Medieval Farm Labor Practice OK'd by USCIS

By David North on March 23, 2012
And there were in the same country shepherds abiding in the field, keeping watch over their flock by night.
— Luke 2:8.

The worker has been, literally, out in the wild and living in a trailer or tent seven days a week, 365 days a year. He does it in all kinds of weather.

He's been guarding a valuable herd of sheep, helping with their births, tending their every need, and fighting off varmints. Sometimes, for months on end, he rarely sees another human being.

He's been doing this for at least three consecutive years, now. He has been paid at the handsome rate of $750 a month (plus groceries and free rent on that trailer.)

Does he deserve a couple of months off the range?

That's the question that faced USCIS recently regarding nonimmigrant sheepherders, and the resounding response of the usually pro-worker Obama administration was a thunderous: "Not Yet!"

A Little Background. To be fair to Obama, the U.S. government has for decades supported the ancient labor practices of the sheep industry, which in the American West likes to move sheep from winter quarters in the valleys to high mountain pastures to feed on largely government-owned grass in the summer. And to be further fair, that grass probably would not have been consumed had the sheep not been there; it would be an otherwise unused economic resource. In the fall the migration is reversed.

But to continue this migratory sheepherding practice, the industry says it needs migratory alien workers because for some strange reason American workers do not clamor for these jobs, with their low pay and grim working conditions.

The industry decades ago relied on Basques (from Spain) to do this work, but Spain grew too prosperous, so the ranchers turned to less prosperous rural reaches of Mexico, Peru, and Mongolia for their work force. Most members of this workforce cannot speak English and have little opportunity to improve their linguistic skills — the sheep, after all, are not fluent in English either.

Government data on the size of the population are not available, but others have estimated that there are about 1,500 nonimmigrant sheepherders in the country at any given time.

My ire is raised not only by the latest decision re-affirming these ancient lord-and-peasant rules, but by the way USCIS reports them.

The most recent USCIS announcement says:

USCIS announced today that it had extended an accommodation for H-2A workers in the sheepherding industry to transition to the three-year limitation of stay requirements.

"Accommodating" workers to do something previously not permitted makes it sound like you are doing them a big favor. Not so.

What is really happening is that the ranchers are being allowed to keep the sheepherders from having a presumably unpaid vacation for another seven months. It is the ranchers who are being accommodated, for they can now keep the alien workers in the fields and mountains for much longer than they could before the announcement.

The sheepherders, of course, have the right to leave their jobs. That means that they become instant illegal aliens and ruin all employer contacts that they have. When a sheepherder from Mongolia, for example, deals with a rancher it is not like a recent Harvard MBA talking about a job at Goldman Sachs, so the nominal rights of the sheepherders remain just that, nominal.

The Most Recent Decision. Back in December 2008 USCIS decided, sensibly, and based on a congressional report, that there was no need for sheep ranchers alone among agricultural employers to be exempt from rules limiting H-2A visas to three years. From January 17, 2009, forward, according to a final rule, in the Federal Register, the visas would last for three years and then workers had to return to their home countries for three months before applying for another visa.

But the ranchers were granted a huge concession at that time. No matter how long the sheepherders had been on the range, the three-year period was to start for all of them on January 17, 2009. The agency called it a "one-time accommodation" in its press release at the time.

Ranchers were furious despite the concessions. It meant that they would have to actually recruit workers once every three years — not easy given the nature of the job and the wages. I suspect that there was much dragging of feet and calling of senators.

Time passed.

The departure deadline for the sheepherders under the new rule was to have been on January 16, 2012. But USCIS announced on March 20, 2012, that it was going to extend the "one-time accommodation", providing a new deadline of August 16, 2012.

So the nearly indentured sheepherders, perhaps in the United States for a decade, and certainly here since January 17, 2009, can look forward to a mandatory unpaid three-month vacation at the end of this summer — unless USCIS decides to provide yet another "one-time concession".

Some of the H-2A sheepherders have had their three months back home, and have either decided to try another line of work or re-upped with their old employer, but that sequence of events occurred without the help of our government.

Allow me some far-out thoughts about these matters.

First, the alien sheepherders kept in near-bondage are in a contractual situation somewhat akin to — but at the other end of the pay scale from — that of professional football players. Further, these are two work forces of about the same size; there are about 1,500 sheepherders and when the 32 NFL teams each have 55 players on their rosters, there are 1,760 ball players.

Further, sheepherders are all members of ethnic minorities (Hispanics and Asians) as are most of the footballers. Wouldn't it be a nifty lateral from one group to another if the players' union offered a little technical assistance and muscle to the sheepherders?

The football players know all about free agency, and that status certainly would do wonders for the sheepherders' lives.

Second, with that metaphor in mind, why doesn't the government give the ranchers an offer that they would surely refuse: "Here's a permanent and one-time fix for all your labor problems, a green card for each and every one of your sheepherders. All you have to do is to hold on to your labor force. No more visas will be issued in the future."

Note that sheepherders earn $750 a month in most states and $1,422 a month plus rustic housing and groceries in California, while some other farm workers are paid much more. In Montana, for example, the prevailing wage for farm workers is around $2,000 a month, but the H-2A program has not — or not yet — hindered the free movements of the labor market in those other occupations, such as irrigators and tractor drivers.

For more information on the sheep ranchers' labor market practices generally, see an excellent, three-year-old article in the New York Times and a previous blog of mine.