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CUC, 13 affected foreign workers sue DHS secretary, others over CW-1 cap
Sirok says CUC adversely affected by loss of CW-1 workers
The Commonwealth Utilities Corp. and its 13 foreign workers affected by the CNMI-only Transitional Worker (CW-1) cap filed yesterday a lawsuit in federal court against U.S. Department of Homeland Security Secretary Jeh Charles Johnson, U.S. Immigration and Customs Enforcement Director Sarah R. Saldana, and U.S. Citizenship and Immigration Services Director Leon Rodriguez.
CUC and the 13 workers, through counsel James S. Sirok, alleged that the failure of USCIS to make a determination on the CW renewal petitions violates the Administrative Procedure Act.
The plaintiffs alleged that they have suffered a legal wrong because of the conduct of defendants DHS and USCIS in setting the annual CW-1 caps for fiscal years 2013 through 2016.
Sirok said CUC will be adversely affected by the loss of these CW-1 workers in its ability to maintain and operate its power generation facilities on Saipan, Tinian, and Rota.
Sirok asked the U.S. District Court for the NMI to declare that the failure of USCIS to render a determination on the CW-1 renewal petitions for the 13 workers was unlawful, contrary to law, and in violation of plaintiffs’ constitutional rights.
He sought the court’s order to enjoin defendants Johnson, Saldana, and Rodriguez, and their subordinate officers and agents from implementing or enforcing or taking any adverse action against CUC and the 13 workers by not allowing the workers to work for the utilities agency and instead requiring them to depart the CNMI during the pendency of this lawsuit.
The CW-1 permits for each of the 13 workers expire at different dates during the months of June, July, August, and September 2016.
Sirok said CUC has timely filed petitions with the USCIS for a renewal of status prior to the expiration of the 13 workers’ respective CW-1 permits.
On June 17, 2016, CUC received notices from DHS and USCIS that the CW-1 petitions were returned to CUC without a decision being made.
The reasons cited were that USCIS has received a sufficient number or Form I-129CW petitions to reach the FY 2016 cap; the May 5, 2016 was the final receipt date for CW-1 worker petitions requesting an employment start date before Oct. 1, 2016; and the petitions arrived at the California Service Center after May 5, 2016 and do not qualify for exemption from the CW-1 cap.
Sirok said seven CW-1 workers have been required to stop working for CUC and return to the Philippines.
The remaining six CW-1 workers will also be required to stop working for CUC and return to their home countries during the months of July, August, and September 2016.
CUC employs 33 CW-1 workers.
The lawyer requested the court to declare that the manner in which the DHS secretary computed the annual numerical limitation for CW-1 workers for fiscal years 2013 through 2016 was arbitrary, capricious, an abuse of discretion, not in accordance with the Consolidated National Resources Act, contrary to plaintiffs’ constitutional rights, and without observance of the procedure required by the CNRA.
DHS set the CW-1 caps for FY 2013 at 15,000 and for FY 2014 at 14,000. For FYs 2015 and 2016, the caps were set at 13,999 and 12,999, respectively.
Sirok asked the court to declare that other defendants’ actions were arbitrary, an abuse of discretion, not in accordance with the CNRA, contrary to plaintiffs’ constitutional rights, and without observance of the procedure required by the CNRA.
Sirok cited the actions such as the failure of DHS secretary to establish, administer, and enforce a system for determining the number of CW-1 permits to be issued on an annual basis for FYs 2013 through 2016; the failure of DHS secretary to consider the comments and advice of the CNMI governor when determining the number of CW-1 permits to be issued on an annual basis for FYs 2013 through 2016; and the failure of DHS secretary to consider the adverse economic and fiscal affects and maximize the CNMI’s potential for future economic and business growth when determining the number of CW-1 permits to be issued on an annual basis for FYs 2013 through 2016.
The lawyer also cited the failure of DHS secretary to establish, administer, and enforce a system for determining the number of CW-1 permits to be issued on an annual basis for FYs 2013 through 2016, which was not based on a method or criteria which encourages or promotes the maximum use of workers otherwise authorized to work in the U.S.
He said the DHS secretary instead used a system based on a method and criteria which provides priority within the CW-1 worker grouping and promotes the further use of alien workers employed in the construction industry to work in the CNMI for a temporary period within the Commonwealth over those CW-1 workers, such as the 13 workers, who have raised families and have been continuously living, employed, and working for the same employer for several years.
Last January, CUC and its 18 affected foreign workers sued Secretary Johnson and the same co-defendants over the delayed renewals of CW-1 permits.
CUC and the 18 workers agreed to dismiss their lawsuit the following month after the workers subsequently received approvals of petition for renewal of their CW-1 permits.
