DHS: ‘First-to-file system’ is used to decide CW-1 cap

The U.S. Department of Homeland Security has denied it has not developed a method for allocating and determining the number of CW-1 cap, saying its “system for allocating” is the first-to-file basis.

U.S. Department of Justice Office of Immigration Litigation assistant director Glenn M. Girdharry, counsel for DHS Secretary Jeh Johnson and co-defendants, pointed out that the Commonwealth Utilities Corp. and its 13 CW-1 workers are incorrect that DHS “has not developed a method, or a system, for allocating and determining the number of CW-1 permits that are to be issued each fiscal year.”

On the contrary, Girdharry said, DHS’ “system for allocating” CW-1 permits to CNMI employers is on a first-to-file basis, without regard to occupational category, until the cap is exhausted—citing the testimony of U.S. Citizenship and Immigration Services District 26 Director David G. Gulick.

Girdharry discussed the issue in Johnson’s and co-defendants’ reply on Tuesday in support of their motion to dismiss CUC’s lawsuit.

Girdharry said this “system” is based on DHS’ reasonable interpretation of its ambiguous regulations governing the CW-1 transitional worker program that are not plainly erroneous or inconsistent.

Girdharry said the “system” falls squarely in line with Congress’ intent under the Consolidated Natural Resources Act that DHS provide the CNMI with as much flexibility as possible to maintain existing businesses and maximize economic and business growth while phasing-in federal responsibilities over immigration and mandating the reduction of CW-1 permits to zero before the end of the transition.

He said DHS’ procedure—or “system”—of allocating approved CW-1 permits on a first-to-file basis, without regard to occupational category, is a product of the agency’s interpretation of its ambiguous regulations.

“Because DHS’ interpretation is not plainly erroneous or inconsistent with its regulations, the court should defer to the agency’s interpretation as controlling,” Girdharry said.

The lawyer said the meaning of the agency’s regulations with regards to how DHS “allocates” approved CW-1 permits to qualifying employers seeking foreign workers each fiscal year is ambiguous because it is not entirely free from doubt.

For instance, Girdharry said, the Final Rule indicates that “the CNRA requires the system for allocating permits to be issued to prospective employers,” because “it would be inconsistent with [48 U.S.C. Section 1806(d)(2)] to grant CW status without an employer requesting it for a worker.”

Girdharry said DHS’ regulations define the specific “occupational categories” that qualify for CW-1 status.

“But the meaning of the regulations leave doubt with regard to how the agency intended to connect these two parts of the CW-1 program together to allocate approved CW-1 permits to qualifying employers seeking workers in those categories each year,” he said.

Girdharry said with regards to how DHS allocates approved CW-1 permits, therefore the agency’s regulations are ambiguous.

CUC counsel James S. Sirok has likened Gulick’s and his team’s decision to reduce the CW-1 cap to a magician pulling a rabbit from a hat.

Citing the CW-1 cap for fiscal year 2016, Sirok said there was no information reported in the Federal Register or brought to the attention of the court through Gulick’s testimony to show why the reduction number had to be 1,000 versus 1 or 2 or 10 or 100 or even 2,000.

“Mr. Gulick and his team merely pulled the reduction number of 1,000 out of thin air to enlighten and humor the populace of the CNMI, and its political leaders, in the same manner a magician pulls a rabbit from a hat,” the lawyer said.

Through their first amended complaint, CUC and 13 of its CW-1 workers are asking the court to provide declaratory and injunctive relief preventing Johnson and co-defendants from enforcing the CW-1 cap.

The plaintiffs argued, among other things, that the manner and process used in the past and being currently utilized by DHS to arrive at the cap number is arbitrary, capricious, and an abuse of the DHS secretary’s limited discretion.

Johnson and co-defendants moved to dismiss the amended complaint. They argued, among other things, that the DHS secretary has unfettered discretion to set the cap in any manner and make it applicable to the CW-1 petitioning process.

Sirok said U.S. District Court for the NMI Chief Judge Ramona V. Manglona recognized that the CNRA requires the DHS secretary to “establish, administer, and enforce a system for allocating and determining the number and terms and conditions of permits.”

Sirok said the DHS secretary has not developed a method, or a system, for allocating and determining the number of CW-1 permits that are to be issued each fiscal year.

CUC employs over 300 workers, including 42 nonresident workers.

Plaintiffs are suing Johnson and others for not acting on their CW-1 permit renewals. 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.

Sirok alleged that the failure of USCIS to make a determination on the CW renewal petitions violates the Administrative Procedure Act.

Sirok alleged that the DHS secretary has failed to comply with the requirements of the CNRA in setting the annual cap for CW-1 transitional workers for fiscal years 2013 through 2016 without first establishing and administering a regulated “system” and taking into consideration various statutory standards prior to adopting and publishing the cap.