FOIA Behind the Scenes – How USCIS and DOS Process Immigration-Related Requests

As immigrants’ rights advocates, we have all experienced the frustration of filing—and re-filing—Freedom of Information Act (“FOIA”) requests in order to obtain our clients’ files. The International Refugee Assistance Project decided to find out how USCIS and the State Department process our FOIA requests…by filing a FOIA.

Our “meta-FOIA” unearthed some questionable agency policies. For example, we learned that USCIS routinely delays FOIA requests by advocacy organizations, including AILA (which was singled out by name), by placing these requests on the “complex” processing track.

We also learned how agencies weaponize exemptions—particularly the law enforcement exemption—to withhold broad categories of information. For example: the State Department refuses to release any documents or information unless the applicant has already seen them—which undermines the entire purpose of FOIA. Meanwhile, USCIS maintains a sizable list of sensitive words, terms, and systems that it routinely redacts under the law enforcement exception.

We also learned a number of valuable tips and tricks for requesting immigration records, some of which are summarized below. We encourage you to check out all of what we found here.

• Understand whose consent you need: In order to release immigration petitions, USCIS requires consent from the subject (i.e., the beneficiary), while the State Department requires consent from the person who created the document (i.e. the petitioner). When in doubt, check out this chart.
• Some records may not be in a person’s “A-file”: An “A-file” is the main immigration file that USCIS maintains for a particular individual. However, “standalone” applications— such as an I-130 (family petition), I-131 (travel document, including parole), and I-765 (work authorization)—may not be consolidated into an applicant’s A-file. You should request the subject’s A-file and “all records” containing the subject’s name. (For more information on FOIA-ing A-files, check out the Nightingale practice advisory).
• Ask for related records and supporting documents: If you are requesting records related to a particular benefit or application, this phraseology will help ensure that important correspondence (such as requests for evidence and applicant responses) are included.
• Adhere to agency guidelines on consent and verification of identity: Make sure to follow closely both USCIS and DOS’s guidelines, including when requesting information on behalf of minors.

We hope AILA members will use and share this guidance – and to challenge agency policies that prejudice advocates and our clients.