This Article argues that feminist and other critical legal theories can address the profound inequalities that immigrant workers face. Part I draws from a body of feminist, political, and social science theories regarding social reproduction to assess the situation of immigrant domestic workers and their recent efforts to claim inclusion in workplace laws and protections. It locates the increasingly carceral dynamics that are expressed in the law and in state infrastructure and continuously undermine immigrant women's economic and social stability, as explained in further detail in Parts L.A and I.B.2, infra. Unbeknownst to many, the present period is the most dangerous for an undocumented immigrant worker in history. Deportations have crescendoed to record highs after a decade-long investment in sophisticated detection, detention, and deportation apparatuses by two Presidential administrations. Conversely, statutory rights - e.g., the right to minimum and overtime wages, the right to organize, and the right to be free from sexual abuse or harassment-are largely unenforced as a result of ongoing contradictions in our labor and immigration laws, the currently irremediable power dynamics between non-citizen workers and their employers, and the low societal priority for allocating resources to combat these abuses."
Part II examines the importance of immigrant women workers in the United States and their disproportionate share in the "feminization" of low wage work at a time when society's critical social-reproductive work has been shifted to them. Over the past decade, immigrant women workers have organized state-by-state campaigns to improve the domestic work industry, and have steadily built political power by allying with labor unions. In 2013, intense lobbying by the same organizers brought about the first-ever inclusion of an immigrant visa for caregivers of the elderly and disabled in S.744, the last major immigration reform bill to pass the Senate. But those workers, who are predominantly in-home employees and overwhelmingly female, have been denied minimum wage and overtime protections for more than seventy-five years; newly enacted regulations to bring them within those protections were halted before they were to take effect in 2015, in a power play by the $90 billion caregiver industry. Employers today continue to marginalize, devalue, and capitalize upon the labor of immigrant women in ways similar to those previously used for women's labor in the nineteenth and twentieth centuries.
Part Ill analyzes the resurgent organizing of immigrant and minority caregivers nationwide for "rights, respect, and recognition," with the understanding that including immigrant women in the body politic is critical to challenging the increasingly harsh policies that impair their safety daily. A feminist practice supporting socially just laws and practices for "all" women cannot remain apathetic to the role of the state and its laws in subordinating entire populations of women in the workforce, or selectively support neoliberal policies such as proposals to import female immigrant caregivers from abroad simply because "they" can do this work for "us." To do so denies the status-, race-, class-, and gender-based devaluation of social reproductive work, with privileged U.S. women desiring the labor but not the lives of other women. Because our nation's immigration system is now inextricably bound up with carceral forces, including detention, deportation, and local law enforcement, feminist analysis must broaden its reach beyond traditional assumptions of citizenship and the legal status quo. While this Article is far from a comprehensive account of immigration status as a dimension of experience, by analyzing domestic workers and caregivers as a case study, I suggest a new role for feminist legal theory and critical legal studies to elevate the discourse surrounding immigrants' rights in future rounds of the immigration reform debate. Just as Sojourner Truth challenged women and men by asking, "And ain't I a woman?" to connect the abolitionist and feminist causes in 1851, we must today situate feminism to "include those that are not white and not privileged"15 and address issues of immigration and citizenship. Immigrant caregivers' growing campaign for "rights, respect and recognition" invite feminists to engage in a twenty-first century discussion about non-citizen women's rights.
Shirley Lin, 'And Ain't I a Woman?': Feminism, Immigrant Caregivers, and New Frontiers for Equality (2016). 39 Harv. J. of L. & Gender 67 (2016), https://digitalcommons.pace.edu/lawfaculty/1180/