Making “Adversarial Legalism” the H-2 Way of Law

Under thequasi‐judicialstate:H‐1Bemployment rights in an era of judicial retrenchment

“…Although immployment scholars have examined the impact of immigration status on undocumented workers' rights, they have neglected to examine how federal court decisions that limit citizens' private enforcement regimes have also shaped migrants' rights. One exception to this neglect is my previous publication on foreign migrant agricultural workers' access to a private right of action under the INA from the 1980s until today (Clark, 2019). In 1984, when Mexican workers challenged early dismissal from Arizona citrus groves under federal H‐2 regulations in Nieto‐Santos v. Fletcher Farms (1984), the Ninth Circuit Court of Appeals denied jurisdiction on the grounds that the INA did not provide migrants a private right of action to enter federal court.…”

“…The proper forum for any claim was the administrative agency, the DOL, the Ninth Circuit ruled. In making this decision, the Circuit Court cited a four‐pronged test from the 1975 case Cort v. Ash that later circumscribed individual access to courts more generally (Clark, 2019; Staszak, 2016). Migrant labor activists subsequently struggled for almost 20 years to find a new pathway for migrant workers into federal courts independent of the DOL.…”

“…In 2002, Arriaga v. Florida Pacific Farms finally authorized migrants to file collective actions against their employers in federal court under the FLSA. Foreign agricultural workers have recuperated unpaid wages and liquidated damages under the FLSA in federal court as well as back pay authorized by the INA independent of DOL agency action ever since (Clark, 2019). 5…”