will be kind enough to keep providing food and shelter to you, as you are not allowed to provide it yourself. Welcome to my world.

Like hundreds of thousands of other women, I came to the United States as a spouse of a foreign professional and immediately became trapped by a law prohibiting individuals like me from working. Although I didn't know it then, a single-sentence regulation(fn1) would completely strip me of my independence for years to come. The current law differentiates greatly between the rights of foreign professionals,(fn2) who hold H visas, and the rights of their spouses, who hold H-4 visas.(fn3) Even though the foreign professionals and the spouses are both granted legal immigration status by the government, only the professional spouses enjoy the right to lawful employment. This, in turn, enables the professional spouses to obtain social security coverage, bank accounts, credit history, and other privileges, while their wives(fn4)-treated by law as dependents- are denied the right to work and consequently deprived of the ability to function in society. Thus, thousands of women(fn5) are turned into involuntary housewives every year, often without knowing that their fate is sealed for an indefinite number of years.

Being unable to work makes America seem like a golden cage: even though you live in a country of opportunities, most of them are beyond your reach. Like a bird in a cage, you are allowed to stay in the United States but cannot do much more than that. The consequences of such circumstances are often tragic because many men abuse the power given to them by the law: some women get only weekly allowances for food; others are forbidden from calling their families or taking English classes; and still others become victims of domestic violence.(fn6) Depending on their husbands for absolutely everything, including the right to remain in the United States, many women are forced to stay in marriages they desperately need to escape.(fn7) This problem is not marginal-every year, approximately 70,000 newcomers become trapped in their golden cages under the current law.(fn8)

I speak for thousands of women who have no voice due to their political nonexistence and their consequent inability to ask for what is considered a basic human right-the right to be self-sufficient, otherwise known as the right to work.(fn9) I will argue that for equitable, as well as economic reasons, spouses of foreign professionals should be allowed to accept employment when they arrive in the United States.

This Comment begins with a presentation of the general principles of immigration law, introducing the reader to concepts such as immigrant and nonimmigrant status, derivative status, and adjustment of status. Part III offers a more detailed presentation of the H status, emphasizing H-1B classification and describing specific regulations that are pertinent to the subsequent discussion of the spousal employment authorization problem. Part IV presents five arguments why spouses of foreign professionals should be allowed to work, considering issues such as spousal dependency, equal treatment, the competitiveness of the United States in the ' global search for talent, and tax benefits.

II. General Immigration Rules Governing H Visa Holders

This Part discusses selected immigration law concepts and provides background information about the immigration status of foreigners who hold H visas. First, it presents basic information about the overall structure of immigration law. Then, it introduces the most important differences between immigrant and nonimmigrant status and considers certain restrictions imposed on nonimmigrants, using H visa status as an example. Finally, it discusses the derivative nature of H-4 status and presents the issues related to adjustment of status to Legal Permanent Resident.

A. Sources of Law Governing H Visa Holders

The primary source of immigration law is the Immigration and Nationality Act of 1952 (INA), which is codified mainly in Title 8 of the U.S. Code.(fn10) INA is implemented through numerous regulations compiled in the Code of Federal Regulations, which constitutes the second major source of immigration law.(fn11) The third source of law consists of judicial and administrative decisions, which often help to clarify the meaning of the regulations.(fn12)

In analyzing the employment problems faced by H-4 visa holders, this Comment will focus on the first two sources of law, namely, the statutes and regulations. While case law is usually crucial in interpreting immigration regulations,(fn13) it is unlikely to play a part in solving the H-4 employment prohibition problem because there is no case law that deals directly or indirectly with this particular employment prohibition. In this situation, the regulation at hand is not likely to be judicially modified for two reasons. First, any challenge as to the meaning of the regulation would likely be summarily dismissed because the language of the regulation is clear and its meaning is practically undisputable: "Neither the spouse nor a child of the beneficiary may accept employment unless he or she is the beneficiary of an approved petition filed in his or her behalf and has been granted a nonimmigrant classification authorizing his or her employment."(fn14) In other words, unless an H-4 holder obtains her own employment visa, she is not allowed to work.(fn15) Even if a suit challenging the validity of this regulation reached the court, granting employment rights to dependent spouses would require a judge to completely contradict the language of the Code,(fn16) which would virtually guarantee a reversal on appeal.(fn17) Second, Congress has demonstrated recently that it is the legislature's prerogative to rewrite regulations prohibiting nonimmigrant employment.(fn18) Specifically, in 2002, Congress enacted a statute that directly repealed a virtually identical regulation pertaining to a different class of spouses, L-2 holders.(fn19) This history suggests that if the regulation at hand is to be modified, it will be modified by Congress, not the courts.

What makes any potential challenge even more difficult is that there are very few treatises or law review articles that deal with the H-4 status and its implications.(fn20) Therefore, in light of a paucity of case law and secondary sources, this Comment relies primarily on an analysis of comparable statutes and regulations in arguing that H-4 visa holders should be granted employment privileges.

B. Immigrant and Nonimmigrant Status

INA divides all foreigners(fn21) entering the United States into two major categories, immigrants and nonimmigrants.(fn22) In general, those who hold immigrant status are allowed to permanently stay in the United States and enjoy many of the same rights and privileges as U.S. citizens.(fn23) Foreign nationals in the immigrant class are commonly referred to as "green card holders"(fn24) and are afforded the opportunity to become U.S. citizens upon meeting certain criteria.(fn25) INA does not provide a positive definition of the immigrant class; instead, it broadly states that all aliens who do not fall into the nonimmigrant class are considered immigrants.(fn26)

Nonimmigrants are aliens entering the country for a temporary stay authorized by one of the nonimmigrant classifications enumerated in 8 U.S.C. § 1101(a)(15).(fn27) Nonimmigrant status differs from immigrant status in two ways: (1) nonimmigrants have a limited range of activities in which they may engage, and (2) nonimmigrants may remain in the United States for a limited time only.(fn28) Both types of restrictions, considered in turn below, are related to the nonimmigrant classification, or status,(fn29) of a given alien.

Depending on the status of a particular nonimmigrant, his or her involvement in certain activities, such as employment, is restricted to a varying extent.(fn30) For example, H-4 visa holders are prohibited from engaging in any kind of employment in the United States.(fn31) In contrast, spouses of exchange visitors may apply for work authorization as long as "the income from the spouse's or dependent's employment is used to support the family's customary recreational and cultural activities and related travel, among other things."(fn32) Further, the spouses of intracom-pany transferees (L visa holders) or treaty investors (E visa holders) may freely apply for employment authorization.(fn33)

The law also restricts the amount of time that a nonimmigrant may legally spend in the United States.(fn34) The maximum allowable time differs for each status, ranging from as little as one year for some...