Scorched Border Litigation

Abstract

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from rural communities in other countries. During litigation, the employers and the employers’ lawyers regularly use the fact that the workers are no longer present in the United States to gain a procedural or substantive advantage in litigation. This strategy, which we call “scorched border” tactics, is a standard litigation practice and is enabled by the very design of temporary foreign work programs, themselves rooted in the United States’ long history of low-wage foreign labor exploitation. Scorched border litigation drives up costs for a deeply under-resourced public interest bar and can chill lawyers’ case selection, shutting down access to justice for some of the most vulnerable of the working poor. However, to date, there exists no study documenting or analyzing this undeniable phenomenon.