Sirok: USCIS CW-1 regulation results in preferential treatment

The Commonwealth Utilities Corp. has stated that the U.S. Citizenship and Immigration Services’ regulation and policy on the CNMI-only Transitional Workers (CW-1) nonimmigrant visa program have resulted in unequal and preferential treatment.

CUC legal counsel James S. Sirok pointed out that the manner in which CUC is restricted in filing its renewal petitions for its 13 CW-1 workers results in unequal treatment of it and its petitions, as well as the individual workers.

Sirok said this is because those CW-1 petitions, which can be filed during the beginning of a fiscal year, will not be affected when the CW-1 cap number is reached during the middle or ending months of a fiscal year as will CUC’s petitions.

USCIS regulation restricts the filing of a CW-1 petition to no earlier than six months prior to the expiration of the CW-1 status or prior to the actual need for the beneficiary’s services in the case of a new hire.

Sirok explained the alleged USCIS preferential treatment in CUC’s and their affected CW-1 workers’ opposition to Department of Homeland Security Secretary Jeh Johnson’s and co-defendants’ motion to dismiss the lawsuit filed by CUC and its 13 affected CW workers for not acting on their CW-1 permit renewals.

Sirok said the utilities agency is required to wait and file its petitions for renewal of the CW-1 petitions during the months of July through September of a fiscal year.

“It demonstrates that for FY 2016, when the CW-1 cap was reached in early May 2016, those petitions filed from six months out and up through the first month of the 2016 fiscal year (Oct. 1, 2015), received preferential and unequal treatment allowing for approval of said petitions, as compared those petitioners who had to wait until December 2015 and further into the middle of 2016 fiscal year to file their petitions,” he said.

Sirok said as a result of the preferential treatment, because of the filing restriction rule, CUC and its affected CW-1 workers were treated unequally.

He said these petitions were rejected, and CUC’s CW-1 workers lost their jobs as compared to those petitioners and CW-1 workers whose status expiration dates came earlier in the fiscal year.

Sirok said CUC and its affected CW-1 workers have alleged generally in their original complaint that the conduct and actions of DHS and USCIS are contrary to the due process rights of plaintiffs.

The lawyer said DHS’ conduct in setting the 2013 to 2017 annual CW-1 cap numbers is reviewable under the Federal Administrative Procedure Act.

Sirok said the Consolidated Natural Resources Act gives the District Court a meaningful standard against which to judge DHS’ exercise of whatever discretion it may be empowered with for the purpose of computing the annual CW-1 cap number.

Sirok said DHS failed to comply with the CNRA requirement to publish by regulation its annual numerical limitation number and to follow the APA requirement to first publish the numerical limitation number as proposed and provide opportunity for public comment prior to its adoption and implementation.

He added that DHS failed to publish the adopted cap number 30 days prior to its effective date.

Johnson and co-defendants’ position is that APA expressly precludes judicial review of DHS’ administration of the CW-1 visa cap because it is an agency action committed to agency discretion by law.

CUC employs over 300 workers, including 42 nonresident workers.