Manglona intends to dismiss CUC lawsuit over CW-1 permits delay

U.S. District Court for the NMI Chief Judge Ramona V. Manglona has expressed her intent to dismiss the lawsuit filed by the Commonwealth Utilities Corp. and its 18 foreign workers against Homeland Security Secretary Jeh Charles Johnson and other federal officials, once the final rule on Commonwealth-only worker, or CW-1 permits, has gone into effect on Feb. 14, 2016.

In an order issued on Friday, Manglona said if CUC and its 18 foreign workers object to dismissal of their lawsuit over the delay of CUC’s petition for renewal of CW-1 permits, even in light of publication of the final rule, they may file a memorandum in opposition to dismissal no later than Jan. 22, 2016.

If an opposition memorandum is filed, the judge said, Johnson and co-defendants may file a response no later than Jan. 29.

Manglona noted that last Jan. 13, the federal government announced that the final rule “Enhancing Opportunities for H-1BI, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants,” which amends the regulations so as to authorize continued employment for CW-1 nonimmigrants if a petitioner has timely filed a petition requesting an extension of stay, is scheduled to be published in the Federal Register on Jan. 15, 2016, and will be effective 30 days from the date of publication.

Manglona said it appears that implementation of these changes in the regulations will prevent a recurrence of the harm that CUC complains of in the lawsuit.

As of last Wednesday, 17 of 18 foreign workers who joined CUC’s lawsuit, have received approvals of petition for renewal of their Commonwealth-only worker, or CW-1 permits.

CUC counsel James Sirok said, however, the utilities agency also has one non-plaintiff foreign employee whose authorization expired on Dec. 31, 2015, and is not working.

Sirok said CUC has received a request for evidence for this non-plaintiff foreign employee.

Sirok said this request for evidence further delays a determination on the petition for renewal.

Last Jan. 12, Manglona ordered CUC and the 18 workers to explain why their lawsuit should not be dismissed as moot.

Manglona issued the order as she granted plaintiffs’ motion for withdrawal for a preliminary injunction. She also granted plaintiffs’ request to vacate the hearing on the motion for preliminary injunction set for Jan. 21.

In plaintiffs’ response, Sirok asserted that the lawsuit should not be dismissed as moot because the issue raised—loss of employment authorization during the pendency of the employer’s petition for an extension of CW-1 status—is likely to recur as other employees’ CW-1 permits come up for renewal.

Sirok said there is still a justiciable issue as not all CUC CW-1 employees whose authorizations expired on Dec. 31, 2015, have received permits.

Sirok said there will be further petitions for renewals submitted by CUC this year and in the following years.

CUC currently employs 34 nonresident workers holding the CW-1 CNMI only non-immigrant transitional worker status.

Sirok said CUC will be continuing to petition for the renewal of its CW-1 workers until the Transitional Worker Program created by the Consolidated Natural Resources Act ends on Dec. 31, 2019, or until the utilities agency, through an apprenticeship program or because of other intervening circumstances, is no longer required to be reliant on the continued employment of a single CW-1 worker.

Two weeks ago, Manglona denied the request of CUC and 18 of its affected foreign workers for a temporary restraining order that would allow these CW-1 workers to immediately return to work.

Manglona said plaintiffs, however, may still pursue their claim for a permanent injunction.

Sirok then filed plaintiffs’ first amended complaint against the same defendants—Homeland Security Secretary Johnson, Immigration and Customs Enforcement Director Saarah Saldana, and U.S. Citizenship Director Leon Rodriguez.

In the first amended complaint, Sirok added a claim that plaintiffs are able to work after the expiration date of their respective authorizations so long as the authorizations remain valid in accordance with law.