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Divorce on H4 visa can go completely downhill for dependent women who are unfamiliar with their new country.
In 2017, my article Wives On H4 Visa – How Do You Deal With The Depression That Dependency Causes? was published here. A Seattle based lawyer read it and contacted me to become an expert witness to testify in the divorce case of her Indian origin client.
I bring you this case study to illustrate the problems and perils of life not only on the H4 visa but also the EAD. As it turns out, the EAD solves some problems, but not for all. Not equally.
*Names changed to protect the identity of the individuals.
From Nina’s family’s point of view her life was ‘settled.’ She had been married and sent off to Seattle, America, and the couple had a baby. But then, all that glitters is not gold. Nina had been diagnosed with depression and was on medication. The details of her case made it evident that there was so much unexplored in relation to what was happening to those on the H4 visa, some of whom were now receiving the EAD (Employment Authorization Document).
Nina’s negotiating power within the marriage had not increased with an EAD, and it would not until she got a job, brought in money, and healed from her depression. With a degree from India, her chances for employment were low and therefore she was headed for a divorce.
In Nina’s case, the power balance tipped in favour of the husband as the person earning, but they had had a child recently and were now on the path of a custody battle as well.
Nina’s attorney contacted me after reading my article on wives on the H4 Visa. This had primarily focused on how the power balance in a couple with a wife on the H4 visa made her completely dependent on her husband, crippling her self-esteem and sending her into a deep depression.
Nina’s attorney wanted to ask me more about the depression connected with being on an H4 visa. When I decided to testify, we did not know, of course, that Nina would lose custody of her four-year old child. An unthinkable turn of events for numerous Indian women.
There were several problems with Nina’s marriage, but few can be articulated if one did not access the language of feminism and equality within marriage. The language Nina used (in her quiet confident voice that sounded on my phone), instead, was simply that it was a breach of trust. Of the several things her husband had done, these pained her the most:
(1) curtailing her financial freedom to the point that every expense had to be justified
(2) fixing cameras all over the house on the pretext of watching their child but monitoring all her activities
(3) Tracking and recording her Facebook activity to accuse her later of this and that
(4) Accusing her of watching too much TV and being a slacker.
Simply put, he had been too controlling.
To my mind, watching too much TV and disinterest in learning car-driving are classic symptoms of the H4 visa situation. With no outside life, no job, few friends, and neighbors who do not necessarily socialize, TV and internet are the only things a spouse on the H4 can do! This cannot be an accusation when one is caring for the child all by oneself.
Attached to a child that needs constant attention, sleepless, and with zero adult time, TV is often the only me-time for young mothers.
Sunetra, another new mom there also on an H4 visa, says that in the first year of caring for her velcro-baby, she survived only because she got a TV installed in the bedroom and watched movies with muted settings, subtitles on. No wonder, then, that in the famous Australian dramedy on early motherhood, The Let Down, the protagonist makes a strong argument for escaping into quality Danish drama and efficient broadband! When there is no job, there is no motivation to learn car-driving.
Nina’s husband had raised two other objections. She could not feed their child pasta, only Indian food. And, she had to put the baby to sleep in another room.
Both these seem trivial.
The first one is unacceptable because kids imitate other kids. If you live in the US, your kid is bound to like a few things you never had in your childhood. Plus, sometimes any food is better than no food. Secondly, hundreds of Indian immigrant parents in the USA retain ways of child-rearing that they subconsciously learnt from their parents. In fact, it is suspected many American parents too co-sleep with their children but do not admit to doing it. But differences in parenting styles makes a justified case for divorce in the west—it is likely that Nina’s husband used it as a tactic to procure divorce.
Nina did not want a divorce; she did not want to break the marriage. But she was hurt by her husband’s breach of trust and was angry at his inability to understand her position.
Sometimes, young mothers need time off from jobs and job search. But husbands can think that their wives are unable to procure a job on the EAD because they are incapable of doing so. The truth is that only half the number of those with EAD have been able to secure jobs, a fact that has emerged on many H4 visa discussion forums.
Those in non-STEM professions have had little success, according to one case in a study released by SAAPRI. Nina had a masters in HR, neither entirely IT-based nor outside of it.
Since Indians are not absorbed into non-IT industries regularly, employers have a distrust of Indian educational degrees. Also, USA has a different way of doing things, which requires obtaining a degree in the country to procure a job. And job placements are so tied to college degrees that it is often impossible to procure jobs outside of the college placement cell.
But husbands who force their wives to work can rarely comprehend the gravity of this because they never face these obstacles themselves. Nina’s husband, at one point of time, wanted her to work as a solution for her depression. Just any work, he insisted. She ended up as a janitor in a restaurant that initially promised her a server’s position. She did not want to work in these positions having obtained a master’s degree—they felt demeaning.
US lawyers have no idea of Indian cultural practices
Lawyers and the court system in the USA do not know much about situations faced by immigrant families. They cannot understand or be responsive to Indian cultural practices and its nuances, although in theory, they must consult the law books of India and USA when judging cases involving Indian Americans.
US or Indian govts not sensitive to needs of wives facing divorce on H4 visa
The classic case of Neerja Saraph Vs. Jayant Saraph 1994 shows just this: divorce on H4 visa was granted through ex-parte because the wife could not appear at court.
In many cases, wives on H4 with no income had no funds to book tickets to travel back and forth to the USA to attend court proceedings—the Indian government does not recognize such divorces anymore to help such women.
US legal system clueless about Indian women’s reality on H4 visa
When I was testifying on Zoom (thanks to COVID-19), I mentioned how getting degrees from the US was a point of contention in immigrant marriages because US education is expensive. Who pays for it, the wives’ parents or the husband was often an uneasy question.
Nina’s husband’s lawyer was taken aback and began questioning me if I knew this family personally—an expert witness must not know the family personally or the full details of the case. Little did he know that this question bugged almost all immigrant families with a spouse on H4 visa.
Women facing divorce on H4 visa unaware of legalities
Women who know the complexities of filing for divorce on H4 visa do what an acquaintance did. Jayashree took her child and flew to India on the pretext of a vacation and filed for a divorce from India. Indian courts are biased towards granting child custody to the mother, which worked in her favour. Unfortunately, Nina was caught unaware.
Nina needed a lawyer who could argue that co-sleeping with children was common in India—but she had an American lawyer. Her American lawyer, however, made several efforts to get experts who could make the culture argument, but there was no guarantee that it would be understood by the American court system.
My advice to Nina was that she consult South Asian Women’s organizations in her city to accentuate the culture argument, but Nina was distrusting of everybody, including her lawyer! She only trusted her parents, but knowing nothing of American culture, they were of no help in fighting the case. Distrust of everybody is another classic symptom of the H4 situation—the person has no acculturation and is unable to determine if she is being helped or hurt.
The husband tried to take advantage of Nina’s legal situation
When things went bad in the marriage, Nina and her husband started seeing a marriage counsellor. Unfortunately, the counsellor sided with the husband, did not reveal his plans of divorcing Nina, as she is required to, and acted with bias when she repeatedly advised Nina to visit India.
Nina refused to do so since her child was still young. Nina’s husband had not procured an Overseas Citizen of India (OCI) card or passport for the child to enable an India visit. His plan was that when Nina goes to India, he files for a divorce in the USA and that would make it very hard for Nina to come back, to fight the divorce case and the custody battle.
Nina’s refusal to go to India compelled her husband to file for divorce when she was in the USA. He had to move out and pay her maintenance.
US laws about child care worked against Nina
But during the divorce proceedings, a court-appointed official evaluated Nina and declared her an unfit mother.
Nina’s defense was that this evaluation was erroneous; she was a fit mother because the child had never suffered from even minor illnesses under her care; she could not have been doing more.
The questionnaire that this official brought in had yes-no questions. What America is aiming to eliminate through such questionnaires is the human error aspect in its child protective services system that fail children from parental abuse, as in the case of Gypsee Blanchard.
A lack of awareness of Indian culture
We could even argue that the questionnaire was culturally biased. Indian parents co-sleep with their children at the cost of the mother’s sleep. The level of sacrifice that Indian parents make throughout their child’s lives is unknown in American culture.
In sharp contrast, American children move out or live separately when they grow up—adulthood has initiation rites and is complete when one’s offspring is well-adjusted—procures job, marries etc. In India, on the other hand, children may never move out and are cared for by parents at different stages of life in different ways.
So, where India leans one way in parenting style, America leans to the other according to its own cultural norms. Each has advantages and disadvantages; neither is perfect.
The question of custody
Unfortunately, however, in Nina’s case, the questionnaire worked against her, especially when, as she told me “the judge was not listening carefully during trial.” Not surprising, as the judges fall back on the filed documents to speak to them.
Nina’s lawyers might have disproved she was depressed but there remained the matter of child custody. That is, Nina’s depression, whether from unemployment or from post-partum, were both extraneous and would rectify when her situation changed. So, how do US courts decide child custody?
My advice to Nina to secure more time with her child was that she must take up the two-year offer her husband had made.
Her husband’s offer was that he would seek a separation and not divorce her for two years, so that she could continue to stay on her spouse visa in the US. His condition, however, was that she had to obtain a degree and a job in that time and secure her future in the USA. After this, he would divorce her, she would be on an H1B visa and they would share the custody of their child.
But Nina was skeptical this would work given the uncertainties that H1B workers suffer from and her own experience with unemployment in the USA.
I felt that Nina was too protected by her parents to be living alone in the US with no familial support. Not all women are made the same, and if the men in our lives cannot understand this, what other meaning is there to a marriage?
In a time when American women are finding divorcing during COVID-19 very hard, a woman on H4 visa is twice as likely to feel nervous.
Nina’s question was, “Why can’t he come to India where both parents can work and have equal custody? Why do I need to re-educate myself?” But because the child is an American citizen, the court system was likely biased towards protecting an American citizen.
“Why is everyone asking me to adjust although he is such a bad person?” Nina’s exasperation resonates with so many women. Obviously, Nina’s husband did not want to head back to India. Why would he? Not when everything was working well for him! Since Nina and her husband could not come to a consensus, the divorce case became contested and went into trial.
What worked against Nina was also likely the Hague convention that India has not signed. What this means is that if one parent abducts their child across international borders, the child can be returned, and the parent prosecuted. If only the husband had allowed for an OCI card!
Nina could have taken the advice of the Ministry of External Affairs Booklet’s advice to go for an uncontested divorce. But she was too angry and upset for that. When I asked her if she would be alright if the judgment rules her child to stay in the US, she just said that she knew something good was going to happen. She just felt it strongly and that she would take a chance with the judge. This despite her own lawyer’s frustrated declaration that if she won, “it would be a miracle!”
My own advice to Nina was to consider the cultural context. For instance, if the case had been filed in India, her Indian lawyers would have advised her to file a 498A to get justice. Similarly, Nina had to do something about child custody that was US culture sensitive. She had to offer a win-win solution, so the courts perceived her as prioritizing her child’s well-being. Child welfare is of paramount importance at US courts. But Nina was adamant, she left it to chance. That is a mistake in the USA, where everything is planned, reasoned out and anticipated well-in-advance. Nina had to think through the worst-case scenario and move forward. Instead, she was optimistic and hopeful.
When the judgment ruled that the child stay with the father, Nina perceived it as harsh.
Nina’s husband is ordered to buy her tickets for her 2-3 visits per year until the child turns six.
At 12, the child can choose a parent.
Being on an H4 visa, Nina must now return to India as soon as the divorce formalities are through.
The tragedy of this case is that what caused Nina’s depression in the first place, is also the cause for her loss of child custody and her divorce—the H4 visa. Clearly, nobody showed Nina’s husband this article published on Women’s Web. Husbands do not necessarily understand what unemployment in a cold, rainy city and caring for a child 24/7 can feel like—that of course, is patriarchy for you.
Dr. Sushumna Kannan owns Writing in Gold, a Writing-Editing service business based in San Diego, USA. She is the author of Hinduism and Violence, forthcoming, 2021. Check out her other writings at sushumnakannan.weebly.com
Image source: a still from the film The Namesake
Sushumna Kannan has a PhD in Cultural Studies and works on topics in feminism and religion, postcolonial studies and South Asian history among others. She received the Bourse Mira fellowship by the French government in read more...
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