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

• Published date: 01 January 2023
• Author: Gabrielle Clark
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/lapo.12213

ORIGINAL ARTICLE

Under the quasi-judicial state: H-1B employment

rights in an era of judicial retrenchment

Gabrielle Clark

Department of Political Science, California

State University, Los Angeles,

California, USA

Correspondence

Gabrielle Clark, Department of Political

Science, California State University, Los

Angeles 5151 State University Dr. Los Angeles

CA, 90032-8226, USA.

Email: gclark@calstatela.edu

Funding information

National Science Foundation, Grant/Award

Number: SES 1024142

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 inves-

tigation outcomes, published and unpublished adminis-

trative case records, and judicial casesreviewing agency

action to examine the extent to which and how H-1B

workers can use the quasi-judicial stateto solve work-

place 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.

In 2006, an H-1B worker, Raghu Shashank Arramreddy, filed a complaint against his

employer, the labor supply firm IK Solutions Inc., with the Wage and Hour Division (WHD)

in the Department of Labor (DOL). He claimed that the information technology labor supplier

owed him over $20,000 for 5 months he spent “benched”in the United States without work.

DOI: 10.1111/lapo.12213

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits

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adaptations are made.

©2023 The Author. Law & Policy published by University of Denver and Wiley Periodicals LLC.

Law & Policy. 2023;45:81–106. wileyonlinelibrary.com/journal/lapo 81

After investigation, the agency awarded Arramreddy only $3200.00 in unpaid wages. Hoping

to receive the full $20,000, Arramreddy proceeded to request a hearing at the Office of Adminis-

trative Law Judges (OALJ), the administrative trial court at the DOL.

Arramreddy lost his case, despite regulations under the Immigration and Nationality Act

(INA) that require employers to pay H-1Bs continuously, even in the absence of work (20 CFR

§655, Subpart H). The OALJ judge hearing the dispute accepted the labor supply firm’s argu-

ment: in order for time spent in the United States to count as remunerable, a worker must show

up every day in the office, regardless of the availability of work. Arramreddy had failed to do

this (Raghu Shashank Arramreddy v. IK Solutions, 2006). Arramreddy’s case outcome was thus

determined by the fact that the judge interpreted the INA in light of a company policy. Ulti-

mately, Arramreddy could have appealed his case to the Administrative Review Board (ARB)

in the DOL and, subsequently, to a federal district court; however, he did not press his claim

beyond the parameters of the DOL’s quasi-judicial state.

1

Since 1990, millions of foreign temporary migrants holding H-1B visas, such as

Arramreddy’s, have worked for American businesses in the knowledge economy. Each visa is

valid for 3 years and is renewable for six (8 CFR §214.2, Subpart H). In 1976, only 72,000 H-

1Bs worked in the United States (Lowell, 2000). By 2000, US firms employed over 425,000 H-

1B visa holders in sectors, such as information technology, healthcare, and education each year.

In 2009, the number rose to 651,500 (North, 2011). Despite President Donald Trump’s efforts

to restrict the entry of H-1B workers under the 2017 Buy American and Hire American Execu-

tive Order (EO), a least 583,420 H-1Bs continued to work in the knowledge economy in 2019

(North, 2020).

2

The growth of a professional migrant labor force in the United States has generated great

political controversy over the past decades. American citizens have argued that businesses only

use H-1Bs to easily hire, control, and terminate workers at will in a knowledge economy

already made precarious by outsourcing, subcontracting, and the rise of labor supply firms like

IK Solutions, Inc. H-1B workers are uncharacteristically vulnerable to employer control when

compared to American citizens and permanent labor migrants. For example, an H-1B visa is

employer-specific and an H-1B workeronly has 60 days after job terminationto exit the coun-

try if they do not find another position or change their visa status (8 CFR §214.1, Subpart L).

Otherwise, they become subject to deportation. H-1B workers are also flexible, cheap, and

racialized. Labor subcontractors and suppliers are the top users of the H-1B visa; while over

80% of H-1B workers come from India and China (US Congress, 2016; USCIS, 2020). The

pushback against admitting vulnerable foreign workers in an era of declining labor standards

has been loud, both on the left and the right (Costa, 2015; Malkin & Miano, 2015).

Arramreddy’s case against IK Solutions, Inc. illustrates that H-1B workers have also fought

back against businesses and the labor supply firms serving them. Indeed, his case is one of thou-

sands H-1B workers have filed with the DOL since Congress established statutory employment

rights and federal agency jurisdiction over the visa program under the Immigration Act of 1990

(IMMACT90). H-1B workers have also tried to use the 1990 rights to bypass the administrative

framework under the DOL and to bring claims of poor wages and working conditions directly

into federal courts. However, federal courts have denied H-1Bs standing to be in court under

the INA and confined the migrants to the DOL’s quasi-judicial state because they are shaped

by what political scientists call the logic of judicial retrenchment. Judicial retrenchment refers

to the process by which the judiciary has put limits on plaintiffs’ability to enforce statutory

rights in federal court and directed rights claims into alternative venues since the 1980s

(Burbank & Farhang, 2017; Staszak, 2016).

Despite a growing literature on professional temporary labor migration and the H-1B pro-

gram, there is limited research empirically analyzing the employment rights of migrants holding

temporary visas, such as the H-1B. Similarly, scholars have not addressed the ways in which

general characteristics of the American legal system—such as judicial retrenchment and the

82 UNDER THE QUASI-JUDICIAL STATE