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

Abstract

Foreign workers holding H‐1B visas gained recourse to federal employment rights under the Immigration & Nationality Act (INA) for the very first time when Congress passed the Immigration Act of 1990 (IMMACT90). This paper examines H‐1B employment rights enforcement under the INA as it has intersected with broader features of the American legal system: what political scientists call judicial retrenchment and the quasi‐judicial state. I first show how H‐1B rights, already limited by the domestic politics that shaped the IMMACT, became subject to judicial retrenchment when the federal courts confined H‐1B disputes under the INA to the quasi‐judicial state at the Department of Labor (DOL). I then use published data on DOL investigation outcomes, published and unpublished administrative case records, and judicial cases reviewing agency action to examine the extent to which and how H‐1B workers can use the quasi‐judicial state to solve workplace problems. My empirical findings contribute to a new understanding of the relationship between rights retrenchment, the judiciary, and the rise of alternatives to court in immigration and employment law and point to possible fine‐grained changes for future immigration reform.

The IAFOR International Conference on Education – Hawaii 2024 Official Conference Proceedings

“…According to du (2023), one of the disastrous outcomes of the COVID-19 pandemic was laidoff employees. Clark (2023), discusses the relationship among retrenchment, the courts, and occupation law. Retrenchment results in decreased growth and adaptation related to unemployment, accordinng to Social Policy & Administration, (2022).…”