Abstract
Ming H. Chen, Jennifer M. Chacón and Shannon M. Gleeson, Exclusion by Design: Immigrant Racialization and Temporary Legal Status, 59 U.C. Davis Law Review 2543 (June 2026) (244 footnotes). Full Document
Migrants arrive in the United States on temporary visas ten times more often than on immigrant visas. Millions of those migrants come to work. For the past few decades, this has included tens of thousands of highly credentialed workers entering on H-1B visas, and tens of thousands more entering to perform seasonal agricultural work on H-2A visas.
The U.S. workforce is further bolstered by migrants who have received work authorization as part of their temporary authorization to remain in the country for humanitarian reasons. This includes individuals with Temporary Protected Status (TPS), a form of time-limited humanitarian protections for individuals present without authorization but deemed by the executive branch to be unable to return to their countries of origin because of an ongoing disaster or conflict. It also includes individuals who are part of the Deferred Action for Childhood Arrivals (DACA) program, which defers immigration enforcement actions against qualifying individuals who arrived in the United States at a young age.
Like other categories in immigration law since 1965, these temporary visas and humanitarian work authorization programs are formally “raceneutral.” However, due to the operation of U.S. immigration restrictions, historical labor migration patterns, and category eligibility requirements (including educational and experiential requirements), certain nationalities dominate these categories. As a result, these immigration status categories, though formally race neutral, are dominated by particular nationalities that correspond to racial categories historically excluded and subordinated in the United States: Asian, Latine, and Black. The experience of the workers in these status categories, in turn, help shape racial meaning in the United States.
This Article contributes to the growing body of critical migration studies. We demonstrate one of the mechanisms through which the operation of law ascribes racial meaning to legal status categories. Temporary immigration statuses are designed in ways that contribute to racialization through unnecessary social exclusions. Immigration law’s sorting into “high-skilled” and “low-skilled” worker statuses further affects the place of temporary migrant workers within a racialized hierarchy. Attention to the distinctive experiences of noncitizens across various temporary status categories deepens existing understandings of exclusion and racial subordination in the United States.
Much extant scholarship describes immigration status in binary categories such as legal and “illegal” or documented and “undocumented.” But migrant workers occupy spaces along a legal spectrum: some may be permanent residents with legal pathways to citizenship, some entered the country with temporary authorization to work, and others initially enter without authorization but subsequently acquire forms of twilight status that grant them temporary authorization to stay and work in the United States. Because all of these migrants are authorized by the U.S. government to live and work, the sociolegal term “liminal legal categories” fittingly describes them all. Some of the typological features of liminal legal categories include uncertainty about the scope of legal protection, heightened monitoring through one’s stay, and ongoing risk that permission to remain in the United States can be withdrawn. These formal legal categories take on informal, but significant, social meaning concerning migrants’ worth and desirability. Those social meanings, in turn, reconstitute and reinforce the legal categories.
The roadmap for this Article is as follows: Part I surveys the literature on sociolegal studies, critical race theory, and worker inequality that pertains to temporary migrants. Part II provides the legal and historical backgrounds of the temporary status categories we have chosen for further analysis. Part III describes the empirical data collected in a multisited study of workers with temporary status designations. Part III.A. explains our methodology. Part III.B. summarizes our findings from interviews with migrants in three temporary categories: H-1B visa holders, individuals with TPS, and DACA recipients. Part IV conceptualizes migrant worker experiences within these categories as a process of “immigrant racialization” consisting of two steps. First, the legal design choices of these temporary status categories not only place formal limits on recipients’ time in status (as one might expect for ““temporary” authorizations) but also contribute to recipients’ experiences of social exclusion. Second, racialized notions of deservingness and economic contribution position these marginalized migrants within a historically contingent but dynamic system of racial hierarchy. These steps are mutually reinforcing. In concluding, we explain how the social construction of temporary migrants as outsiders contributes to the ongoing construction of racial hierarchy and economic inequality in the United States. The concluding section reflects on the value of attending to immigrant racialization using empirical studies and suggests directions for future research.
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This study has offered a comparative analysis of how immigration law subordinates temporary migrant workers. Temporary legal categories construct non-White migrants as outsiders. Despite the race-neutral selection criteria for the programs, these non-White migrants are also devalued based on a social process that positions them as inferior in an entrenched hierarchy marked by the historical legacies of race and work in America. This process of immigrant racialization results in their subordination to U.S. citizen workers, which then reinforces the degradation of temporary worker status as a legal category.
Our study contributes to sociolegal studies of inequality in three ways. First, our study delves into the dynamics of how law and society interlock to produce complex structures of exclusion. Sociolegal scholars have demonstrated in multiple settings that law and society are mutually constituted. We build on these insights to show how legal categories for temporary migrants are shaped by social processes and the historical legacies of legal institutions in the workplace. Though this study focuses on three specific categories of migrant workers, future case studies can expand on how additional legal statuses are shaped by immigrant racialization. Concepts like citizen and noncitizen, temporary and permanent, and worker and student are all socially constructed, and their meanings change as domestic race relations and global political economies shift. Comparing three categories of temporary worker experiences gives us a mere taste of how social meanings attached to equality law reinforce exclusion within the United States. Our findings support foundational law and society studies on the meaning of the “good worker,” the “illegal alien,” and the “criminal” by illuminating the social meaning and consequences of being a ““temporary migrant.”
Second, our study contributes to empirical critical studies of race in a migration context. Empirical critical race theorists focus on the construction of race as a way of understanding power and inequality in America. Our empirical study focuses on legal categories that are ostensibly race neutral and that refer to migrants from a range of sending countries with differing racial groups -- most of whom are majorities within their home countries, even if they are minoritized in the United States -- that nevertheless become sorted into domestic racial hierarchies. Our findings support previously developed concepts of the “racialized legal status” of Latine residents of the United States, demonstrating how seemingly race-neutral legal categories disproportionately impact and racialize a variety of non-White migrant groups, including Asians. These findings offer additional support for the conclusion that race remains salient after the introduction of race neutral terminology in the 1964 civil rights laws and the elimination of national-origin quotas in the 1965 immigration reforms. Including multiple migrant categories helps to disaggregate demographic clustering across categories that are almost entirely from Mexico (i.e. H2A or undocumented workers).
More studies can elucidate the minority of experiences of less prevalent racial minorities within a single category (such as credentialed workers on H-1B visas from Latin America, non-Latines with DACA, or TPS holders from Ukraine or other countries typically racialized as White). Our multisited study uses separate studies to cover three legal categories. So doing, it provides a template for examining a wider diversity of immigrant experiences by including structured comparisons of multiple migration statuses, in a way that is attentive to the full spectrum of immigration status categories. Future research could include more worker categories and nonworker categories such as student visas, visas for tourism and personal matters, humanitarian visas, and lapsed temporary visas.
Our third contribution is to the canon of race, labor migration, and law. We study the interrelated processes as well as the intersecting identities of migrants, races, and workers. This leads to our finding that foreign workers experience their daily life in ways marked by intersecting power dynamics within their host country. These power dynamics conform to racial hierarchies that subordinate non-White people. But racial positioning is further complicated by economic contribution and cultural valuations such as prestige, credentialing, and prospects for mobility.
Understanding how law and society interact to exclude non-White temporary workers could improve scholarship and inform more equitable immigration and work policies. The current trend toward migrant restriction extends to temporary workers in ways distinctive from the undocumented migrants who are the most highly publicized targets of restriction. Exclusion targets migrants who enter with lawful temporary status, such as Indian and Chinese credentialed workers whose presence is controlled by economic competition. It toggles between including and excluding those whose temporary protected status can be abruptly changed, such as the Haitian and Central American migrants who become vulnerable to deportation because high-ranking government officials inaccurately assert that their home countries are no longer dangerous. It also threatens DACA recipients, some of whom are now being arrested and removed even as political impasse continues over the effort to grant them more permanent status. Ultimately, understanding how law and society construct temporary workers as outsiders illuminates prospects for inclusion and equity in a global workforce.
Ming H. Chen is Professor and Harry & Lillian Hastings Research Chair at UC Law San Francisco and Faculty-Director of the Center for Race, Immigration, Citizenship, and Equality.
Jennifer M. Chacón is Bruce Tyson Mitchell Professor of Law and Associate Dean for the JD Program at Stanford Law School.
Shannon M. Gleeson is Edmund Ezra Day Professor at Cornell University’s School of Industrial and Labor Relations and Brooks School of Public Policy.
