Over 500 Dynasty foreign workers sue federal officials

Over 500 foreign workers at Tinian Dynasty Hotel and Casino have filed a lawsuit in federal court against Homeland Security Secretary Jeh Johnson and other federal officials over the U.S. Citizenship and Immigration Services denial of the company’s 197 CNMI-only Transitional Worker petitions involving 693 beneficiaries.

Belal Hossain, Wenli Zhong, Pukar Patel, and 500 unknown co-plaintiffs are suing Johnson, USCIS director Leon Rodriguez, and USCIS California Service Center director Kathy A. Baran.

The workers, through counsel Bruce Berline, asked the U.S. District Court for the NMI to declare that USCIS is precluded from relying on a pending criminal case against Hong Kong Entertainment (Overseas) Investments Ltd., which owns and operates the 412-room hotel with casino, as a basis for determining that HKE is not a legitimate employer.

The workers requested the court to declare that the denial of HKE’s CW-1 petitions on grounds that HKE is not a legitimate employer is contrary to and in violation of due process as guaranteed by the U.S. Constitution.

The workers asked the court to declare that USCIS’ disparate treatment of plaintiff Zhong and HKE’s other renewal CW-1 applicants is contrary to and violates equal protection of the laws as guaranteed by the U.S. Constitution.

They moved the court to declare that the USCIS’ implementation, interpretation, and application of the CW regulations and associated policies, written and unwritten, especially as applied to plaintiffs’ CW-1 petitions is contrary to, inconsistent with, and in violation of the Consolidated Natural Resources Act of 2008 (federalization of CNMI immigration).

The workers requested the court to declare that USCIS’ conduct and handling of their CW-1 petitions and USCIS’ denial of their petitions in December 2014 “is arbitrary, capricious, or otherwise contrary to law.”

They sought court’s declaration that USCIS violates the Administrative Procedures Act by utilizing and relying on unwritten rules and policies in its processing and consideration of their CW-1 petitions.

The plaintiffs asked the court to, among other things, enjoin defendants Johnson, Rodriguez, and Baran, and their agents from taking any action or implementing any policy toward them which is “contrary to, inconsistent with or in violation of the Administrative Procedures Act, the WARN Act or any other federal law.”

The workers requested the court to require USCIS to revise the CW regulations so that they comport with the express Congressional intent articulated in the CNRA.

They also asked the court to require USCIS to approve their CW-1 petitions it denied in December 2014.

According to Berline in the complaint filed in court last Wednesday, plaintiff Hossain, a Bangladeshi, has lived in the CNMI for 18 years and started working with HKE in April 2013.

Hossain, 43, is married and is the father of four minor children all of whom are U.S. citizens.

Zhong, 37, a Chinese national, has lived in the CNMI for 15 years and has worked for HKE for over three years. She is employed as an electronics gaming attendant and is the mother of four minor children, three of whom are U.S. citizens.

Patel, 35, a citizen of India, has resided in the CNMI for 11 years. He has worked for HKE as a waiter for over a year now.

Berline said the 500 unnamed co-plaintiffs are foreign workers employed by HKE who are also being adversely and irreparably harmed by defendants.

Berline said defendants Johnson, Rodriguez, and Baran were aware of the fragile economy existing in the CNMI and especially Tinian.

The lawyer said Tinian has a population of only 2,105 based on the 2010 census. He said Tinian, like the other populated islands in the CNMI, is heavily dependent on foreign contract workers given its remote location and small population.

In November 2014, HKE employed approximately 598 employees of whom approximately 497 are foreign contract workers needing governmental work authorization.

CNRA obligates USCIS to administer the CW work authorization scheme in a manner “to ensure that Commonwealth employers have access to adequate labor.”

Berline said CNRA further requires USCIS to administer the non-immigrant work authorization scheme in a manner to “minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of phasing-out the Commonwealth’s nonresident contract worker program and to maximize the Commonwealth’s potential for future economic and business growth.”

Berline said the defendants were aware that the taxes HKE pays to the Tinian Municipality constitute a significant portion of the revenues collected by Tinian and such revenues reduce the CNMI’s burden of funding Tinian.

On Feb. 4, 2013, HKE commenced receiving approvals of some of its petitions granting CW-1 status for the period Jan. 29, 2013 to Jan 29, 2014.

HKE subsequently received approval of 104 petitions covering 559 employees. HKE did not receive any approval for one petition covering 45 waitstaff employees.

Berline said the approvals received in 2013 were based on the petitions HKE submitted in November 2011 for the period 2012-2013.

However, the lawyer said, since USCIS never ruled on the petitions in 2012, the approvals issued covered the period 2013 to 2014.

Shortly after receiving the approvals in March 2013, HKE received a request for evidence for the petition covering 45 waitstaff. HKE timely responded.

Berline said USCIS did not include the 45 waitstaff personnel in any of the CW-1 approvals.

In July 2013, HKE commenced receiving notices of intent to revoke, seeking to rescind the CW-1 approval issued by USCIS in February 2013.

Berline disclosed that the notices of intent sought to revoke approved petitions on grounds that HKE was not a legitimate employer under the CW regulations.

HKE timely filed its response to the notices of intent to deny and to revoke in a single compilation as previously authorized by USCIS.

Berline said USCIS did not take any action on the petitions subject to the notice of intent to revoke until Jan. 2014 when it lifted such notices.

Berline noted that the decision lifting the notices was issued less than one week prior to expiration of the CW-1 status for the employees subject to the notices of intent to revoke.

The lawyer said since the notices of intent to revoke were issued on basis that HKE was not a legitimate employer, USCIS lifting such notices constituted a finding or determination by USCIS that HKE was a legitimate employer for purposes of the CW regulations.

Berline said when USCIS lifted the notices of intent to revoke in January 2014, the case against HKE was pending before in federal court and had been pending before the court since April 2013.

In February 2014, USCIS began issuing notices of intent to deny in connection with the CW-1 renewal petitions filed in January 2014.

The notices sought information relating to payroll, sanitary permits and the Mega Stars transaction.

Mega Stars is a corporation which had entered into an agreement with HKE’s owner to acquire ownership, control, and management of HKE.

Berline said in July 2014, HKE commenced receiving notices of intent to deny with all of its CW petitions filed in January 2014.

Berline said the notices reveal that USCIS again questioned whether HKE was a legitimate employer and the eligibility of HKE’s employees to renew or receive CW-1 status.

The lawyer said they again sought production of information concerning payroll, sanitary permits and Mega Stars.

HKE was given only 30 days to respond, but USCIS informed the company that it was not allowing to submit a compilation response as previously authorized.

Berline said at no time in 2013 or 2014 did USCIS issue notices of intent to deny based on the criminal case against HKE.

Commencing Dec. 8, 2014, USCIS denied all of HKE’s CW-1 petitions.

Berline said for employees seeking to renew their CW-1 status, USCIS denied each of such petition on the principle grounds that Dynasty was not an ineligible employer because of the pending criminal case and each employee was ineligible.

Berline said USCIS allows employees seeking to transfer to work for the proposed employer for the entire time a transfer petition is pending before USCIS even if the date appearing on the transfer employee’s I-94 card had expired.

Berline said the denial of Zhong’s petition for her renewal is a sample of the denial issued to all 419 HKE employees with renewal petitions.

The lawyer said USCIS’ position is that each employee seeking to renew employment with HKE had to stop work and “sit idly” by on Tinian from January 2014 until USCIS ruled on their petitions in December 2014.

Berline said Pukar and the other HKE employees seeking transfer were not deemed to be eligible workers but USCIS denied their petitions on grounds that HKE was not a legitimate employer.