H1B visas have provisions which require a worker to leave the country if they lose their job and don't find a new one within 60 days. This is probably the best-known such status on stackoverflow, but I am sure other guest-worker visas have similar provisions.

This creates a situation in which any boss has the power to coerce workers, on such visas, to accept work conditions which a person would not accept if the only punishment for disobedience would be getting fired. It does after all give bosses the power to threaten workers with being uprooted (and face a potential deportation).

Has there been any legal challenge to this program based on the equal protection clause? After all, coercive powers which this worker status grants to bosses may, from time to time, deny workers protections under labor laws (or at least make such protections much more difficult to enforce).

If no such challenge has occurred to this day, who could potentially have a standing to bring it to court?

Just to preempt any objections that constitutional protections apply only to citizens, the Constitution makes a clear distinction between which rights belong to citizens and which belong to "persons" (a broader group) within the bounds of the jurisdiction. The equal protection belongs to all persons:

XIV.1 ... No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


If no such challenge has occurred to this day, who could potentially have a standing to bring it to court?

Beside ohwilleke's points, such a challenge would only seem viable if the imposed timeframe for finding new job (60 days) was practically not sufficient to secure one for a person eligible for a H1B visa.

These visas are not granted to random people most of which would struggle to find a job in the US. They are granted to qualified specialty occupation holders — taking into account the market demand for particular occupations/skills.

The expectation is that H1B visa holders should not have trouble finding jobs and, if fired, should be able to secure a new job in a matter of few weeks. If they cannot do so it means they are not in demand, which means they no longer fit the visa grant criteria and therefore should leave.

With the above in mind, "the power to coerce workers" is legally just bargaining power, not threat or force. The workers are welcome to accept offered conditions, or take chance to find better ones in 60 days if they think they are skilled and demanded enough. And if they do not think that, they should not be in the country on H1B visa in the first place.

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  • The last paragraph may as well be arguing that indentured servitude (or even slavery) can be legal if there is informed consent before contractually accepting it. The fact that someone maybe desperate enough to accept having their constitutional protections stripped (in exchange for a consideration) is precisely why certain rights cannot be contracted away. The idea that it is not a threat of force to put a highly-capable law-abiding professional under a threat of deportation (for effectively bad luck of not securing employment in a very short period of time) is not a very credible idea. – grovkin Apr 22 at 5:33
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    @grovkin that boils down to the number of days, doesn't it? Zero days would be coercion. Infinite days would be no difference from citizens/residents. There must be a number in between, correct? – Greendrake Apr 22 at 6:27
  • Close, but not exactly. In order for it to be identical to citizens/residents, they have to have a freedom to start their own business or even change a profession. I don't believe a citizen can sign a contract to never (in any future) enter any profession other than the one the contract stipulates. This also ignores the fact that they may become ill or suffer some onset disability. Treating being forcefully uprooted as a non-violent even is in itself dishonest. – grovkin Apr 22 at 6:47
  • Further, the idea that there is now a class of workers who cannot question any managerial decisions without risking a threat of deportation doesn't seem like a far cry from having the police return workers to a "company housing" because they still owe money to a "company store". – grovkin Apr 22 at 7:54

I don't know if such a suit has been brought, but it would almost surely not prevail. The employer has a duty to follow the law which may be enforced. While enforcement may be more difficult if a worker is deported, it is not impossible.

The possibility that an employer will use a law to discourage someone from exercising a legal right that they still have and can legally enforce, does not violate the 14th Amendment's equal protection clause and render the law unconstitutional.

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    The possibility that the police will exercise their legal power in order to coerce suspects to testify against themselves has led to Miranda rights. It has curtailed some of police powers (e.g. to continue questioning a suspect after they request a lawyer). The court may want to weigh into other areas where constitutional protections are stripped or curtailed through being chipped away by established legal regimes rather than through direct legislative mandates. – grovkin Apr 22 at 5:21

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