Immigration law makes Idaho sheepherders vulnerable to exploitation. We can fix it | Opinion

The Statesman’s Aug. 23 article on the working conditions for sheepherders in Idaho accurately depicts the long-standing problems with the H-2A visa program that permits ranchers to bring in foreign workers to herd sheep.

The H-2A program covers both farmworkers and sheepherders. Most of the H-2A farmworkers come from Mexico and most of the sheepherders come from Peru.

While H-2A farmworkers face many of the same problems the sheepherders face, the problems of the herders are compounded by the fact that they work most of the year in isolation far from any town. They are completely dependent on the rancher for all necessities.

They have nowhere to turn for help when major problems arise. These problems include lack of access to medical care, insufficient or poor-quality food, lack of clean drinking water, inadequate shelter, and unpaid wages.

In the worst instances, there are ranchers who confiscate the workers’ passports and use violence or threats of violence to coerce workers to stay on the job despite deplorable conditions.

At present, I am assisting fourteen Peruvian sheepherders to obtain T visas as a result of being victims of labor trafficking on ranches in Arizona, Nevada and Idaho.

The basic problem with the H-2A program is that the worker can work only for the employer who obtains the visa. If the worker complains about illegal working conditions or unpaid wages, the employer can send the worker back home or not bring the worker back in future years. Some H-2A employers frequently remind the worker of these realities.

Employers sometimes send workers injured on the job back home to avoid a workers’ compensation claim and the costs of feeding the worker while he recovers and cannot work.

In my thirty years representing farmworkers and sheepherders in Idaho, I have discussed these problems countless times with H-2A workers. When a worker calls to find out what they can do about unsafe or poor working conditions, I explain that I can assist them in making a complaint to the U.S. Department of Labor (USDOL).

As the employer will be able to figure out who made the complaint, the worker understands that making a complaint means the rancher will likely send him back home and most certainly will not bring him back the next year. While the regulations prohibit retaliation, insufficient staff resources mean the USDOL rarely fines the ranchers.

The USDOL and the Idaho Department of Labor (IDOL) have the power to bar ranchers from the H-2A program for repeated violations, but they rarely take that action. As there are very few U.S. workers who want these difficult, low-paying jobs, debarment from the program means the rancher will be unable to find workers and would have to cease operations.

It is unlikely that USDOL and IDOL enforcement actions will increase any time soon. One potential solution is the Farm Workforce Modernization Act of 2023, a bill with bipartisan support in Congress. A wide-ranging reform of the H-2A program, the bill contains provisions important to both employers and workers.

One provision creates a pilot project for portable visas for certain H-2A workers in which the worker would have 60 days to find another registered H-2A employer if he decides to leave his initial employer. If the worker could transfer to another H-2A employer when the conditions were bad, the employer would have a greater incentive to abide by the regulations in order to keep workers.

Another important part of the bill is a path to citizenship for the workers. If the H-2A worker completes a certain number of hours under the program, he can become eligible for certified agricultural worker status. If he then works a certain number of hours over a period of years with that status, he can apply for lawful permanent residence.

This would give the H-2A workers a strong incentive to come back year after year and would ensure the ranchers and farmers a steady supply of workers. Under current law, immigrants who have completed five years as a lawful permanent resident can apply for citizenship.

Erik Johnson is a labor law attorney in Nampa, Idaho, specializing in agricultural worker issues. He has been representing H-2A sheepherders and farm workers since 1993.