1

Migratory Federalism in North America after NAFTA

Adriana Sletza Ortega Ramírez

Rafael Velázquez Flores

Content

1. Introduction

2. Regional migrations

3. Migration Policies, national debates and reforms

4. Local governments: federalism & migration issues

5. Conclusions

Abstract

Subnational governments (states, provinces and municipalities) in the North America

Migration System composed by Mexico, the United States and Canada have increased

substantially their policies, programs and regulations on migration due to the growth and

diversification of migratory flows in the transition from XX to XXI century caused by

NAFTA trade liberalization and investment in the region.

The main argument of this paper is that Migratory Federalism in the region is on the

rise because local governments in North America are challenged to re-organize their

communities and deal with the demographic, socio-economic and ethnic diversity posed by

migratory flows and implement various responses to these flows such as restrictive

legislation, selectivity, promoting the integration of migrants and protection of their rights.

Proposals from local alternatives evidence the limitations of unilateral federal policies on

migration in Mexico, the United States and Canada as well as the NAFTA and the

Temporary Guest Worker visas.

1. Introduction

This paper presents the main problems of people cross-border mobility and migration

control in the region of North America considering that the region retains the highest non-

2

authorized number of migrants in the world (10.8 million people in 2011) and there are a

limited international cooperation for migration governance between Mexico, the United

States and Canada.

NAFTA regime since 1994 provides preferential facilities to travel and work for

certain professional workers and investors, and there are some limited number of visas and

work permits for certain seasonal workers most of them in the agriculture sector. Currently,

Mexico, the United States and Canada face their own migratory problems and priorities

regarding transmigration, immigration, asylum y refuge respectively.

In this complex regional context, the actual responses of international migrations are

located in the local arena where migratory contradictions are reflected and the tensions

arise and should be solved. The migratory federalism as the activism of local governments

in this matter reveals that migrations are a pending issue in the national, bilateral and

trilateral agenda of the countries of North America.

In order to describe this state of affairs the text is divided in three sections. The first

one presents broadly the migratory flows in North America. The second considers the

migratory policies, debates and reform possibilities in the three countries. The third,

presents an explanatory model of migratory federalism in the region in order to compare the

local government actions on migration issues in México, Canada and the United States.

2. Regional migrations

The NAFTA agreement since 1994 intended to build a North America region composed by

Canada, the United States and Mexico. Free trade and investment were the main priorities

of NAFTA and labor mobility was considered partially. People, goods and capitals are

basic economical factors. The increasing flow of goods and investment in the three

countries lead to the consolidation of the historical migration corridor between Mexico and

the United States and the rise of Canada as a new destination for Mexican migrants from

1994 to 2009.

3

In the sub-region, the United States and Canada are countries of immigration, accounting

both 50 million of foreign born: 38.5 million in the United States and 7.2 million in

Canada, representing 21 % of its total population. 1

Mexico is a country of historic

emigration with 11.9 million of born Mexicans living abroad, 98% of them in the United

States.

In the world and in the region, the United States are the major pole of attraction of

immigrants, being for Mexicans and Canadians international migrants their principal

destination. According to the data of the World Bank, Mexico-USA migratory corridor is

the largest in the world with 11.6 million of migrants and the migratory corridor Canada-

United States encompass 835 thousand people. 2

Top Migration Corridors, 2011*

*number of migrants, millions.

In Canada, the two larger groups of temporary residents are Americans and

Mexicans. Each year 30 thousand Americans and 18 thousand Mexicans are temporary

residents in Canada . Of those Mexicans in Canada, each year approximately 15 thousand

1 International Organization for Migration (2010). World Migration Report. Geneva: IOM,

http://publications.iom.int/bookstore/free/WMR_2010_ENGLISH.pdf 2 World Bank (2011). Migration and Remittances 2011,

http://siteresources.worldbank.org/INTLAC/Resources/Factbook2011-Ebook.pdf

11.6

3.7 3.6 3.3 2.7 2.6 2.2 2.2 2.2 1.7 1.7 1.7 1.7

4

are seasonal workers in the framework of bilateral SAWP between Canada and Mexico. 3

Canada is the second destination for Mexicans emigrants, after the US. About 95 thousand

Canadian people define themselves as from Mexican Origin or Mexican Background.

Additionally, about 50 thousand Mexicans born in México live permanently in Canada.4

According to Migration System Theory, because of the high volumes of migrant

international mobility, Mexico, the United States and Canada form a regional migratory

system, as proposed by Douglas Massey.5 In the world, there are five regional migratory

systems: North America, West Europe, Persian Gulf, Asia-Pacific and the Southern Cone

of the Americas. Each system is characterized by a solid stability of migration flows

through time and space, in other words, volume, history and corridors define international

migratory systems. In these systems, “the flows of people within these systems parallel

flows of goods, capital, and information that are partially structured by international

politics”6.

The international mobility of economic factors such as land and natural resources,

agricultural products, capital, goods and services are directly correlated. These factors rise

or diminish in a direct proportion. However, the management of these factors mobility

depends on decisions of national and international politics that result in the structure of

political economy of international regions.

Considering international comparison, the migratory system of North America is

older, larger than the rest of migratory systems and built-in just by three countries.

Nevertheless, the circularity of people in the region was included partially in the

negotiations of the North America Free Trade Agreement (NAFTA). The result was the

chapter 16 titled “Temporary Entry for Business Persons”; this chapter proposes to

3 Statistics Canada (2009). Canada – Total entries of foreign workers by source country,

http://www.cic.gc.ca/english/resources/statistics/facts2009/temporary/07.asp 4 Statistics Canada (2009). Facts and figures 2009 – Immigration overview:

Permanent and temporary residents, http://www.cic.gc.ca/english/resources/statistics/facts2009/index.asp 5 Massey, D., et al. (2005) Worlds in Motion. Understanding International Migration at the End of the

Millenium. Oxford, U.K. and New York : Oxford University Press; Massey, D. (2003). Patterns and Processes

of International Migration in the 21st Century. Paper prepared for Conference on African Migration in

Comparative Perspective, Johannesburg, South Africa, 4-7 June, 2003,

http://pum.princeton.edu/pumconference/papers/1-Massey.pdf 6 Massey, D. (2003). Patterns and Processes of International Migration …

5

facilitate the mobility of business persons7 and also certain professionals listed in the

appendix 1603.D.I.8 Consistent with this chapter, the United States creates TN, The Non-

Immigrant Status for NAFTA Professional (TN) for certain professionals of primarily

Canadian or Mexican citizenship who meet the criteria and requirements to work in the

United States under NAFTA. Additionally, TD status is provided to the economic family

dependents of the TN professionals. The U.S. State Department reports annually NAFTA

non-immigrant status as Non-Immigrant Visas Issued. During fiscal year 2011, 8 thousand

NAFTA visas were issued by the U.S. government.9

Other mobility schemes are those for guest workers or seasonal workers in the region. The

United States government issues visas H according the requirements of the Department of

Labor. H1A are dedicated to high qualified workers required in very specialized sectors and

H2A are designated for agricultural seasonal workers and H2B are for non-agriculture guest

workers. Approximately, about 400 thousand Mexican workers use the H visas each year.

In addition, Mexico and Canada, operate jointly the Seasonal Agricultural Workers

Program (SAWP or PTAT in Spanish) since 1974. Mexico has sent during the last decade

between 10 and 15 thousand workers each year to Canada under this scheme.10

Currently,

Canada allows other proportion of Mexicans under a new bilateral scheme called Labor

Mobility Mechanism (LMM) that allows Canadian employers to contract Mexican workers

for up to 4 years in any economic sector and any province. The job offers depend on

Canadian employers and Mexican workers are included in the Temporary Foreign Workers

Program (TFWP) of Canada. Additionally, in Mexico the official recruiter is the Mexican

Secretariat of Labor and Social Welfare (STPS).11

7 The agreement defines business person as someone “who is engaged in trade in goods, the provision of

services or the conduct of investment activities”. 8 “NAFTA, “Chapter Sixteen: Temporary Entry for Business Persons”, http://www.nafta-sec-

alena.org/en/view.aspx?x=343&mtpiID=147#A1601 9 U.S. State Department. (2012). “Nonimmigrant Visas Issued by Classification and Nationality (Including

Border Crossing Cards): Fiscal Year 2011”, http://www.travel.state.gov/pdf/FY11AnnualReport-Table%20XVII.pdf 10 Massey, D. & Brown, A. (2011). New Migration Stream between Mexico and Canada. Migraciones

Internacionales, 6 (1), 119-144, http://www2.colef.mx/migracionesinternacionales/revistas/MI20/MI_20-119-

144.pdf 11 Secretaría del Trabajo y Previsión Social (2012). Labor Mobility Mechanism,

https://simolint.stps.gob.mx/Temporary_Employees/

6

These temporary of seasonal worker programs have been seriously criticized.

Organizations for worker´s rights protection, especially Unions, in both Mexico and

Canada, have complained about the exploitation system that supposes this scheme because

they generated a sub-class of foreign workers that assume heavy labor conditions that

Canadian workers don´t accept, even in condition of “indentured servitude”. 12

Employers

use the foreign workers as a strategy to maintain low wages and the international

competitiveness prices of their products, especially in the agriculture sector. However,

Mexican consular official minimize the complaints and avoid the workers being unionized

because they don´t want to criticize the “successful” SAWP and LMM schemes or even

affect their relations with Canadian authorities. 13

Complaints about the unfair and unequal labor conditions of foreign workers as

seasonal and temporary workers in the United States and Canada are frequently exposed by

human and labor rights organizations, the press and scholars.14

Temporary workers are

vulnerable and dependent of a possible continued contract offered by their employers.

In the case of the United States, H Visas are issued for Mexicans by American

consulates and there is a growing proliferation of private brokers and agencies. Mexican

authorities are not involved in the recruitment and selection of workers; these processes are

left to private agencies. Many frauds are committed by supposed agencies that promise to

get American H visas for a temporary job in the United States. This is unsolved problem in

Mexico-US relations.

Moreover, in the Canada-Mexico relations regarding migration it is important to

mention the controversy over the imposition of the Canadian visa to all Mexicans visiting

Canada since 2009. Prior to that year, Mexicans tourists didn’t need a visa to travel to

Canada. But Canadian government argued that Mexicans caused “a crisis” in its

refuge/asylum –seekers system, because during 2008, Mexicans did more than 9,400

12 UFCW Canada, Report on the Status of Migrant Workers in Canada 2011, Toronto, Ontario. 13 “Ordenaron SRE y STPS a consulado en Canadá hacer una campaña antisindical”, La Jornada, lunes 19 de

marzo de 2012, http://www.jornada.unam.mx/2012/03/19/politica/015n1pol 14 Canadian Council for Refugees, http://ccrweb.ca/en/migrant-workers; Hennebry, J. (2008). Bienvenidos a

Canadá? Globalization and the Migration Industry Surrounding Temporary Agricultural Migration in Canada,

Canadian Studies in Population, 25 (2), pp. 339-356; Preibisch, K. (2012). Migrant Workers and Changing

Work-place Regimes in Contemporary Agricultural Production in Canada, International Journal of Sociology

of Agriculture & Food,19 (1), pp. 62–82.

7

refugee and asylum claims in Canada, representing 25% of all claims received by Canadian

authorities. Of all refugee/asylum claims by Mexicans, 90% were found to be false. From

2005 to 2008, Mexican requests were trebled from about 3 thousand 400 during the year

2005 to 9 thousand 400 in year 2008. As a result, in the following year the Canadian visa

for Mexicans tourist was imposed; and during year 2009 Canadian authorities just received

159 refugee/asylum claims by Mexicans.15

In order to complete the broad outlook of the migratory flows in North America, is

necessary to mention the people who travels in the region for temporary tourism and

business. In Mexico, the Americans and Canadians are the largest groups of foreign

nationals as temporary visitors. During 2010, 17 million Americans and 1.46 million

Canadians visited Mexico. In the other hand, in the United States, the largest foreign

visitors are Canadians and Mexicans.

Between Canada and the United States, the flows of tourists and visitors are bi-

directional. Approximately, the total numbers of Americans visiting Canada are equal to the

total of Canadians visiting the United States: 14 million people. In Canada, Americans are

the most important foreign group of visitors, British and Japanese are the following.

Similarly, the Canadians tourist’s main traveling destinations are: the United States, Great

Britain and Mexico.16

Even though NAFTA formally don´t intend to facilitate a high mobility of people

just business people, investors and certain professionals (NAFTA visas –TN and TD-

issued by the United States government), in practice the three countries -Mexico, the

United States and Canada- have been forced to rather facilitate the tourism and the

temporary travel between the three countries because of the increasing volumes of intra-

regional visitors and tourist flows in North America since 1994. Although, each country

applies unilateral migratory controls and the regional priority of security.17

15 Citizenship and Immigration Canada (2009). Backgrounder. The visa requirement for Mexico,

http://www.cic.gc.ca/english/department/media/releases/2009/2009-07-13.asp 16 Statistics Canada (2007). Travel and Tourism, http://www41.statcan.gc.ca/2007/4007/ceb4007_000-

eng.htm 17 Tras los atentados del 11 de septiembre de 2011 y la imposición de la agenda estadunidense en materia de

seguridad internacional sobre sus vecinos México y Canadá, entre los tres países existe cada vez más

8

The most restricted migration in the region is for labor with low and medium

qualifications, where Mexico has a comparative advantage, while Canada and the United

States prefer to limit and select through the schemes of foreign temporary and guest

workers. Visas and work permits for those temporary workers are issued according to the

demand in the labor market and certain specific sectors.

Summarizing, in North America trilaterally the schemes for people mobility across

the borders are limited by NAFTA. Bilaterally, just Canada and the Mexico cooperate

through the SAWP and the new “Labor Mobility Mechanism” even though both depends

on the Canadian employer’s offers to Mexican workers. In the region, dominates the

unilateral management of the people flows, national policies, regulations and control in

each country. The result is a regional migratory panorama with high volumes but

segmented, differential and problematic because of the irregular migrations between

Mexico and the United States.

3. Migration Policies, national debates and reforms

In North America, patterns of international cooperation on migration flows are very

limited, only exist visas NAFTA as a trilateral initiative and the SAWP and LMM as

bilateral migratory schemes by Canada and Mexico. However, in the three countries are

deep discussions on migration issues often controversial and exacerbated in the context of

the global economic crisis since 2008.

The main migration issues for the three countries are as follows:

a) In Canada, federal migratory policy focuses on attracting high qualified and

educated immigrants. However, in the Canadian economy persists a high demand of

workers of technical and low qualification. Most of the immigrants in Canada are

coordinación en materia de seguridad fronteriza, controles anti-terroristas y uso de bases de datos migratorios

con información personal de los viajeros. En esta área hay cooperación a dos velocidades, Canadá y Estados

Unidos cooperan intensamente incluso en territorio canadiense opera personal de inmigración y aduanas

estadunidense que certifican el arribo a los Estados Unidos antes de que personas o mercancías realmente

estén territorio estadunidense. Con México la cooperación es más restringida. Las autoridades estadunidenses

solamente cooperan con las mexicanas a través de inteligencia y uso compartido de bases de datos para el

control anti-terrorista y la seguridad fronteriza.

9

legal. However, there is an estimation around 200 thousand of non-status

immigrants in Canada, 50% of them living in Ontario and including 10 thousand

people working in the building and construction sector. Precarious migratory status

according to Luin Goldring et al.18

is one of the main problems in Canada.

In the United States there is about of 10.8 million of unauthorized immigrants using the

official data of the Homeland Security Department.19

In contrast, in the European Union the

number or irregular immigration is calculated between 1.9 and 3.8 million people.20 Since

the 9/11/2001 terrorist attacks the United States government had increased migratory

controls and reinforced security in customs and immigration. Additionally, proposals of a

“comprehensive immigration reform” had been postponed and even bills such as the

DREAM Act that would help to regularize the immigration status to young undocumented

immigrants who had been studying in the United States and AgJOBS (the Agriculture Job

Opportunities, Benefits and Security Act) for undocumented agricultural workers. As a

result, there is a proliferation of local initiatives and laws from cities, countries and states

regarding migration and immigrants.

b) In México, emigration is the main problem. There are an increasing number of

detentions and deportations of Mexicans by the northern border, between 200 and

300 thousand each year, as well as an increasing number of Mexicans leaving

Mexico because of violence. Besides there is a “humanitarian crisis” with transit

migrants as victims of kidnapping, robbery, extortion, rapes and murdering. The

mass murder of 72 immigrants from Central and South America in Tamaulipas in

August 2010 is just an example of the current situation. National Commission of

Human Rights (CNDH) reported 11 thousand kidnapping of migrants during 2010.

18 Luin Goldring, Carolina Berinstein, C. & Bernhard, J. (2009). Institutionalizing precarious migratory status

in Canada”. Citizenship Studies, 13 (3), 239-265. 19 Hoefer, M., Rytina, N. & Baker, B. (2011). “Estimates of the Unauthorized Immigrant Population Residing

in the United States: January 2010, Population Estimates, Department of Homeland Security, February,

http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2010.pdf 20 Kovacheva, V. & Vogel, D. (2009). The Size of the Irregular Foreign Resident Population in the European

Union in 2002, 2005 and 2008: Aggregated Estimates. Database on Irregular Migration, Hamburg Institute of

International Economics, http://irregular-

migration.hwwi.de/typo3_upload/groups/31/4.Background_Information/4.7.Working_Papers/WP4_Kovachev

a-Vogel_2009_EuropeEstimate_Dec09.pdf

10

21 Mexico has been forced to attend a hearing before the Committee of Protection of

the Rights of All Migrant Workers and their families of the United Nations because

of the mass killings in San Fernando Tamaulipas during August 2010 and the later

discovery in 2011 of mass graves with 193 corpuses in the same region of transit to

the United States, which presumably included migrants.

In the United States, both President Bush and President Obama had recognized that

America has a “broken migration system” because of the high bureaucracy to get legal

permanent residence & citizenship but also the high number of unauthorized immigrants

already in the United States. Since 2001, both administrations had tightened the security

control as well as an increasing number of deportations, from 165 thousand in year 2002 to

396 thousand in 2011. Additionally, the National Guard is deployed in the border with

Mexico to reinforce “border security”. Those measures, however, do not solve the central

problem that there are over 11.2 million “unauthorized” immigrants in the United States

and the debate on what are the elements that must contain the so called “immigration

reform”.

The last major “immigration reform” in the United States occurred in 1986 with the

Immigration Reform and Control Act (IRCA) that legalized 2.7 million undocumented

immigrants and to numerous siblings who are still benefiting from this legalization, which

is the reason why the opponents of a new “amnesty” reject an immigration reform similar

to IRCA.

Meanwhile, the government if Mexico is lobbying from a minimalist and “low profile”

perspective and avoids being interventionist in the U.S. political process in favor of the

legalization of undocumented immigrants in the United States. However, in the domestic

arena, in order to be in a better moral position against the United States to demand respect

21 Comisión Nacional de los Derechos Humanos (2011). Informe Especial sobre secuestro de migrantes en

México, http://www.cndh.org.mx/sites/all/fuentes/documentos/Index/InfEspecialSecuestroMigrantes_8.pdf

11

for the rights of migrants, in May 2001, Mexico adopted its first Federal Migration Law 22

in order to lay the groundwork for a national migration policy.

This law updates the legal framework in the field, simplifying administrative

procedures especially for foreigners living in Mexico. Usually they go through a long

bureaucratic-administrative process in order to prove they have a legal residence in the

country and a long path to their naturalization; their treatment depends heavely on their

economic and social class. However, the discussion on that law in 2010 between

government authorities and civil society organizations created an atmosphere of debate in

necessary institutional reforms to prevent the continued and systemic rights violations of

foreigners in Mexico as well as of migrants passing through Mexico.

The transmigrants had to go by a long overland crossing to meet its goal of reaching

the United States and suffer discrimination, abuses, rights violations, arbitrariness of

various police corporations and they have become victims of kidnapping, extortion, torture

and killing by organized crime gangs. The new Mexican Federal Migration Law recognized

the rights of all migrants (emigrants, immigrants, returnees and transmigrants). However,

until today is not clear that law itself will solve the structural violence against migrants in

Mexico.

In Canada, on the other hand, there is a continuing labor demand of low-skilled

immigrants and the federal government takes steps to reduce the possibility of an increase

in irregular migration. This was the main reason why the Non-Immigrant Visa was imposed

to Mexicans in order to travel to Canada. Mexicans have the potential to be a majority

group of migrants, as occurred currently in the United States. To obtain Canadian Visa,

Mexicans must pass a rigorous examination of original documents, and pay $150 Canadian

dollars, that most Mexicans intending to stay in Canada without documents can’t afford to

waste under the high possibility of being rejected.

The heart of the debate in Canada about immigration is the differentiation of

immigrants in terms of rights and access to services. Differentiation relates to migratory

status, race and gender. People “without status” or “precarious status” are a sub-class in

22 Ley de Migración (2011), http://www.diputados.gob.mx/LeyesBiblio/pdf/LMigra.pdf

12

Canada with high vulnerability. In Canada, the process of the “adjustment of status” is

continuous. Since 2004 there is a regularization program “Humanitarian and

Compassionate” (H & C) that allows people to adjust immigration status. However, the

possibility of being regularized under this program is 5%. In the other hand, the current

economic crisis is likely to reduce the spaces of greater opportunities for immigrants and

their children.

The well-being of immigrants in Canada relates with their integration and access to

services. However, the access to public services is determined by immigration status. For

example, in Ontario health services are available only to legal immigrants if he/she is

eligible for Ontario Health Insurance (OHIP). There are Community Health Centers

(CHCs) for uninsured people, but only providing basic emergency health services and some

laboratory tests, additionally have long waiting lists. People holding a tourist or student

visas can’t access to health services in these Community Health Centers. And the children

of people with tourist visas can´t enter into the school system. A common strategy used by

people who want to stay in Canada is to overstay and lost their status in order to declare

without immigration status and gain access to school in some cities.

4. Local Governments, Federalism and Migration

In practice, local governments (states, provinces, cities, counties and municipalities) in

North America are coping with the problems of migration in each of their countries. In the

United States, this is more visible due to the lack of resolution of high volumes of

undocumented migration at the federal level and given the persistent high number of

immigrants in the last three decades, state governments as well as cities and counties have

been establishing ruling on migration and immigrants even beyond its constitutional

functions. 23

23 La sección 8, artículo 4 de la Constitución establece que el Congreso de los Estados Unidos tendrá

facultad para establecer un régimen uniforme de naturalización de los inmigrantes. Y la sección 9, artículo 1

señala que el Congreso de los Estados Unidos a partir de 1808 podrá prohibir la inmigración y la importación

de personas. Ambos artículos, revocan estas facultades a los estados y las otorgan al poder legislativo federal.

Varsany, M. (Ed.) (2010). Taking Local Control. Immigration Policy in U.S. Cities and States. Stanford,

California: Stanford University Press.

13

In the United States, since 2005 an increasing number of bills regarding migration

issues were introduced in state legislatures. During 2005, 300 bills were introduced and the

number rise to 1,562 bills during 2007. 24 In the past couple years, in 2010 and 2011, 1,400

and 1,607 bills were introduced respectively. A majority of these bills didn´t become law.

During 2010 and 2011, approximately each year from the total of initiatives 200 became

law, between 10 and 20 were vetoed and approximately 120 resolutions were approved. 25

These data reveals how sub-national governments are strongly reacting to

international immigration in the United States in many different areas of their competence,

such as required valid IDs to undocumented migrants, driver’s licenses, employment,

education, health, utilities, legal services, local security, election and voting rights,

cooperation with federal authorities and even in trafficking not only as a federal crime, but

also as a state and local offense.

In Canada, immigration federalism reveals that there is a clearer division between

the jurisdiction of the federal and provinces government on migration issues. Ottawa is in

charge of control and the selection of immigration, as well as the mechanisms and permits

of legal residence of immigrants. In each province, except for the territories, there are

offices for immigrants and new citizens and through civil society organizations (community

organizations) implement programs and provide services to immigrants and their families.

These community organizations provide services for immigrants sponsored by different

tiers of government and private founds as well.

The federal government has the formal jurisdiction on the definition of migration

policy and its operation under the point system, except the province of Quebec that

historically has had its own immigration policy parallel to that of Ottawa and its own point

system. The Quebec government had implemented its own regularization processes for

certain immigrants, such as the Special Procedure for Haitians Regularization residing in

24 Morse, A. (2009). Política de inmigración en Estados Unidos. En Figueras, E. (Ed.) La Incidencia local

como parte de una estrategia migrante binacional. Memoria de la Reunión de legisladores estatales y

organizaciones civiles México-Estados Unidos, Morelia, Michoacán, 27 y 28 de agosto de 2009,

http://www.iniciativaciudadana.org.mx/images/stories/incidencia.pdf 25 National Conference of States Legislatures (2012). State Laws Related to Immigration and Immigrants,

http://www.ncsl.org/issues-research/immig/state-laws-related-to-immigration-and-immigrants.aspx

14

Quebec in 1981, and in 2002 the Special Procedure for Algerians Regularization living in

Quebec.

All provinces and most of the territories, except the Northwest Territories, have

immigration offices, most of them Ministry or Department. The function of these offices is

to provide services and implement programs to new immigrants and their children.

Newcomers settlement programs, language programs, interpreter services, job training,

child support, are their main tasks.

Additionally, Canadian provinces and territories collaborate with the federal

government to nominate persons to immigrate to Canada according to the requirements of

labor of the provinces through the Provincial Nomination Program (PNP). Each province or

territory can establish the number of immigrants required as well of the labor categories.

Each PNP is different, because it is an agreement between the province or territory and the

federal government and it is designed as required. The labor categories most commonly

required are: qualified immigrants (professionals), international student or international

graduated and business immigrants.

In the case of Mexico, given that the majority of migratory volume is the emigration

flow, a large majority of the states (29 of 32) have state offices for migrants. Most of them

focused in the relationship with their émigrés in order to provide documentation services of

civil registration, support and legal advice to migrants and their families, investment of

remittances, counseling and temporary work visas in the U.S. and Canada, founding

hometown associations, etc.

Each state offices of migration in Mexico try to target the requirements of the state

migration phenomenon (emigration, immigration, transmigration, returnees, etc.). For

example, in the case of Chiapas, the Ministry of Development of Southern Border and

Liaison for International Cooperation, has three focus groups: Chiapanecos abroad, Central

American migrants and Guatemalans temporary workers in Chiapas. In the case of Sonora,

for example, the Sonora´s Office for International Migrant focus on offering services for

Mexicans and Central Americans deported along the border with Arizona. And in the case

of Mexico City, on the one hand the primary care group are migrants outside the capital

15

which are a very diverse diaspora and, on the other hand, the various immigrant groups in

the Mexican capital, ranging from the historical diasporas in Mexico City such as the

Spaniards to groups with high vulnerability such as Haitian refugees after the 2010

earthquake, the humanitarian catastrophe and the subsequent health problem.

Constitutionally in the three countries, international migrations is a matter of federal

jurisdiction only for the national government because involve foreign policy and

international relations with other countries. But in practice, in response to inefficient or

insufficient federal action and the limited international cooperation schemes between the

three countries with different migration flows, states/provinces and localities also are

responding to their own international migrations and the presence of foreigners in its

territory.

Considering migratory federalism, distinct areas, models and issues define the

interactions between the different tiers of government regarding migration flows and

migrants. The major areas are: migratory criteria, migratory enforcement, migrant´s human

rights and benefits; and three models of federalism: hegemony of the central government,

cooperative federalism and devolutionary federalism. 26

Additionally, different issues regarding migration and migrants correspond to the

jurisdiction of each tier of government. The federal government usually is responsible for

migrant admission, migratory status, naturalization, employment permissions, family

reunification and deportation. State and provincial governments are responsible for

education programs, health services and social security, in some cases also, access to

employment and labor market. Localities and cities governments are responsible of

housing, public transportation and security, and also local programs of education, health

and employment for migrants in order to promote their integration and social cohesion.

Consequently sometimes, there are issues such as education, health, employment and social

security of share jurisdiction between state/provincial and local governments.

26 Spiro, P. (2001). Federalism and immigration: models and trends. International Social Science Journal, 53

(167), 67-68, http://onlinelibrary.wiley.com/doi/10.1111/issj.2001.53.issue-167/issuetoc

16

The following matrix, inspired in the work of Peter Spiro27

but modified to be more

comprehensive considering different migratory flows (immigration, emigration,

transmigration and returnees), illustrate the possible interactions and disputes regarding

migration issues in the different models, areas and issues. In the model “central government

hegemony” there are undersized spaces for action of the local governments. In model of

“cooperative federalism”, national government retains most of the control and enforcement

but cooperates with provincial/states and local government to determine volumes,

establishes agreements and decide in collaboration regarding migration issues. In

devolutionary federalism, states/provinces and local government exercises complete

authority.

Matrix of Migratory Federalism

Models

Areas

Central government

hegemony

Cooperative

Federalism

Devolutionary Federalism

Migration Criteria National government

sets migration levels

and criteria.

National levels and

criteria supplemented by

sub-unit input.

Sub-units sets migration

levels and criteria.

Migration

Enforcement

National government

executes all border

control and interior

enforcement.

National governments

maintains primary

responsibility, as

supplement by

voluntary subunit

contributions; and/or

control of targeted

migration.

Sub-units enforce migration

controls.

Migrant Rights and

Benefits

All rights and social

services set at national

level; sub-units are not

permitted to

discriminate against

not citizens.

National governments

sets the floor on rights

and benefits, but allows

some discretion by sub-

units to use migratory

status as eligibility

criteria.

Sub-units are not

constrained by national

government (but may be by

international law).

Source: Peter Spiro (2001) but modified.

27 Spiro, P. (2001). Federalism and immigration…

17

Considering the matrix in North America region, Mexico has a more centralized

model of migratory federalism, in other words, the central government exercises more

prerogatives on migration issues. Legal criteria and bureaucracy process are determined by

the federal government without any process of consultation with sub-national governments.

The same applies to migratory control and enforcement because it is reserved to federal

government. And the local and state governments are formally prohibited to accomplish

federal responsibilities such as deportation, although informal collaboration may occur.

The area of human rights and migrant benefits is the only one where Mexican states

and local governments are more active implementing programs and providing services.

Since the year 2000, programs and services for migrants has become common in the state

governments. And in recent years, the legislation, regulations and procedures to implement

migrants access to state programs and services. In Mexico City, a Law of Interculturality

and Human Mobility was approved on 2011 and includes obligations for public officials

about no to discriminate by migratory status as an obstacle to provide services to migrants

and their incorporation to public programs provided by the city. None other state legislation

in Mexico explicit the rights of migrants to access to public services and programs, but the

federal migration law establishes that education and health services shouldn´t be denied for

any migrant. In addition to Mexico City, Michoacán, Chiapas and Durango had approved

recent laws recognizing rights for migrants and their families.

In the case of Canada, a model of cooperative federalism prevails on migration

issues. The federal government in Ottawa retains the power to design and implement the

Canadian migratory policies, except for Quebec, that exercises its own parallel migratory

policy. The case of Quebec has been used by the rest of the provinces and the territories to

demand a role in the design and implementation of federal migratory policy. The

mechanism of Provincial Nomination Program (PNP) allows that provinces and territories

participate in the setting of immigration criteria and conciliate with federal government

their interest, needs and migratory workers preferences.

In the second area of migratory federalism, the migratory enforcement, it is reserved

to Canada’s federal authorities. Canadian Sub-national governments such as provinces,

territories and localities (municipalities and cities) do not have a jurisdiction about it.

18

However, in practice sub-national governments assume that all immigrants in Canada are

legal; in order to provide services for an immigrant is necessary to demonstrate their legal

migratory status. Although sub-national authorities do not remit non-status immigrant to

federal authorities, because it is not a responsibility they assume. In this issue, cooperation

or collaboration with federal authorities is limited, in contrast to what occurs in the United

States. But the main reason is that the majority of volumes of immigration to Canada are

legal and the federal authorities exercise a generally efficient migratory control to avoid

increasing illegality.

In the area of migrant rights and benefits, in the Canadian case a “collaborative

federalism” of “complementary federalism” takes place. Provinces, territories and localities

provide benefits and services to immigrants either directly or through community

organizations, including the protection of their human and labor rights, assuming that the

Canadian federal authorities should accomplish migratory criteria, enforcement, control of

the process of naturalization and migratory status. So, the sub-national governments take

over their tasks to facilitate the integration of immigrants through offices, programs and

services sponsored by the provinces and territories as well as the main cities attracting

immigrants: Toronto, Montreal and Vancouver. Access to health services, education,

access to labor market, training for employment, language training, cultural and religious

activities to preserve heritage and identities of migrants, benefits for housing and public

transportation, all of these issues are in the jurisdiction of sub-national units in Canada.

In the case of the United States, the “formal” model of migratory federalism is the

hegemony of central government. However since 2005 as a response to the inefficient

migratory and border control by the federal authorities, some states and cities justify their

legislation and policy regarding migration and immigrants. As a result, high tension and

conflict characterizes the relations between the federal government and some states and

cities. Polarization also rises between some states and cities that are implementing anti-

immigrant legislation and policies but at the same time, some cities and states declare

themselves as “sanctuary” or “immigrant friendly”.

Those states and cities that in recent years are approved their own migratory laws

and policies are asserting “devolution” of their faculties regarding migration issues. As the

19

U.S. Constitution disposes before 1808 migratory regulations were defined by the states; in

this base some states are claiming the devolution of their powers prior-1808.

What are the dispute areas between the federal government and the states? The area

of immigration criteria is not a dispute area. In the case of the United States, criteria are

defined only by the federal authority without consultation with the states. The dispute areas

are enforcement, migrant’s rights and benefits. In the case of Arizona, counties such as

Maricopa and the state legislation approved in the recent years directly conflicts the federal

jurisdiction regarding deportation powers, the arbitrary questioning by local and state police

about migratory status and the denial of basic services such as education for undocumented

immigrants which results in challenging the constitutional boundaries between the state and

federal powers.

The U.S. federal government is challenging the most anti-immigrant laws in courts

on the base of unconstitutionality. Federal judges had blocked some provisions of these

laws and case by case, and provision by provision are being revised by courts. In the past

months the most controversial has been Alabama HB 65, Hammon-Beason Alabama

Taxpayer and Citizen Protection.28

Alabama founded this law in the impact of the not lawfully aliens as a burden to

taxpayers. The primary concern it raised is that undocumented immigrant children are

attending to schools. Even though, the law do not prohibit provide education to these

children, it requires that the State Board of Education accurately measures and assess the

population of these students. 29

In the original version this law included provisions such as the prohibition that

undocumented immigrants receive any state or local public benefits, prohibition of

transportation and harbor of undocumented immigrants, prohibition for undocumented

immigrants to apply for jobs. It mandates that contracts made with a person who is an

illegal immigrants would be null and void. Also it mandates that if police have a

“reasonable suspicion” that a person is an undocumented immigrant, police can do

reasonable attempt to determine that´s person legal migratory status. It mandates to all

28 Alabama H56, Act No. 2011-535 (2011), http://www.ncsl.org/documents/statefed/AlabamaH56.pdf 29 Alabama H56…

20

employers in Alabama the use of the federal E-verify system to accomplish with the federal

Immigration Illegal Immigration Reform and Immigrant Responsibility Act of 1996. In the

last months, five provision of this law was blocked by three federal courts. 30

But not all cases in the migratory federalism in the United States are conflicted. In

fact, the federal government had promoted extensive cooperation of the Attorney General,

the Homeland Security Department and the U.S. Customs and Immigration Services with

state and local governments. The federal agencies had sign Memorandums of

Understanding, agreements and partnerships with state and local governments to train and

collaborate to investigate with local authorities in the cases of undocumented immigrants,

an also to promote the use of the E-verify system. This federal electronic system is used by

employers to determine the eligibility of an employee to work in the United States and

supposes to be a voluntary program.31

However in some states and cities had become

mandatory by state and local laws, such as the Alabama HB 56. The E-verify program

validates the social security number of the employee in order to avoid that non-authorized

immigrant workers with false social security numbers were contracted.

Contrasting migratory federalism in the U.S., Mexico and Canada, it is remarkable

that in the case of the United States the arena is contested between open conflict and

cooperation between the federal government and the state and local authorities, and there’s

an increasing pressure from a “formal” model of federal government of central hegemony

towards a devolutionary federalism model.

In a summary view, migration issues supposed to be a “federal issue”, however in

practice, local governments (states, provinces, cities, counties and municipalities) in North

America are dealing with the migratory problems in each country. Sub-national

governments are strongly reacting to international migration either to constrain immigration

or to help migrants and protect their rights and access to public services, through legislation

or policies. Migratory federalism raises the question about what local governments could

do regarding immigration issues.

30 Alabama H56… 31 E-verify Program, http://www.dhs.gov/files/programs/gc_1185221678150.shtm

21

There are constitutional boundaries and exclusive immigration procedures reserved

to federal authorities, however what local governments do directly affects the daily lives of

migrants, because they can provide or deny public services used by migrants. Local

governments can facilitate the integration of migrants or make them life impossible. In

practice, these governments can have their own migratory policy rather in coordination or

in conflict with central government. Respecting their constitutional limitations or

challenging them.

5. Conclusion

North America migratory system presents high volumes of transborder mobility both legal

and irregular. The system is highly segmented and differential to distinctive categories of

migrants. Trilaterally the people’s mobility schemes are very limited and are managed

unilaterally. North America Free Trade Agreement (NAFTA) grants preferential treatment

to the circulation and cross border mobility of investors, business people and some

professionals which represent very little volume of the labor mobility in the region.

NAFTA or TN visas, to certain professionals listed in the agreement of 1994, are issued

only by the U.S. government to some Canadians and Mexicans professionals, in practice

trilateralism transform into unilateralism. Facilitate and increase trade and investment is the

priority of NAFTA region, not people’s mobility.

As a systemic constrain, the fact that the United States is the major pole of attraction

of world and regional migration cause that its migration policies and regulations became

predominant in North America migratory system, including the priorities of security and

border control that the United States had imposed to Mexico and Canada. American

migratory priorities, policies and regulations are dominant in the region.

Bilaterally, Mexico and Canada operate jointly the SAWP and a new Labor

Mobility Mechanism (LMM) for temporary workers; and the United States had increased

the number of visas H. The scheme of temporary workers, that probably will expand in the

future, had been highly questioned by unions and labor right’s defense associations.

22

Ultimately, these workers are used to maintain low wages in non-qualified jobs and key

sectors such as agriculture, in order to maintain the international competitiveness of the

products through a law wage system of foreigner workers. 32 This logic increases even more

when undocumented or unauthorized immigrant workers are contracted because they are

willing to accept even worst labor and wage conditions.

The problem of unauthorized and irregular immigration is persistent in the United

States: 10.8 million unauthorized immigrants lived in the United States in the year 2011.

The policy of deportations conducted by the administration Bush and Obama had caused

that the highest score of unauthorized immigration in year 2007 with 11.8 million was

reduced in 1 million people in just three years.34

However, the stock of unauthorized

immigrants remains the highest in the world.

The contradictions of the regional migratory system are reflected in the local arena.

This occurs in the context of the federal political system in the three countries and results in

an increasing sub-national public policy action regarding migration issues. Formally,

migration should be a federal matter; however, in the federalism there exist a scope for sub-

national action.

The major area reserved for federal government is execution, migratory control and

final enforcement. However, federalism allows a leeway for sub-national migratory actions

regarding migration criteria and volumes in cooperation with the federal authorities. The

major area for state and local actions is that regarding migrant rights, benefits and public

services for migrants. The federal government can mandate guidelines; however migrant

rights, benefits and access to direct services are mostly determined by sub-national

governments. Housing, transportation education, health and employment are issues

determined mostly by local authorities. And they can rather facilitate or difficult the daily

lives of migrants. Sub-national governments can execute their own migratory policies

32

Piore, M. (1980). Birds of Passage: Migrant Labor and Industrial Societies. Cambridge, UK: Cambridge

University Press. 34

Hoefer, M., Rytina, N. & Baker, B. (2011). “Estimates of the Unauthorized Immigrant Population Residing

in the United States: January 2010, Population Estimates, Department of Homeland Security, February,

http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2010.pdf

23

rather coordinated or in conflict with the federal government, challenging constitutional

limitations, assuming partially the migratory governance in the region.

References

Alabama H56, Act No. 2011-535 (2011),

http://www.ncsl.org/documents/statefed/AlabamaH56.pdf

Amnistía Internacional (2011). Día internacional del migrante: México sigue sin proteger a

las personas migrantes, http://amnistia.org.mx/nuevo/2011/12/15/dia-internacional-del-

migrante-mexico-sigue-sin-proteger-a-las-personas-migrantes/

Citizenship and Immigration Canada (2009). Backgrounder. The visa requirement for

Mexico, http://www.cic.gc.ca/english/department/media/releases/2009/2009-07-13.asp

Canadian Council for Refugees, http://ccrweb.ca/en/migrant-workers;

Comisión Nacional de los Derechos Humanos (2011). Informe Especial sobre secuestro de

migrantes en México,

http://www.cndh.org.mx/sites/all/fuentes/documentos/Index/InfEspecialSecuestroMigra

ntes_8.pdf

E-verify Program, http://www.dhs.gov/files/programs/gc_1185221678150.shtm

Goldring, L., Berinstein, C. & Bernhard, J. (2009). Institutionalizing precarious migratory

status in Canada”. Citizenship Studies, 13 (3), 239-265.

Hennebry, J. (2008). Bienvenidos a Canadá? Globalization and the Migration Industry

Surrounding Temporary Agricultural Migration in Canada, Canadian Studies in

Population, 25 (2), 339-356.

Hoefer, M., Rytina, N. & Baker, B. (2011). “Estimates of the Unauthorized Immigrant

Population Residing in the United States: January 2010, Population Estimates,

Department of Homeland Security, February,

http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2010.pdf

International Organization for Migration (2010). World Migration Report. Geneva: IOM,

http://publications.iom.int/bookstore/free/WMR_2010_ENGLISH.pdf

Kovacheva, V. & Vogel, D. (2009). The Size of the Irregular Foreign Resident Population

in the European Union in 2002, 2005 and 2008: Aggregated Estimates. Database on

Irregular Migration, Hamburg Institute of International Economics, http://irregular-

24

migration.hwwi.de/typo3_upload/groups/31/4.Background_Information/4.7.Working_Pa

pers/WP4_Kovacheva-Vogel_2009_EuropeEstimate_Dec09.pdf

Ley de Migración (2011), http://www.diputados.gob.mx/LeyesBiblio/pdf/LMigra.pdf

Massey, D. & Brown, A. (2011). New Migration Stream between Mexico and Canada.

Migraciones Internacionales, 6 (1), 119-144,

http://www2.colef.mx/migracionesinternacionales/revistas/MI20/MI_20-119-144.pdf

Massey, D., et al. (2005) Worlds in Motion. Understanding International Migration at the

End of the Millenium. Oxford,UK and New York: Oxford University Press.

Massey, D. (2003). Patterns and Processes of International Migration in the 21st Century.

Paper prepared for Conference on African Migration in Comparative Perspective,

Johannesburg, South Africa, 4-7 June, 2003,

http://pum.princeton.edu/pumconference/papers/1-Massey.pdf

Morse, A. (2009). Política de inmigración en Estados Unidos. En Figueras, E. (Ed.) La

Incidencia local como parte de una estrategia migrante binacional. Memoria de la

Reunión de legisladores estatales y organizaciones civiles México-Estados Unidos,

Morelia, Michoacán, 27 y 28 de agosto de 2009,

http://www.iniciativaciudadana.org.mx/images/stories/incidencia.pdf

National Conference of States Legislatures (2012). State Laws Related to Immigration and

Immigrants, http://www.ncsl.org/issues-research/immig/state-laws-related-to-

immigration-and-immigrants.aspx

North America Free Trade Agreement, Chapter Sixteen: Temporary Entry for Business

Persons (1993), http://www.nafta-sec-

alena.org/en/view.aspx?x=343&mtpiID=147#A1601

Ontario Council of Agencies Serving Immigrants (n.d). The Regularization of Non‐Status

Immigrants in Canada 1960‐2004,

http://www.ocasi.org/status/Regularization_booklet.pdf

Pew Hispanic Center (2011). Unauthorized Immigrant Population: National and State

Trends, http://pewhispanic.org/files/reports/133.pdf

Piore, M. (1980). Birds of Passage: Migrant Labor and Industrial Societies. Cambridge,

UK: Cambridge University Press.

Preibisch, K. (2012). Migrant Workers and Changing Work-place Regimes in

Contemporary Agricultural Production in Canada, International Journal of Sociology of

Agriculture & Food,19 (1), 62–82.

25

Provincial Nomination Program (n.d.), http://www.canadavisa.com/provincial-nomination-

program.html

Secretaría de Relaciones Exteriores, Consulado en Toronto. (2012) Labor Mobility

Mechanism, http://consulmex.sre.gob.mx/toronto/index.php/es/labour-mobility-

mechanism

Secretaría del Trabajo y Previsión Social (2012). Labor Mobility Mechanism,

https://simolint.stps.gob.mx/Temporary_Employees/

Spiro, P. (2001). Federalism and immigration: models and trends. International Social

Science Journal, 53 (167), 67-68,

http://onlinelibrary.wiley.com/doi/10.1111/issj.2001.53.issue-167/issuetoc

Statistics Canada (2007). Travel and Tourism,

http://www41.statcan.gc.ca/2007/4007/ceb4007_000-eng.htm

Statistics Canada (2009). Canada – Total entries of foreign workers by source country,

http://www.cic.gc.ca/english/resources/statistics/facts2009/temporary/07.asp

Statistics Canada (2009). Facts and figures 2009 – Immigration overview:

Permanent and temporary residents,

http://www.cic.gc.ca/english/resources/statistics/facts2009/index.asp

U.S. State Department. (2012). “Nonimmigrant Visas Issued by Classification and

Nationality (Including Border Crossing Cards): Fiscal Year 2011”,

http://www.travel.state.gov/pdf/FY11AnnualReport-Table%20XVII.pdf UFCW Canada, Report on the Status of Migrant Workers in Canada 2011, Toronto,

Ontario. Varsany, M. (Ed.) (2010). Taking Local Control. Immigration Policy in U.S. Cities and

States. Stanford, California: Stanford University Press.

Velázquez, R. & Ortega, A. (2010). Políticas Públicas de los gobiernos subnacionales de

México en asuntos de migración. En Schiavon, J. y Durand, J (Eds.) Perspectivas

migratorias: Un análisis interdisciplinario de la migración internacional (449-551).

México DF: CIDE.

World Bank (2011). Migration and Remittances 2011,

http://siteresources.worldbank.org/INTLAC/Resources/Factbook2011-Ebook.pdf