Abstract

Excerpted From: Veronica Tobar Thronson, The Derivative Dilemma: The Gendered Role of Dependency in Immigration Law, 28 University of Pennsylvania Journal of Law and Social Change 147 (2025) (233 Footnotes) (Full Document)

Over more than two decades of practicing law, hundreds of clients have told me reasons why they stayed in abusive relationships. Not surprisingly to an immigration attorney, the main reason I hear is fear of immigration consequences. U.S. immigration law creates power imbalances within families based on immigration status. Despite statutory provisions that seek to ameliorate some of the worst instances of this issue through protections for battered immigrant women, women too often remain in abusive relationships because of misunderstanding or fear of what would happen to their immigration status if they left. Immigrant women hear from friends and acquaintances that legal systems will prefer and protect U.S. citizens over abused immigrant spouses, and they hear anecdotes about immigrant women losing custody of their children to U.S. citizen husbands. With these entrenched narratives stubbornly resisting correction, it is no wonder that immigrants, in particular women, are leery of leaving relationships when their immigration status is linked to that of another. In part, such narratives persist because U.S. immigration law remains highly gendered and represses women in ways that are more deeply ingrained in the law and apparent to migrant women. The immigration law that they experience firsthand reinforces gendered power imbalances, undermining attempts to convince women that the narrow exceptions to this overall scheme are real.

Moreover, migrant women often are actually dependent on their husbands for immigration status purposes yet do not meet the threshold for the most common forms of protection, such as those who are not a “battered” spouse but rather just a person whose marriage is ending due to incompatibility, or another reason not related to abuse. These women similarly fear, appropriately, that U.S. legal systems will favor their U.S. citizen spouses and often feel forced to remain in dead marriages for the sake of immigration status and their children. And even for those in happier marriages, the role of “dependent” that is forced upon women for immigration status purposes comes with constraints that can be stifling and rob women of opportunities to develop their own ambitions and use their own talents.

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.

Millions of people come to the United States every year under many different immigrant and nonimmigrant provisions. Some have been petitioned for by a qualifying family member such as a spouse, parent, or adult son or daughter who already have lawful permanent status or citizenship in the United States. Others come because they are permitted to accompany a spouse who has been offered employment in the United States or is the beneficiary of a family-sponsored petition. Some of these derivative family members expect to live in the United States permanently, while others are here for limited periods of time. In both instances, however, one person's status can be entirely dependent on another's in a manner that extends far beyond the point of admission. Historical forms of oppression of women such as coverture, where upon marriage, a wife's existence was consolidated with that of her husband, have strong echoes in these aspects of current U.S. immigration law. Coverture meant a woman's legal identity was subordinated to that of her husband, her property became the husband's property, and her dealings with the world were subject to her husband's control. Immigration law provisions impose similar constraints that make a woman dependent on her husband, impose limits on her activities that do not apply to her husband, and bar her from pursuing her own opportunities for growth and independence.

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.

In analyzing the derivative status and its implications for women, in Part I, I look at the role of family in the immigrant context, describing generally the dependency that exists within these relationships and focusing in particular on the impact of conditional status on foreign spouses of U.S. citizens or lawful permanent residents. In Part II, I then look at the role of family relationships in the nonimmigrant context and highlight as examples the limitations that are placed on dependents who come to the United States as spouses of foreign students and foreign workers. In Part III, I examine the heightened importance of relationships in the context of derivative immigration status. Part IV examines work that has been done to explore gender inequality in particular aspects of immigration law, revealing a gap in analysis as it relates to derivative status. Finally, Part V synthesizes the groundwork above to critique the limitations that derivative status imposes on spouses, the lack of durability that often attends derivative status, the conditionality of such statuses, and the creation of unbalanced incentives and protections in relationships.

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.

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Current immigration law provides U.S. citizens and lawful permanent residents control over the immigration status of their immigrant spouses. If her husband refuses to even initiate the petition process, the immigrant spouse is out of luck, as she is not able to force him to petition for her. Battered spouses have a “self-petition” remedy, provided they are able to show battery or extreme cruelty. However, immigrant spouses whose marriages are just not viable lack a remedy that would help them remain in the United States legally.

Legal barriers to derivative spouses of immigrants and nonimmigrants contribute to gender inequality. The need for immigration reform that removes old notions of coverture and inequality is now more crucial than ever.

Clinical Professor of Law and Director, Immigration Law Clinic, Michigan State University College of Law.