As of Wednesday, 17 of the 18 Commonwealth Utilities Corp.’s foreign workers that joined CUC in suing Homeland Security Secretary Jeh Charles Johnson and other federal officials for the delay in the renewal of their Commonwealth-only worker, or CW-1 permits have received approvals of their petition.
CUC counsel James Sirok said the utilities agency has one non-plaintiff foreign employee whose authorization expired on Dec. 31, 2015, and is not working. CUC received a request for evidence for this non-plaintiff foreign employee, he said, which further delays a determination on the petition for renewal.
The lawyer disclosed on Wednesday, among other things, the update on CUC’s petition for renewal of their CW-1 workers in their response to the federal court’s order to show cause.
On Tuesday, U.S. District Court for the NMI Chief Judge Ramona V. Manglona ordered CUC and the 18 workers to explain why their lawsuit should not be dismissed as moot.
Manglona issued the order after granting the plaintiffs’ motion to withdraw their petition for a preliminary injunction. She also granted the plaintiffs’ request to vacate the hearing on the motion for preliminary injunction.
In his response, Sirok said there is still a justiciable issue as not all CUC CW-1 employees whose authorizations expired on Dec. 31, 2015, have received permits.
Sirok said there will be further petitions for renewals submitted by CUC this year and in the following years.
More importantly, Sirok said, what CUC has sought—and continues to seek under its amended complaint—is a declaration from the court that the position being taken by DHS and USCIS is contrary to law.
The lawyer said this declaratory relief is not moot, and would not be moot even if USCIS had provided all of its foreign employees with approvals of its petitions for renewal.
“While, in this instance, there is no longer a need for preliminary injunctive relief, and because the utility will continue to petition for the renewal of its CW-1 workers in the future, there is still a need within the utility for a decision clarifying whether its CW-1 workers can continue to work after the expiration of their authorizations while USCIS is still adjudicating their petitions.”
Sirok said the fact that a preliminary injunction has become moot does not itself mean that the case as a whole should be dismissed.
The lawyer noted that during the temporary restraining order hearing, Manglona suggested that had CUC filed its petitions for renewal of the CW-1 plaintiff’s authorizations 90 days in advance rather than on Dec. 28, 2015, it probably would not have needed to be in court requesting relief.
However, Sirok pointed out, there was no evidence presented by Johnson and co-defendants that that would have been the case.
Further, Sirok said, the evidence that was before the court, via CUC acting executive director Gary P. Camacho and in the newspaper reports on the day of the TRO hearing, made it clear that employers in the CNMI and the many hundreds of their CW-1 workers, together with the economy of the CNMI, were suffering from the inaction of USCIS when petitions for renewal had been filed 90 or more days in advance of the expiration dates.
Sirok said the situation had reached such a level that Gov. Ralph DLG Torres wrote the U.S. President about the issue.
Sirok said CNMI Delegate Gregorio Kilili C. Sablan (Ind-MP) even visited the processing facilities where these petitions are being adjudicated in efforts to get these many hundreds of unemployed CW-1 workers back to work.
CUC currently employs 34 non-resident workers that hold the CW-1 CNMI only non-immigrant transitional worker status.
Sirok said CUC will be continuing to petition for the renewal of its CW-1 workers until the Transitional Worker Program created by the Consolidated Natural Resources Act ends on Dec. 31, 2019, or until the utilities agency, through an apprenticeship program or because of other intervening circumstances, is no longer required to be reliant on the continued employment of a foreign worker.
Simply put, Sirok said, each of the plaintiffs continue to have an interest in ensuring that DHS and USCIS comply with the relevant provisions of the U.S. Administrative Procedure Act and their regulations related to the CW-1 Transitional Worker Program.
Sirok said each of the plaintiffs also have an interest in ensuring that the U.S. Immigration and Customs Enforcement does not enforce a stop work order during the period of time a petition for renewal is pending past the expiration date stated on their CW-1 authorizations.
Sirok earlier told Saipan Tribune the case is not dismissed because he only withdrew the motion for injunctive relief as it is no longer needed.
Sirok said their injunctive relief request was based on their need for immediate and preliminary injunctive relief related to the CW-1 workers’ ability to work for CUC during the pendency of USCIS’ review of their CW-1 petitions for the renewal of their CW-1 statuses.
Last week, Manglona denied the request of CUC and 18 of its affected foreign workers for a temporary restraining order that would allow these CW-1 workers to immediately return to work.
Manglona said plaintiffs, however, may still pursue their claim for a permanent injunction.
On Thursday, last week, Sirok also filed plaintiffs’ first amended complaint against the same defendants—Homeland Security Secretary Johnson, Immigration and Customs Enforcement Director Sarah Saldana, and USCIS Director Leon Rodriguez.
In the first amended complaint, Sirok added a claim that plaintiffs are able to work after the expiration date of their respective authorizations so long as the authorizations remain valid in accordance with law.
The first amended complaint retains the plaintiffs’ two original claims—that the position of USCIS violates the Administrative Procedure Act and that the position by DHS and USCIS violates the Article II, Section 3 constitutional obligation of the executive to take care that laws are faithfully executed.