Under the quasi‐judicial state: H‐1B employment rights in an era of judicial retrenchment.

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 I then use published data on DOL investigation outcomes, published and unpublished administrative case records, and judicial cases reviewing agency action to examine the extent to which and how H‐1B workers can use the quasi‐judicial state to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. [ABSTRACT FROM AUTHOR]