There are many ways that filing a FOIA request can help resolve long-pending immigration cases, but there also are limitations on the type of information the government must release under FOIA. Federal regulations require FOIA information to be released within tight deadlines; but, in fact, this rarely occurs in immigration-related FOIA requests.
Any individual with an immigration history is likely to have information and documents relating to that history with some of these federal departments and agencies: U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), Department of State (DOS), the Executive Office of Immigration Review (EOIR), and, for some, the Federal Bureau of Investigations (FBI). While FOIA is a federal law, each department, bureau, or agency has varying procedures and requirements for requesting documentation under FOIA. Therefore, it is advisable to do some initial research and/or consult an attorney when considering submitting a FOIA request to a particular federal government department or agency.
While an individual generally can gain access to most of the information pertaining to him/herself, there are exceptions to the types of documents that can be obtained from the government through filing a request under FOIA. The information that cannot be released is protected by nine exemptions contained within FOIA.
In addition to simply understanding the history and status of one’s immigration filings, in some FOIA requests, the USCIS may reveal the history of the case adjudication by releasing notations and worksheets completed by USCIS officers. This documentation may provide important information about the manner and type of adjudication, if any. This may be important in identifying any available legal options to resolve individual immigration complications.
Many individuals who have been sponsored for permanent residence by their employers are not given copies of their labor certifications or I-140 petitions, as these documents are the filed by the petitioning employer. A foreign national may be seeking to “port” her/his permanent residence (green card) case under the American Competitiveness in the 21st Century Act (AC21) portability provisions to new employment. Since it is important to have certain information about the labor certification and the I-140 petition, it may be advisable to file a FOIA request in an effort to obtain this information. An individual who has a pending I-485 adjustment-of-status filing generally is able to obtain copies of the supporting labor certifications and I-140s via the FOIA request.
FOIA requests are made for a variety of reasons to the CBP for document release. Most commonly, CBP documents include interview notes made by officers during secondary inspection. These notes often pertain to the admissibility or inadmissibility of an individual. These notes, and related documentation, can impact one’s eligibility for immigration benefits, including future entries to the United States.
EOIR records contain any information regarding removal (formerly deportation) proceedings, triggered by a notice to appear (NTA). This may be helpful in cases where an individual seeks to reopen removal proceedings, to obtain any orders issued by the Immigration Judge, and/or to establish that the removal proceedings were terminated or otherwise resolved.