May 02, 2021 Issue: April 2021

MEXICO - Migrant Worker Women from Mexico File First Petition under USMCA Chapter 23 on Labor

By: Tequila J. Brooks, Esq., Washington, DC

Migrant farmworkers Adareli Ponce Hernández and Maritza Pérez Ovando filed the first petition under USMCA Chapter 23 on Labor. The petition was filed with the international office of Mexico’s Ministry of Labor and Social Assistance (Secretaría del Trabajo y Previsión Social – STPS) on March 23, 2021 with the assistance of Centro de los Derechos del Migrante (CDM) and the support of 150 immigrant advocacy groups, labor organizations, and women’s rights organizations across Mexico, the United States, and Canada. Both Ponce and Pérez are from Mexico and have worked in the crawfish and chocolate processing industries in the United States.

The March 23, 2021 petition filed under USMCA Chapter 23 on Labor revises and adapts claims made by Ponce and Pérez and allies in a petition filed under the NAFTA labor side agreement (North American Agreement on Cooperation – NAALC) in July 2016. The 2016 petition was closed without a disposition in July 2020. The core issue in the 2016 and 2021 petitions is systemic sex discrimination in the recruitment, hiring, placement, and working conditions for the U.S. H-2A and H-2B temporary non-immigrant visa programs. The H-2A visa program is for temporary agricultural workers and the H-2B program is for temporary non-agricultural work. The H-2A program provides relatively more benefits and protections to workers (housing, travel, and free legal services) than the H-2B program. Migrant women from Mexico and other countries are generally excluded from participation in both H-2 programs. When migrant women do manage to secure H-2 visas, they tend to be funneled into the H-2B visa program, where employers assign them to less favorable and lower-paid positions than men.

Petitioners argue that the Government of the United States of America has failed to uphold its commitments in USMCA Chapter 23 by failing to enforce existing labor and employment laws prohibiting discrimination in recruitment and hiring on the basis of sex; allowing employers to assign women to less favorable and lower-paid positions; enabling discrimination in the workplace (including sexual harassment and sexual violence); failing to adequately monitor, investigate and enforce violations of U.S. labor and employment law; and failing to adopt high labor standards with respect to the recruitment and employment of women migrant workers in the H-2 visa programs. They further allege that these violations affected trade under USMCA – meaning that if issues raised in the petition are not resolved, the Government of Mexico can initiate proceedings under USMCA Chapter 31 on Dispute Settlement, leading to arbitration and, possibly, trade sanctions against the U.S.

Tequila J. Brooks

Esq., Washington, DC