Under the quasi-judicial state: H-1B employment 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 I then use published data on DOL investigation outcomes, published and unpublished administrative case records, and judicial cases reviewing agency action to examine the extent to which and how H-1B workers can use the quasi-judicial state to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.