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Gulick admits DHS did not follow CNMI governor’s advice on CW-1 cap
USCIS director, however, says late governor Inos’ views were considered in good faith
U.S. Citizenship and Immigration Services District 26 Director David G. Gulick admits that the Department of Homeland Security did not follow then-CNMI governor Eloy Inos’ advice to reduce the previous year’s CNMI-only transitional workers (CW-1) permits by a nominal one or to 13,998 for Fiscal Year 2016 cap.
Nonetheless, Gulick says Inos’ views were considered in good faith in DHS’ decision on the FY 2016 CW-1 cap of 12,999.
Gulick discussed CW-1 visas in his Aug. 18, 2016 declaration filed in the U.S. District Court for the NMI on Saturday. The declaration is being attached to support DHS Secretary Jeh Johnson’s and co-defendants’ brief in opposition to the Commonwealth Utilities Corp.’s and its affected 13 foreign workers’ motion for preliminary injunction.
CUC and its 13 CW-1 workers are suing Johnson and others for not acting on their CW-1 permit renewals.
Plaintiffs CUC’s and 13 CW-1 workers’ motion for preliminary relief will be heard on Sept. 9, 2016 at 9am.
In his declaration, Gulick said while the ultimate decision as to each year’s CW-1 cap is a decision made by the DHS secretary in his discretion as authorized by the Consolidated Natural Resources Act, DHS has fully considered in good faith any advice provided by the CNMI governor with respect to the cap.
With respect to FY 2016 CW-1 cap of 12,999 at issue, Gulick said when DHS was considering that decision, he spoke to the governor, the late Eloy Inos, by telephone on July 2, 2015, and again in person at his office in Saipan on July 8, 2015, to obtain his views regarding the cap.
Gulick said Inos’ advice was to reduce the FY 2015 cap of 13,999 by a nominal one, or to 13,998.
Ultimately, Gulick said, in the exercise of its broad discretion to carry out its statutory obligation to annually reduce the numerical cap ultimately to zero, and after due consideration of the governor’s comments in conjunction with other applicable factors, DHS did not set the cap for FY 2016 at the specific number proposed by Inos.
Gulick pointed out that he is aware that plaintiffs’ complaint alleges that DHS has failed to consider advice and comments by the CNMI governor in setting the annual CW numerical limitations.
“This allegation is not correct,” he said.
Aside from Johnson, plaintiffs are also suing U.S. Immigration and Customs Enforcement Director Sarah R. Saldana, and U.S. Citizenship and Immigration Services Director Leon Rodriguez.
Plaintiffs’ counsel James Sirok alleged that the failure of USCIS to make a determination on the CW renewal petitions violates the Administrative Procedure Act.
Sirok alleged that plaintiffs 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 court 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.
CUC employs over 300 workers, including 42 nonresident workers.
Sirok said the foreign workers’ work force within CUC is an essential and necessary work force needed for the utility to provide power, water, and wastewater utility services to the CNMI.
In Johnson’s and co-defendants’ brief in opposition, U.S. Department of Justice Office of Immigration assistant director Glenn M. Girdharry said plaintiffs have failed to show a compelling likelihood of success on the merits of their claims for relief under the Administrative Procedure Act.
Girdharry said plaintiffs seek an end-run around the DHS secretary’s exclusive authority to establish the cap and instead seek regulation by court order.
Girdharry said plaintiffs also failed to show that irreparable harm will result absent court intervention.
“Indeed, plaintiffs have failed themselves created the imminent harm they seek to enjoin by failing to expeditiously file the extension petitions in compliance with well-established agency guidance or make efforts to recruit domestic workers to fill CUC’s most critical jobs,” he pointed out.
Girdharrry said plaintiffs have not offered any specific allegation regarding the critical need for these particular employees and, in fact, the record suggests that CUC is operational in their absence.
“Plaintiffs’ attempt to avoid the inevitable is not a reason to disregard Congress’ directive or to set aside the secretary’s considered judgment. The public interest favors compliance with federal mandates,” he said.
On the FY 2016 CW-1 visas cap issue, Girdharry said DHS explained that it reached this determination (a 7.2 percent reduction) in order to provide “a meaningful reduction that aids DHS in the implementation of the mandated cap reductions to zero over the transition period,” while accommodating “continued economic growth within the CNMI.”
He said DHS also indicated that before reducing the numeral limitation by 1,000 visas, it considered the effect “that any reduction in the number of CW-1 workers available will have to account for new investments and the expansion of existing businesses in order to support such economic growth.”
Thus, Girdharry said, DHS arrived at the 12,999 figure by taking the actual need for nonimmigrant workers in FY 2015 and factoring in potential increased need for additional workers in FY 2016 (to “accommodate continued economic growth within the CNMI that might result”).
