The H-2 visa: From restriction to regulated labor migration, 1880s–1970s

The institutional foundations of the low-wage H-2 visa date to the same era of immigration restriction that produced the professional H-1 category, but class conflict between employers and domestic workers generated the visa’s distinct institutional trajectory. Overall, these conflicts produced a detailed statutory and regulatory framework governing foreign labor admissions and established the institutional conditions under which recurring judicial review would later regularize the regime.

Beginning in the late nineteenth century, federal immigration law institutionalized sweeping prohibitions on foreign labor migration, which created expanding administrative authority to regulate the entry of migrant workers. In particular, statutes such as the Chinese Restriction Act and the Alien Contract Labor Laws formally barred employers from recruiting foreign labor, yet simultaneously created exceptions that allowed businesses in select sectors to secure workers from abroad under limited conditions (Calavita Reference Calavita1984; Moon Reference Moon2012). These early measures thus required immigration officials to distinguish between admissible and inadmissible labor and to adjudicate employer claims about labor scarcity, which drew the federal state into ongoing disputes about labor supply (Breen Reference Breen1997; Hahamovitch Reference Hahamovitch1997).

Over time, these conflicts intensified, particularly in agriculture and other low-wage sectors where employer demand for foreign labor remained persistent. Employers repeatedly sought exceptions to restriction, while American workers and their representatives demanded protections against wage competition and displacement. The result was the gradual construction of a policy architecture governing migrant labor admissions. In fact, by the 1920s, federal authorities had already experimented with temporary labor programs and administrative certifications that tied foreign workers to specific employers, limited their duration of stay, and subjected them to repatriation (Hahamovitch Reference Hahamovitch2011; Plascencia Reference Plascencia, van der Linden and García2016).

This pattern culminated in the mid-twentieth century as wartime and bilateral labor programs, such as the Mexican Bracero Program, institutionalized key features of regulated temporary labor, including labor market tests, wage standards, and federal oversight (Calavita Reference Calavita1992; Hahamovitch Reference Hahamovitch2011). These arrangements reflected a political settlement: employers gained access to foreign workers, while the state imposed conditions on migrant labor recruitment intended to protect domestic workers. When Congress enacted the Immigration and Nationality Act of 1952, it codified these practices under the H-2 visa, which created a permanent statutory channel for admitting both “unskilled” and “skilled” temporary workers “if unemployed persons capable of performing such service or labor cannot be found in this country” while delegating considerable authority to the executive branch to administer the program.Footnote ⁶

Yet such political compromises did not resolve underlying conflict. Instead, by the 1960s, organized farmworkers and civil rights advocates had successfully challenged the programs’ impact on America’s minority workers in two ways. First, they led Congress to terminate the Bracero Program in 1964 and, second, they pushed Secretary of Labor W. Willard Wirtz to exercise delegated executive authority under the INA to adopt more restrictive H-2 admissions rules. These latter War on Poverty policies limited employer access to foreign labor by restricting H-2 admissions to 120 days and largely confined the program to the sugar and fruit industries. They also reinforced the principle that the INA should prioritize domestic workers by introducing the Adverse Effect Wage Rate (AEWR), which raised the cost of hiring foreign labor in order to protect domestic wages (Semler Reference Semler1983; Hahamovitch Reference Hahamovitch2011). By the early 1970s, then, the H-2 visa had become a highly contested system characterized by a growing set of administrative rules. Ongoing class conflict, however, did more than produce this dense regulatory regime. It also laid the foundation for employers and American workers to turn to litigation, where federal courts would become recurring participants in the regime’s maintenance.

The judicialization of class conflict under H-2, 1970s

The judicialization of the H-2 program in the 1970s signified a shift in how the American state governed conflicts over foreign labor. No longer did administrative discretion or political bargaining in Congress solely mediate opposing interests: disputes over migrant worker admissions increasingly moved into federal court, where they became questions of statutory interpretation and administrative delegation. This transformation was driven in significant part by American farmworker organizations, which had achieved a moment of political leverage in the mid-1960s, but found their gains difficult to sustain through legislative and administrative channels alone. This change also marked the beginning of a new judicial role, as courts increasingly absorbed and routinized conflict over foreign workers. Federal courts would later build on this capacity in the 1980s, as recurring judicial review came to regularize a new statutory and regulatory framework.

The United Farm Workers (UFW), in particular, played a central role in this process of judicialization. Early litigation in South Florida illustrates this transition. When UFW organizers encountered Caribbean H-2 workers in the sugar industry, they turned to legal action to help them organize foreign labor. In Petersen v. Talisman Sugar (1973), the union, working with Florida Rural Legal Services, thus secured access to employer-controlled labor camps.Footnote ⁷ However, H-2 workers proved hard to organize on account of their employer-dependent visa and seasonal status. Nevertheless, the case revealed to the UFW that litigation could be a viable strategy for contesting the H-2 program. The union subsequently expanded its efforts into a broader legal campaign aimed at restructuring the entire system.

This strategy culminated in NAACP v. Brennan, a national class-action lawsuit that reframed farmworker grievances as violations of federal law.Footnote ⁸ Here, plaintiffs alleged that the DOL’s employment services discriminated against domestic workers and failed to enforce statutory protections under the INA and its accompanying regulations, which were designed to ensure that foreign labor admissions did not adversely affect the job opportunities, wages, and working conditions of domestic farmworkers. By translating labor market exclusion into constitutional and statutory claims, the suit forced both the agency and Congress to respond. Congressional hearings, administrative review, and the imposition of a court-supervised reform plan ensued (deLone Reference deLone1992). Yet these outcomes also revealed the limits of judicial intervention. The eventual settlement, centered on a Monitor/Advocate system, expanded administrative capacity without fundamentally resolving underlying conflicts over its adequacy, which U.S. farmworkers continued to argue led to their displacement from the fields (Goldfarb Reference Goldfarb1981).

Parallel wage litigation further demonstrates how courts responded to, but did not resolve, these disputes. In Williams v. Usery (1976), for example, worker advocates sought to use the courts to strengthen statutory protections for domestic labor by requiring employers to compensate piece-rate workers at levels twenty-five percent above the DOL’s hourly Adverse Effect Wage Rate (AEWR). The claim rested on the argument that growers had responded to the Wirtz-era wage requirement by increasing productivity mandates, which had eroded the intended wage protections. The court rejected the claim, holding that the Secretary of Labor was not obligated to make agricultural work more “attractive” to domestic labor under the INA.Footnote ⁹ The decision clarified the limits of statutory protections for American workers, while leaving the agency’s broader wage-setting framework intact.

Employers also turned to litigation to contest the DOL’s regulatory authority at this time. Early cases often failed. In Elton Orchards v. Brennan (1974), for example, a grower challenged the Department of Labor’s denial of its H-2 certification, arguing that business necessity entitled it to foreign workers.Footnote ¹⁰ The court rejected this claim, holding that business necessity alone could not override the INA’s statutory condition that H-2 workers be admitted only when domestic labor was unavailable. Similarly, in Florida Sugar Cane League v. Usery (1976), growers challenged the Department’s wage determinations, but were unsuccessful.Footnote ¹¹ These decisions therefore reinforced existing regulatory principles while establishing litigation as a recurring mechanism of contestation.

By the late 1970s, however, judicial review had also begun to yield more favorable outcomes for employers. Cases such as Patterson Orchard v. Marshall (1977) and Frederick County Fruit Growers Association v. Marshall (1977), for example, required courts to interpret what it meant for domestic labor to be “available” under the INA in light of the DOL’s recruitment rules. In one instance, a court held that growers were not obligated to provide transportation advances to domestic workers in order to attract them first; in another, it reversed efforts to prioritize Puerto Rican labor over foreign workers (Vialet Reference Vialet1977; Griffith Reference Griffith1986). A different issue arose in South Texas, where the Carter administration had temporarily admitted H-2 workers through the Immigration and Naturalization Service (INS) without requiring employers to complete the DOL labor-certification process. At the time, the DOL’s certification role remained advisory under the INA rather than a statutory prerequisite to admission. As a result, when challenged by Texas Rural Legal Aid, a district court subsequently permitted employers to recruit migrant workers from Mexico without complying with DOL recruitment regulations.Footnote ¹²

Soon the Carter administration would go further still, responding directly to accumulating litigation pressures and calls to manage undocumented migration in the Southwest by revisiting the H-2 program’s 1960s-era regulations altogether (Vialet Reference Vialet1977). In doing so, Carter’s DOL turned what had previously been a domain of political discretion – employer foreign labor certification – into a predictable entitlement. Detailed procedural rules would now govern the process.Footnote ¹³ However, the 1978 regulations also strengthened the program’s wage standards and imposed new obligations on employers, such as a requirement that employers continue to recruit domestic workers until fifty percent of a foreign worker’s contract had elapsed. The significance of these reforms, then, is that they made employer access to foreign labor both more predictable and more regulated at the same time. Congress would soon codify this arrangement through the Immigration Reform and Control Act of 1986 (IRCA), which created the institutional framework that federal courts would later maintain through regularization.

Judicial regime maintenance as regularization, 1980s–present

If the 1970s marked the judicialization of conflict over H-2 admissions, the 1980s and the decades that followed saw the regularization of the regime through recurring judicial review. After all, disputes over wages, recruitment, housing, transportation, and the scope of executive authority intensified as the H-2 program expanded across sectors and became more central to the management of unauthorized migration. Moreover, after Congress codified the Carter-era framework through the Immigration Reform and Control Act of 1986 (IRCA), federal courts increasingly absorbed these disputes through judicial review. In doing so, they helped sustain a regulatory framework that made employer access to foreign labor more predictable while retaining extensive worker protections.

The Reagan administration was also critical to the ongoing judicialization of H-2. This is because Reagan had entered office committed to deregulation across the administrative state and had quickly extended that orientation to foreign labor admissions. In agriculture, for example, his DOL moved almost immediately to weaken Carter-era worker protections. Within weeks of the inauguration, his administration had already suspended a Carter rule, which had required growers to adjust piece rates paid to workers in line with annual increases in the Adverse Effect Wage Rate (AEWR), and formalized this rollback through administrative guidance (deLone Reference deLone1992). The immediate effect was to permit employers to respond to the DOL’s annual AEWR increases by raising their productivity thresholds, which made agricultural jobs less attractive to American workers and increased foreign labor certifications.

In response, worker advocates turned to the courts to challenge Reagan-era deregulation, but the litigation revealed the limits of judicial intervention within a statutory framework that afforded the executive branch considerable discretion over H-2 admissions, with the DOL serving in an ongoing advisory role to the Attorney General under the INA before IRCA. For example, when the NAACP challenged the Reagan administration’s rescission of the piece-rate rule, it argued that its DOL had violated the Administrative Procedure Act (APA). Yet, a three-judge panel, which included Ruth Bader Ginsburg, on the D.C. Circuit ultimately unanimously upheld the administration’s regulatory rollbacks once the agency had made them properly through notice-and-comment.Footnote ¹⁴ In doing so, the panel underscored two main factors: the statutory deference Congress had afforded the executive under the H-2 program and the INA, and the recently decided Chevron Supreme Court case, which directed courts to defer to agency statutory interpretations overall.Footnote ¹⁵ This case was thus significant because it showed interest groups that successful challenges to executive policymaking would generally rest only on procedural grounds. Courts had thus begun maintaining the H-2 framework when faced with routinized conflict over its contours by regularizing executive policymaking under the INA.

Employers met with similar results as they continued using the courts to challenge features of the regime they considered overly regulated, such as AEWR rates. In 1982, after the Department of Agriculture ceased producing the wage data on which the DOL had relied, for example, the Reagan administration initially declined to issue new AEWRs. Worker advocates forced the Department to publish them by invoking earlier administrative commitments dating to the Wirtz era. Yet, once the government published the rates, employers again returned to court to contest them. They failed on account of established DOL authority to make such rules under the statutory framework (deLone Reference deLone1992). A similar outcome followed in a dispute over domestic recruitment requirements, including the Carter administration’s fifty percent rule, which had mandated that growers continue to hire U.S. workers after employing foreign migrants. Here, a Reagan-appointed federal district court judge and unanimous three-judge panel at the U.S. Court of Appeals for the Fourth Circuit all upheld the regulation.Footnote ¹⁶ Across federal district and appellate courts, Democratic and Republican appointees thus both generally treated executive policymaking under the H-2 program and INA as valid as long as the DOL properly issued the rules. These outcomes illustrate the federal judiciary’s emerging regime maintenance role, as courts absorbed employer and worker challenges to the broader regulatory structure, even as the executive shifted rightward and deregulated.

Congress’s intervention through the Immigration Reform and Control Act (IRCA) of 1986 reinforced this steadying pattern. This is because IRCA did not resolve the clash between growers and worker advocates: instead, it codified much of the framework that prior litigation and rulemaking had already produced. On the employer side, Congress created the sector-specific H-2A visa and provided new procedural accommodations on behalf of employers, including an opportunity to amend deficient job orders.Footnote ¹⁷ Yet, IRCA also strengthened worker protections by elevating the Secretary of Labor’s certification role from advisory practice to statutory command. In doing so, the Act codified the requirement that foreign labor admissions not adversely affect the wages and working conditions of similarly employed U.S. workers, as well as the fifty percent recruitment rule, and authorized appropriations to improve domestic recruitment and enforcement. Congress further granted the DOL statutory authority to enforce the rights of H-2A workers for the first time. In this sense, IRCA formalized a detailed compromise that neither employers nor worker advocates found satisfactory. That dissatisfaction ensured that class conflict would continue in the federal courts, where recurring judicial review would come to regularize this new statutory settlement.

The immediate post-IRCA years confirmed this dynamic as the Reagan administration immediately resumed deregulation through executive action by revising AEWR, housing, and transportation rules. Reagan’s DOL also restored the H-2 visa’s three-year duration after Wirtz-era limits had long constrained agricultural admissions to 120 days.Footnote ¹⁸ These executive-level interpretations of the INA’s domestic labor protections generated further waves of litigation in which courts reviewed, but did not unsettle, the underlying framework. For instance, when the Reagan DOL narrowed the circumstances under which growers had to provide free housing to domestic workers, a Carter-appointed federal district court judge, Joseph C. Howard Sr., deferred to the executive on the grounds that Congress had delegated such rulemaking authority to the agency.Footnote ¹⁹ In sugarcane, mechanization eventually removed one major site of class conflict over migrant labor admissions. However, in fruit and other crops, growers and worker advocates continued returning to court, not because judicial review promised transformative victory, but because litigation had become the ordinary means of contesting executive-level admissions rules in the post-IRCA era.Footnote ²⁰

This pattern became more pronounced in the 1990s as litigation continued to show that neither side could significantly alter the existing regulatory architecture. For example, courts continued to absorb ongoing conflict over Reagan-era deregulation, but left the broader H-2 admissions regime intact. Territorial worker litigation illustrates this fact. In Caraballo v. Reich (1993), for instance, Puerto Rican apple pickers challenged a new rule that denied them travel and subsistence reimbursements, which had previously been available to them under a Carter-era policy.Footnote ²¹ The challenge failed as the D.C. Circuit once again unanimously upheld Reagan’s rollback. Such cases are important because they illustrate the central feature of the regime: judicial review became routine, but did not substantively restructure the existing statutory and regulatory framework. In doing so, courts had begun to contribute to its institutional lock-in.

In light of federal courts’ regularizing role, worker advocates began to reorient how they engaged in long-standing disputes over employers’ domestic recruitment obligations. Since NAACP v. Brennan, minority worker organizations had argued that the DOL too readily certified foreign workers despite the availability of citizen and permanent resident labor. These disputes resurfaced in the Pacific Northwest and elsewhere during the 1990s as employers increasingly turned to H-2 labor to avoid IRCA’s employer sanctions. Yet as repeated challenges to executive policy had produced limited results, worker advocates shifted from suing the government to suing growers directly under the INA and the Migrant and Seasonal Agricultural Worker Protection Act. In cases such as Villalobos v. North Carolina Growers Association, for instance, workers successfully argued that employers had meaningful obligations to recruit and hire domestic labor before turning to H-2A workers.Footnote ²² Unlike direct challenges to executive policymaking, however, these lawsuits sought to enforce private obligations rather than transform the governing policies themselves. After all, by the 1990s, repeated judicial deference to executive authority under the INA had made such enforcement strategies a more promising avenue for worker advocates.

Employers also attempted to exit the H-2 visa’s dense regulatory framework in this period, albeit through legislation. In fact, throughout the late 1990s, grower-aligned legislators repeatedly introduced bills in Congress to lower AEWRs and eliminate domestic recruitment requirements, but none became law. The more ambitious AgJOBS effort in the 2000s, negotiated between the UFW and major agricultural employers, likewise sought to replace the existing H-2A structure with a more streamlined system paired with legalization for undocumented workers. Its failure, and the subsequent collapse of broader immigration reform in 2007, reaffirmed the resilience of the post-IRCA framework. Even where organized interests reached compromise, Congress could not redesign the regime as legislative paralysis had taken hold. As a result, conflict returned to the executive branch and the courts.

The George W. Bush administration deepened this cycle of executive action and judicial review when it pursued deregulation through unilateral rulemaking. It began early in the millennium, when the administration chose to delay its annual AEWR publication, which effectively lowered employers’ labor costs until the DOL issued new rates. Worker advocates immediately and successfully sued, and the Clinton-appointed D.C. district judge Emmet G. Sullivan held that the DOL’s sudden change in policy was not just a minor “procedural clarification”: the agency was legally required to go through a formal notice-and-comment rulemaking period before making such a switch.Footnote ²³ Despite this ruling, however, the administration’s broader deregulatory trajectory continued. In 2008, after finally following notice-and-comment procedures, the Bush DOL replaced its governing H-2A regulations with rules that lowered wages and eliminated all employer domestic recruitment obligations. Farmworker groups predictably challenged the changes, but because the Department had complied with administrative procedure, the Clinton-appointed D.C. district judge Ricardo M. Urbina provided no meaningful relief.Footnote ²⁴ Judicial review thus preserved both IRCA’s rule-bound system and substantial executive authority over the H-2 program, even as administrations changed the substance of admissions policy.

By this point, similar sequences had also emerged under H-2B, the nonagricultural counterpart to H-2A Congress had created in 1986. As H-2B admissions had expanded sharply in landscaping, forestry, leisure, and hospitality, the program had become a major site of class conflict in its own right. Here, too, the key development was not simply expansion but judicialization as employers and worker advocates increasingly contested regulatory standards, such as prevailing wage rates and domestic recruitment obligations, through litigation. For example, worker advocates immediately sued when the Bush administration introduced a new H-2B rule in 2008 that lowered workers’ wages and replaced union consultations and domestic recruitment requirements with employer attestation. The latter shift was important because it meant that employers now merely had to certify compliance with regulatory requirements rather than demonstrate it through the more extensive certification procedures that had previously governed H-2B admissions. The resulting judicial outcome was mixed.Footnote ²⁵ A Carter-appointed federal district court judge concluded that the Department’s new four-tier wage methodology conflicted with the adverse-effect standard Congress had incorporated into the INA through IRCA and that the agency had failed to provide a reasoned explanation for the change under the APA. The court therefore ordered the Department to revise portions of the rule; however, it left the broader framework, including employer attestation and the use of private wage surveys, in place. In sum, while the court found that portions of the policy violated the INA’s statutory commitments, it left ultimate responsibility for revising the rule with the executive branch.

The Obama administration entered office under the auspices of this highly judicialized structure and its regularizing role. Beginning immediately in 2009, for example, Obama’s Secretary of Labor Hilda Solis suspended the Bush administration’s H-2A 2008 rule, only for a district court in Maryland to quickly enjoin it on behalf of growers and on the grounds that rescission itself required notice-and-comment.Footnote ²⁶ The Department then proceeded to restore AEWRs and domestic recruitment obligations after completing the necessary procedures in 2010.Footnote ²⁷ Under H-2B, however, judicial regime maintenance soon became more multifaceted and prolonged. This is because after a federal court directed the Obama administration to replace the Bush administration’s 2008 wage methodology, Congress repeatedly blocked the implementation of this new rule through appropriations riders that prohibited the Department from spending funds to enforce it. This impasse produced further litigation as worker advocates returned to court. In consequence, in subsequent litigation initiated by the Comité de Apoyo a los Trabajadores Agrícolas (CATA), federal courts invalidated both the Bush-era four-tier wage structure and private wage surveys by concluding that the practices conflicted with the INA’s protections for domestic workers.Footnote ²⁸

Yet employers responded with their own litigation campaign. Backed by the U.S. Chamber of Commerce, they began to argue that, in contrast to the H-2A program, Congress had never delegated substantive H-2B rulemaking authority to the Department of Labor at all. In 2014, a federal district court accepted this argument and vacated the Department’s new H-2B regulations, which had restored employer recruitment obligations to the H-2B program. However, in 2020, a panel of appellate judges appointed by both Presidents Obama and Trump reversed, holding that the Department of Homeland Security could lawfully rely on the DOL to administer the labor certification process under the INA’s statutory framework (as amended by IRCA).Footnote ²⁹ The Supreme Court denied certiorari the following year.Footnote ³⁰ After more than a decade of litigation initiated by both employers and worker advocates, the federal judiciary thus ultimately reaffirmed the institutional architecture through which the government regulates H-2B admissions, including the executive branch’s authority to administer the labor-certification process through the DOL.

The irony of prolonged judicial conflict over DOL rules was that, by 2013, employers and a broad coalition of American labor organizations had already reached a far-reaching compromise over the future of the H-2A and H-2B programs. This is because for the first time, the U.S. Chamber of Commerce and the AFL-CIO had agreed on expanding legal pathways for foreign labor under conditions designed to rebalance employer demand with worker protections. Yet, despite this convergence, Congress failed to enact reform. The House of Representatives declined to take up a Senate-passed 2013 immigration bill, and ongoing legislative efforts such as AgJOBS stalled.Footnote ³¹ In the absence of statutory redesign, conflicts between employers and U.S. workers thus remained anchored in administrative processes and litigation, where judicial review continued to perform its regime maintenance function. At the same time, the H-2 system continued to expand, becoming more concentrated among Mexican and Caribbean low-wage labor streams.Footnote ³²

Recent developments further illustrate the durability of regime regularization in the courts. For instance, during the COVID-19 pandemic, President Trump issued Presidential Proclamation 10052 (2020), which suspended several visa categories, including H-2B admissions, in the name of protecting American workers during an economic emergency. However, business groups swiftly challenged the order, and a federal district judge, George W. Bush-appointed Jeffrey S. White, in Northern California enjoined the proclamation on the grounds that the executive branch had exceeded its statutory authority.Footnote ³³ As the court reasoned, the INA obliges the executive branch to process visa applications, even if it retains control over the rules governing that process. The decision reaffirmed that, even in moments of heightened political conflict, courts would enforce the statutory contours governing migrant labor policy in the United States.

Under the Biden administration, this pattern persisted as H-2 admissions reached historic highs.Footnote ³⁴ This is because employers continued to challenge wage protections and recruitment requirements, while worker advocates remained active in disputes over wage-setting methodologies and enforcement.Footnote ³⁵ Yet recent litigation also suggests that the doctrinal basis of judicial review may be evolving. In Teche Vermilion Sugar Cane Growers Association v. Su (2025), for example, a Trump-appointed federal district court judge in Louisiana vacated a Biden AEWR rule after concluding that the DOL lacked statutory authority under the INA to incorporate certain nonagricultural wage determinations into its agricultural wage calculations.Footnote ³⁶ In important respects, however, Teche resembles earlier CATA litigation. In both instances, federal courts evaluated whether the Department’s wage-setting practices conformed to its statutory obligations under the INA and invalidated methodologies they concluded exceeded those limits. Unlike the earlier cases, however, Teche arose after Loper Bright eliminated Chevron deference and required courts to exercise independent judgment in interpreting statutory authority. The significance of Loper Bright may therefore be comparatively limited under H-2, where a detailed statutory and regulatory architecture already structures judicial review. Teche thus illustrates both continuity and change: Loper Bright altered the standard of judicial review, but not the statutory and regulatory framework against which courts evaluate executive policymaking under H-2.

Collectively, developments from the 1980s to the present show how recurring judicial review contributed to institutional lock-in and path dependence under the H-2 program. Employers and worker advocates repeatedly used the courts to contest wages, recruitment obligations, housing standards, and the scope of executive authority, while successive administrations sought to move policy in different directions. Although individual judicial outcomes varied, courts repeatedly interpreted these disputes within the statutory and regulatory architecture Congress had codified under IRCA, which preserved considerable room for executive policymaking. Judicial review thereby regularized political conflict without resolving it and helped to reproduce a regime that simultaneously provides employers predictable access to foreign labor and subjects that access to extensive regulatory oversight. Over time, recurring judicial review thus made this underlying political settlement increasingly difficult for either employers or worker advocates to reform without additional congressional action. As the next section demonstrates, however, judicial regime maintenance operates differently under H-1B, where prior political conflict produced a thinner statutory framework and considerably less administrative authority.

From elite exception to institutionalized access, 1880s–1970s

The institutional foundations of the H-1 visa emerged in the same period of immigration restriction that gave rise to the H-2 program, but class conflict between employers and domestic workers over high-skilled labor produced distinct policies and relatively weak regulatory development. By the late nineteenth century, federal immigration law had combined broad prohibitions on contract labor migration with a series of exceptions for individuals Congress deemed to possess specialized skills or social distinction. Under Chinese Exclusion and the Alien Contract Labor Laws, for example, legislation required immigration officials to distinguish between barred laborers and admissible nonlaboring or professional classes, including merchants, students, performers, and other individuals whose entry Congress had viewed as compatible with restriction (Calavita Reference Calavita1984; Calavita Reference Calavita2000). In practice, administrators also interpreted these categories flexibly in response to employer demand, which allowed select forms of labor migration to persist even as the state formally opposed contract labor.

Over time, these administrative distinctions laid the groundwork for a more formalized category of temporary professional labor. In fact, by the interwar period, federal officials were routinely admitting actors and musicians through ad hoc exemptions and temporary permits, particularly when national origins quotas otherwise would have blocked their entry. Like other forms of foreign labor migration, however, these professional admissions also generated political conflict. As a result, by the early 1930s, organizations including the American Federation of Musicians had pushed Congress to enact the Musicians Immigration Clarification Act of 1932, which restricted temporary admissions to musicians of “distinguished merit and ability” (Clark Reference Clark2027).Footnote ³⁷

The Immigration and Nationality Act of 1952 codified this protectionist standard by establishing the H-1 visa for individuals of “distinguished merit and ability,” which created a permanent statutory channel for a very narrow subset of temporary professional labor.Footnote ³⁸ While the statute imposed basic visa requirements, including employer sponsorship and time-limited admission, it did not delegate to the executive branch the authority to make labor market regulations such as prevailing wage rates and domestic recruitment obligations, or to build the type of enforcement mechanisms that characterized the H-2 visa. After all, Congress had already responded to American worker demands by limiting H-1 eligibility to a narrow class of professional workers, which reduced pressure for the development of a detailed regulatory regime.

Subsequent reforms in the 1970s began to alter this trajectory as employers fought to loosen their access to professional workers under the visa. For example, amendments to the Immigration and Nationality Act that Congress passed in 1970 eliminated the requirement that an H-1 visa holder’s position be temporary, which allowed employers to fill permanent roles with H-1s and more easily renew workers’ status. This shift thus facilitated longer cumulative stays and integrated H-1 workers into the U.S. economy without substantially expanding regulatory oversight.Footnote ³⁹ Similarly, in 1972, business organizations and the American Association of Immigration Lawyers persuaded an INS administrative law judge in Matter of Essex Cryogenics Industries, Inc. that possession of a bachelor’s degree constituted prima facie evidence of “merit.”Footnote ⁴⁰ By the early 1970s, then, the United States had institutionalized a channel for admitting a wider class of professional foreign labor that was legally distinct from, and far less regulated than, the system governing agricultural and other low-wage workers. Employer victories had thus successfully weakened the earlier protectionist restrictions on admissions without producing a corresponding expansion of administrative authority over recruitment. This relatively thin and permissive framework would impact how conflict over H-1 admissions unfolded and, ultimately, how courts would interpret regulatory authority under the program.

Reforming H-1B and structuring judicial insulation, 1989–2000s

The statutory order that would later shape judicialization under H-1B dates to the visa reforms in the late 1980s and early 1990s. At that moment, Congress confronted a growing tension between employer demands for expanded access to professional foreign labor and increasing protectionist concerns about domestic job displacement (Chishti and Yale-Loehr Reference Chishti and Yale-Loehr2016). While Congress would once again expand employer access to professional foreign labor, it would decline to create or delegate to the executive branch the kinds of regulatory authority and enforcement mechanisms that characterized the H-2 program.

On the eve of reform, federal courts had already treated the H-1 visa as largely detached from labor regulation. In Desert Palace, Inc. v. McNary (1989), for example, the INS had denied H-1 visas to Las Vegas casinos and foreign performers on the grounds that a domestic labor dispute was pending. The employers challenged the decision, arguing that, unlike under H-2, Congress had not authorized the agency to consider labor market conditions when issuing H-1 visas. The U.S. district court judge Lloyd D. George agreed and enjoined the agency on the grounds that the statute required only a determination of “distinguished merit and ability.”Footnote ⁴¹ The INS complied. The significance of Desert Palace is that it marked one of the last moments in which courts treated H-1 as wholly outside labor regulation before Congress altered the visa’s statutory structure.

Importantly, the impetus for this reform first came from employers rather than American worker demands. By the late 1980s, the H-1 visa had expanded beyond arts and entertainment into higher education, healthcare, and information technology, where firms sought access to skilled foreign labor outside restrictive permanent immigration channels. Nonetheless, employer coalitions such as the Business Immigration Coalition (BIC), the National Association of Manufacturers (NAM), and the American Immigration Lawyers Association (AILA) pressed Congress to expand employment-based migration even further by arguing that existing immigration law failed to keep pace with an increasingly global labor market. As the BIC told Congress in 1989, globalization had produced “a truly international market” for labor, and U.S. firms required more flexible access to foreign professionals to remain competitive with countries in Europe and Japan.Footnote ⁴²

The Immigration Act of 1990 (IMMACT90) responded to these demands by expanding admissions while granting the Department of Labor only limited regulatory and enforcement authority. In doing so, Congress transformed H-1 into H-1B and significantly increased employer access to foreign labor by lengthening the visa’s duration to three years, renewable to six, and opening the category to “specialty occupations,” which could now be satisfied by the equivalent of a bachelor’s degree. At the same time, however, lawmakers rejected organized labor’s proposals for such things as domestic recruitment obligations, statistical labor market tests, and robust Department of Labor (DOL) oversight. Instead, Congress adopted a limited attestation regime, which only required employers to certify through Labor Condition Applications that they would pay prevailing or actual wages (Hahm Reference Hahm2000). While the Department of Labor did gain authority to enforce H-1B wage requirements at this time, Congress otherwise left the recruitment process largely in employer hands, subject to a 65,000 annual visa cap.

To a certain extent, the blueprint for this thin and permissive framework already existed in 1990. Just one year earlier, for instance, Congress had created the H-1A visa to accommodate hospitals facing nursing shortages amid sector reforms and the AIDS crisis and had chosen an attestation-based regime that was looser than H-2. This is because, unlike H-2, H-1A relied on employer attestations rather than prior domestic-worker recruitment requirements. Nevertheless, the American Nurses Association (ANA) had secured a statutory requirement that hospitals demonstrate to the DOL that they were taking steps to recruit and retain U.S. nurses.Footnote ⁴³ When legislators turned to the broader H-1B category, however, employer opposition to the “extensive paperwork,” delays, and expenses associated with H-2 certification pushed the resulting regime further in a permissive direction: employers were required merely to attest that they would pay prevailing wages and maintain required working conditions.Footnote ⁴⁴ From the outset, then, the statutory and regulatory framework governing H-1B was not only thinner than H-2; it was deliberately structured to avoid the regulatory density that characterized agricultural and other low-wage labor migration, as well as the additional recruitment protections Congress had recently incorporated into H-1A. These choices would later shape how recurring judicial review operated under the H-1B visa.

Subsequent reforms reinforced this initial institutional design despite ongoing political conflict. As the population of H-1Bs working in the U.S. grew from approximately 141,000 workers in 1989 to more than 425,000 by 2000, labor organizations repeatedly sought stronger regulatory protections (North Reference North2011).Footnote ⁴⁵ For example, the Software Professionals’ Political Action Committee (SPPAC) testified that employers were using labor contractors to replace domestic workers with H-1Bs and called for enforceable anti-displacement rules and better wage rules.Footnote ⁴⁶ Labor critics were joined by increasingly vocal restrictionist voices on the right, such as Patrick Buchanan, who framed the program in nativist terms, calling it a low-wage South Asian labor importation scheme that racialized Silicon Valley rather than “Americanizing” the technology workforce (Hahm Reference Hahm2000, 1684). Congress responded with partial measures under the American Competitiveness and Workforce Improvement Act (ACWIA) of 1998. This Act raised the visa cap while introducing modest non-displacement attestations that applied only to a new category of “H-1B dependent employers” (Hahm Reference Hahm2000). In sum, even amid growing labor and cultural opposition to the program, lawmakers again declined to impose concrete domestic recruitment obligations or create a DOL bureaucracy with enforcement capacity comparable to that governing H-2.

Further expansion of the H-1B program under the American Competitiveness in the 21st Century Act (AC21) in 2000 reproduced this template. On the one hand, Congress increased visa caps, created exemptions for universities and nonprofits, and facilitated the hiring of foreign graduates from U.S. institutions.Footnote ⁴⁷ Yet, although labor concerns persisted, additional rules or delegations of authority did not follow. Instead, policymakers continued to prioritize employer flexibility and access to foreign labor.

In the mid-2000s, a conservative-led Congress further narrowed the ambition of H-1B regulation by reframing labor conflict as a problem of fraud. Hardly accidental, they did so because Republican lawmakers and allied groups had concluded that employer abuse of the H-1B program was the product of isolated bad actors rather than systemic design. Under this logic, only employers who willfully misrepresented information on certification forms warranted regulation. As a result, legislative reforms shifted enforcement authority toward the detection of individual misrepresentation, particularly through the involvement of U.S. Citizenship and Immigration Services (USCIS), rather than expanding DOL oversight of wages and U.S. worker recruitment. Labor organizations continued to press for broader reform including DOL audit authority and stronger worker protections, but these proposals repeatedly failed.Footnote ⁴⁸ Incremental measures, such as increased fees on labor contractors, did little to alter the underlying institutional structure.

Legislative stalemate thereafter entrenched the H-1B program’s core features. Business-aligned legislators pushed for expanded admissions and greater flexibility, while protectionist coalitions sought higher wages, recruitment requirements, and limits on labor contractors. Neither side achieved decisive victory.Footnote ⁴⁹ Instead, Congress left in place a regime defined by employer discretion and persistently thin enforcement. By the mid-2010s, as Indian and Chinese labor contractors came to dominate H-1B petitions and critiques of the program intensified from the left and the right, proposals to strengthen regulatory oversight or administrative capacity thus continued to stall.

As a whole, then, congressional choices across many decades produced a distinct institutional outcome under H-1B. Unlike H-2, where class conflict had created detailed and dense regulatory oversight under the executive branch, legislators created a comparatively permissive regime that prioritized employer access while limiting state intervention. These design features would also structure how federal courts ultimately engaged the visa. In the sections that follow, I thus show how judicial regime maintenance under H-1B did not regularize a dense regime, as under H-2. Instead, recurring judicial review largely reproduced this comparatively thin institutional settlement by insulating it from subsequent efforts to expand executive authority and regulatory oversight.

Judicial insulation under a thin regulatory regime

Although class conflict under both the H-2 and H-1B visas produced judicialization, federal courts responded to H-1B litigation in a very different way: by generally insulating employer recruitment from protectionist intervention and administrative redesign. This judicial posture reflected the statutory architecture Congress embedded in IMMACT90, which expanded employer access to foreign labor while deliberately limiting executive oversight of the program’s labor market impacts. As a result, judicial review under H-1B preserved a relatively business-centered admissions regime by locking in the statutory arrangement produced by earlier political conflict.

At first, because Congress declined to impose labor market tests, recruitment requirements, or robust enforcement mechanisms in 1990, there was little substantive regulatory policy to litigate. Early challenges were therefore narrow and technical. For example, after IMMACT90, the National Association of Manufacturers successfully contested a provision in the DOL’s implementing regulations that had imposed a 90-day cumulative placement limit on third-party assignments, which would have significantly limited the role of labor contractors under the program. In vacating the rule, the Reagan-appointed D.C. district court judge, Royce C. Lamberth, agreed with the NAM that the agency had issued the rule without proper notice-and-comment under the APA.Footnote ⁵⁰ The Department never reissued the rule, despite the growing importance of labor contracting in subsequent decades.

Judicial engagement subsequently intensified when executive administrations attempted to introduce protectionist reforms into the H-1B program in response to congressional inaction and growing demands from American workers in the knowledge economy. Indeed, beginning in the Obama administration, the U.S. Citizenship and Immigration Services (USCIS) sought to tighten the visa’s eligibility requirements and regulate labor contracting practices more aggressively. Predictably, employers responded by turning to federal courts. Federal courts did permit some executive initiatives, such as regulations requiring degree requirements for healthcare workers and ensuring that labor contractors maintain an employer-employee relationship with their H-1B workers.Footnote ⁵¹ However, federal courts also routinely overturned new and narrowed USCIS interpretations of the term “specialty occupation” under the INA, which limited H-1B entries into professions such as market research and information technology in the name of protecting U.S. workers. In doing so, judges repeatedly concluded that USCIS was imposing eligibility requirements on H-1Bs that Congress had not authorized under the statute. As federal district judges from Massachusetts to Ohio and Washington State reasoned, these additional restrictions were also “arbitrary, capricious, and an abuse of discretion” under the APA.Footnote ⁵²

This significant pattern of judicial insulation became even more pronounced under the first Trump administration as executive protectionism began to peak. Trump’s USCIS and DOL attempted, for example, to regulate H-1B labor contractors more strictly and raise prevailing wage levels under the visa. Yet, when employers and industry groups challenged these measures, federal courts repeatedly invalidated them. Beginning in ITServe Alliance v. USCIS (2020), for instance, a federal court struck down a policy limiting third-party placements as ultra vires under the INA. In doing so, the court relied in part on a provision Congress had added to the INA in 1998 that expressly permitted employers to place H-1B workers in paid “nonproductive status” when work was unavailable. Because Congress had thus contemplated periods between work assignments, the court concluded that USCIS could not require labor contractors to document specific third-party assignments for the entire three-year visa period. The court also found the agency’s requirements “arbitrary and capricious” under the APA.Footnote ⁵³

The COVID-19 pandemic further intensified this dynamic. This is because President Trump attempted to suspend H-1B admissions altogether under Presidential Proclamation 10052, but was swiftly enjoined from doing so in National Association of Manufacturers v. DHS on the grounds that his administration had exceeded its statutory authority under the INA.Footnote ⁵⁴ As the George W. Bush-appointed judge Jeffrey S. White explained, the INA does not empower the executive to stop visa processing, even in times of economic emergency. The Trump administration’s subsequent attempts to impose new restrictions on professional labor migration met similar fates. For instance, business groups, joined by universities, sued the administration over a dual-agency regulatory push in late 2020. In response, federal district judges appointed by Presidents George W. Bush and Bill Clinton invalidated a Department of Labor (DOL) rule, which sought sharp prevailing wage increases, as well as a Department of Homeland Security (DHS) interim final rule that restricted third-party contract placements, because the agencies had failed to comply with notice-and-comment requirements under the APA.Footnote ⁵⁵ Marketing analytics firms, for their part, compelled the USCIS to settle claims that it had impermissibly raised educational requirements in the sector.Footnote ⁵⁶ The Biden administration, which chose to defend a separate, late-stage Trump administration DHS regulation that sought to structurally replace the traditional random H-1B lottery with a wage-prioritization selection process, similarly lost when a district court vacated the allocation policy due to the unlawful appointment of the Acting DHS Secretary.Footnote ⁵⁷ The administration ultimately accepted this loss by voluntarily dismissing its subsequent appeal in the Ninth Circuit.Footnote ⁵⁸ In sum, across jurisdictions and administrations, federal courts repeatedly returned executive efforts to restrict H-1B admissions to the boundaries of the statutory authority Congress had established.

Recent developments under the second Trump administration further underscore both the resilience of this insulated regime and the increasingly ambitious strategies the current administration has adopted to alter it. Since 1990, executive efforts to reshape H-1B admissions standards have typically relied on interpretations of authority embedded within the visa’s statutory framework. Trump’s most recent initiatives, however, have sought to regulate professional labor migration through broader presidential powers. Most notably, the administration has defended a major restriction on H-1B admissions and its $100,000 fee on employer petitions under § 212(f) of the INA. These efforts triggered immediate litigation from business groups, universities, and state governments. While an Obama-appointed judge on the U.S. District Court for the District of Columbia initially upheld the administration’s reliance on § 212(f), that decision is currently under appellate review. Yet the administration’s petition fee policy also generated a different line of attack following the Supreme Court’s tariff decision in Learning Resources v. Trump. Footnote ⁵⁹ This is because plaintiffs could now argue that the $100,000 fee, like the tariffs, is an unconstitutional tax the executive has imposed on employers without congressional authorization. In Massachusetts, Obama-appointed federal district judge Leo T. Sorokin vacated the fee nationwide on these grounds on June 8, 2026, and the Trump administration appealed three days later. On July 24, 2026, however, the U.S. Court of Appeals for the First Circuit denied the federal government’s request for an emergency stay. While the outcomes of this litigation and other similar pending cases remain uncertain, their broader trajectory is revealing: judicial insulation under the INA has pushed executive efforts to reshape professional labor migration toward increasingly expansive assertions of presidential authority.

Overall, the cases I have reviewed above illustrate a distinct judicial role under H-1B. Federal courts have repeatedly insulated an employer-centered admissions regime through recurring judicial review by constraining executive policymaking and limiting the scope of protectionist intervention. Judicial regime maintenance, in this context, has thus locked in place a statutory system that prioritizes employer access to foreign labor over more extensive domestic worker protections, which reflects the institutional choices Congress made in 1990. It is perhaps not coincidental that the H-1B visa is now the largest temporary labor migration program in the United States, with an estimated 700,000 workers employed in the knowledge economy (Lighthouse Legal Operations 2026). It is also no accident that an administration committed to restricting immigration on both economic and cultural grounds has increasingly sought authority outside the H-1B framework in its effort to reshape professional labor migration.