Since 1970, the share and number of immigrants coming into the United States has increased rapidly. As a consequence of this, so have USCIS and the Department of Homeland Securities interactions with the rising immigrant population. While many have a smooth and, relatively, painless process, this is not the same for everyone. For some individuals, the process of entering the United States, whether on a non-immigrant or immigrant basis, is one that could initially land them into a situation with the immigration courts. In this instance, it is imperative that individuals who may be experiencing this know how to procure evidence about their interactions with USCIS from the agency, starting with one of the most important acts to know, the Freedom of Information Act.
The Freedom of Information Act (FOIA) is an act that provides the public with the right to request access to records from any federal agency. In short, it is a law that allows the patrons of the United States to keep in the know about what the government is doing. Federal agencies are required to disclose any information that they have upon request under the FOIA unless it falls under one of nine (9) exemptions:
- Anything in the interest of national security;
- Solely related to the internal personnel rules and practices of an agency;
- Information exempted from release by statute;
- Trade secrets and commercial or financial information that could harm he competitive posture or business interests of a company;
- Information that protects the integrity of the deliberative or policy-making processes within the agency;
- Information that would constitute a clearly unwarranted invasion of personal privacy of the individuals involved;
- Protects records or information compiled for law enforcement purposes the release of which could reasonable interfere with enforcement proceedings, deprive a person of a right to a fair trial or impartial adjudication, constitute an unwarranted invasion of the personal privacy of a third party, disclose techniques and procedures for law enforcement investigations or persecutions, or endanger the life or physical safety of an individual;
- Protects information that is contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;
- Or protects geological and geophysical information and data, including maps, concerning wells
If requested information does not fall under one of these nine exemptions, it is fair game to inquire about it with whatever organization has access to it.
Anyone may file a FOIA request and such access is not restricted merely to US citizens. Due to the Department of Homeland Security keeping an immigration file, also called an “A-file”, on all immigrants it comes into contact with, irrespective of their status, this also means that even foreign nationals and those seeking to enter the country may also request the information within DHS and USCIS’s reach. This file contains all information pertaining to your interactions with USCIS and can include, but is not limited to, various changes in status and all arrival and departure dates. This is especially important, as mentioned earlier, if you or a loved one are scheduled to have a hearing before an immigration judge or are being held subject to some sort of investigation by USCIS. Furthermore, this same procedure may also be used to help you out with an your employer such as in the event that an I-140 Immigration Petition for Alien Worker has been filed on your behalf and your employer is refusing to provide you with the approval.
How to File a FOIA Request
If you find yourself in need of making a request for any information held by USCIS, there is a process that required. We have detailed the process below in order to help attempt to clarify and help you through the process:
- Visit https://www.uscis.gov/records/request-records-through-the-freedom-of-information-act-or-privacy-act.
- Click on “Request records from USCIS”. If you have a FIRST USCIS online account, login and you will be taken to the page “Submit a FOIA or PA Request.” If you do not have a FIRST USCIS online account, you will need to create one.
- Select whether you are requesting records for yourself or on behalf of someone else.
- Select Freedom of Information Act (FOIA)/Privacy Act (PA) as Request Type.
- Provide a description of the records you are requesting – include enough file-related information (type of document, title, subject area, date of creation, originating office) or enough event-related information (date and circumstances surrounding the event the record covers) for USCIS to conduct a focused, time efficient search. Your request should not be in the form of a question. FOIA does not require agencies to answer questions; it requires agencies to provide photocopies of documents under their control. If you phrase your request as a question, it may be necessary for USCIS to request clarification of what records you are seeking.
- Provide remaining information requested (name of the Subject of Record, other names used, if applicable, full name at time of entry)
- Upon receipt of the FOIA request, USCIS will create and mail an acknowledgment to you. All acknowledgment letters will contain information relating to the track in which we have placed the request, fees, and a telephone number to call with questions. FIRST assigns an individual control number to each case to assist FOIA personnel in locating the case and for the requester to reference in any subsequent correspondence.
- After USCIS has mailed you your Acknowledgement Letter with your Control Number, you can check status online by visiting: https://first.uscis.gov/#/check-status
Under federal statute, USCIS is required to respond to your request within 20 days. If USCIS determines that they need more information to help complete your request, they will notify you or such and instruct you as to what further information may be needed to fulfill your request. In the event that your request is denied in whole or in part, USCIS will notify you of the denial and inform you of your right to file an administrative application for review.
While this is a general overview of the process that is involved in submitting a FOIA request, there are many potential issues that you may run into as you attempt to obtain your information. If you have any questions regarding this process or are in need of guidance in how to best comply with USCIS request guidelines, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.
By: Kristina M. Hernandez & Avery Krushall