One of the most perplexing aspects of the U.S. immigration system is the murky nature of what information the government has (or does not have) about an applicant or petitioner. In some cases, a foreign national looking to apply for a work visa, green card, or other immigration benefit can run into problems and even have the application denied because the government relies on background information that the foreign national didn’t know existed.
Fortunately, thanks to a law called the Freedom of Information Act (FOIA, for short), persons wishing to see what information and documents U.S. immigration officials have collected on them—or on another person, with that person's consent—can request a copy of the relevant immigration file, also known as an “A file.” These FOIA requests can be critical in cases where an applicant’s extended history matters to the success of an application, such as in seeking naturalization, or where a foreign national is in removal proceedings and needs to see what evidence the government holds.
Note that there are some specific situations where you should not make a FOIA request, in part because the government will simply reject the request and also in part because the FOIA process would actually take much longer than is practical in your case.
If you simply want to find out the status of a pending application or petition, visit the U.S. Citizenship and Immigration Services (USCIS) case status website, or call the USCIS information line at 1-800-375-5283. If you want to check the status of a visa application you made at a U.S. embassy or consulate, you must contact that specific consular post directly.
Further, certain types of older records, like old Immigration and Naturalization Service (INS) records before 1982, will not be available through the FOIA process. Also, U.S. immigration officials do have the authority under the law to redact (cross out) some parts of your records. Usually, names of government officials and officers or information pertaining to persons other than the authorized subject of the FOIA request are redacted.
You should review the Department of Homeland Security’s instructions for the FOIA process before considering a FOIA request.
When making a FOIA request, there are three steps you should follow:
Identifying the kind of information you need is critical in making a good FOIA request. Not only does this step help you in making a strong FOIA application, but also it will aid you in determining whether a request through FOIA is the proper means to get the information in the first place.
For example, if you need a record of your entries and exits to and from the United States in the last ten years, such information is most likely recorded in your A file. However, if you need a record of any criminal convictions in your background, a background check with the Federal Bureau of Investigations (FBI) would probably make more sense. And, as noted earlier, certain kinds of information in your immigration background are more readily available through other channels.
You (or your attorney) may simply want to see everything in your file, such as when you've lost copies of your past applications or don't know what applications successfully reached the immigration authorities and what actions they took on them. This is helpful in situations where you (or your attorney) might need overall guidance as to what next steps you should take in an immigration case, or at the very least a clearer picture of where you stand.
Step Two is important to a fruitful FOIA request, as contacting the right immigration agency will increase the chances that U.S. immigration officials will positively answer your FOIA request and provide the information you need. In general, most requests for a person’s A file can be made directly to USCIS. However, certain types of records, like a manifest of entries and exits to and from the United States, customs records, charges of removability or deportability, and other documents, are maintained by U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE).
Further, if you are in removal proceedings before the immigration court, you cannot make a normal FOIA request to the court; you will have to file a motion or another court-specific document to request records held by the court. If you need records of earlier proceedings, the FOIA request is made to the Department of Justice’s Executive Office of Immigration Review (EOIR).
If you have questions about which agency you should contact for a FOIA request, contact a licensed immigration attorney who can advise you.
Noting why you need your file from U.S. immigration officials is essential, and not just because you are required to put the reason down on your FOIA request. If you are in a situation where your life or liberty is at stake, you may be able to request that U.S. immigration officials expedite your FOIA request and send you your A file as soon as possible.
For example, if you fear returning to your home country and want to apply for asylum, U.S. immigration officials might recognize that time is of the essence in such a case. USCIS specifically has a three-track system for FOIA requests: (1) simple requests that can be approved in 39 days; (2) complex requests that require 89 days to complete; and (3) 30-day “fast track” requests where the requester has been served a “Notice to Appear” before an immigration judge and is facing removal proceedings. Take stock of your situation and the specific need you have for your immigration file.
One relatively new and easy option for making your FOIA request is to go through the Department of Homeland Security (DHS) website. It offers a DHS FOIA Request Submission Form, which allows you to choose USCIS or another immigration-related agency from a drop-down menu.
USCIS also offers a form for making FOIA requests, Form G-639. It is fairly straightforward, and can be found online. However, there are some areas of the form that can be tricky. If you have followed the three steps in this article, you should have little problem completing the form.
In Part 1, for “Type of Request,” be certain to mark the correct entry. If you are not a U.S. citizen or a permanent resident and wish to request your own immigration file, you would be marking the “Freedom of Information Act” box for non-U.S. citizens/Lawful Permanent Residents. Take care to mark the correct option matching your situation.
In Part 3, you will be asked for a specific description of the information you need. If you followed the three step process listed above, this should be straightforward.
Part 4 can be somewhat confusing. It asks for information about the person whose records are being requested. The FOIA allows a requester to request the immigration file of another person, so long as the requester has the express consent of that other person. Most often this happens in situations where an attorney or other representative is helping a foreign national get his or her immigration file. Importantly, whether the FOIA request is made by a person seeking his or her own file or the file of another, the person whose records are sought must give consent, either before a notary public (Item 8a) or through a sworn affidavit (Item 8b), for the FOIA request to be made.
Submit your completed and notarized Form G-639 to the address listed on the G-639 web page.
As noted earlier, certain kinds of information in your immigration records might only be available from Customs and Border Protection or Immigration and Customs Enforcement. If you believe either or both of these agencies has the information you seek, you should file separate FOIA requests with the field offices of the applicable agency, in addition to the request you send to the National Records Center.
There is no initial filing fee for a FOIA request.
U.S. immigration officials will provide individual, noncommercial requesters with the first 100 pages of the FOIA request subject's immigration records on file, free of charge. More recently, immigration officials have been providing digitally scanned copies of a subject's entire file on Compact Disc, free of charge. Fees will be charged for searches, duplication, and/or review time, if they total more than $14. By submitting the form, you agree to pay up to $25.
If your life or liberty is not at stake, or if you are not facing proceedings before an immigration judge, you will have to wait a while for a FOIA request. As of early 2016, the average processing time for a "simple" FOIA request is a little over one month, while more complex ones take over 80 days. You can check the status of your USCIS FOIA request online using the control number that was given to you when your request was received.
In more urgent cases, immigration officials will make an effort to complete a FOIA request in around 20 to 30 days. If you absolutely need your FOIA request returned as quickly as possible, you should prepare a detailed explanation, along with supporting proof, of why your life or liberty might be endangered without the information from a FOIA request. If you are facing immigration court proceedings, you can provide a copy of the court's Notice to Appear or Notice of Hearing with your request.
The FOIA request can be a powerful tool in helping you navigate the complexities of U.S. immigration. If you have any questions, contact a licensed immigration attorney who can advise you on the FOIA process.