You have a right to see copies of what materials U.S. immigration authorities have on you, by filing a FOIA request.
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 nonimmigrant work visa, immigrant 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." That's what we'll discuss in this article.
When It Is or Isn't Useful to File a FOIA Request
FOIA requests can be critical in cases where an applicant's extended immigration history matters to the success of an application, such as in seeking naturalization, or when a foreign national is in removal proceedings (fighting deportation) and needs to see what evidence the government holds.
Realize, however, that you might not actually get to see every word in the file. U.S. immigration officials have the authority to redact (cross out) some parts, usually, names of government officials and officers or information pertaining to persons other than you, the authorized subject of the FOIA.
There are also situations in which you should not waste your time making a FOIA request, in part because the government will simply reject it and also in part because the FOIA process would actually take much longer than is practical or necessary. If, for example, 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 USCIS's contact center 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, are not available through the FOIA process.
Read the Department of Homeland Security's Freedom of Information Act Handbook before considering a FOIA request.
Key Steps in Making a FOIA Request for Immigration Records
When making a FOIA request, there are three steps to follow:
- Figure out what kind of information you need about your immigration history.
- Determine which government immigration agency has the information you need.
- Identify the specific reasons why you need your immigration file and background information.
We'll discuss each step below.
Step One: Identify the Information You Need
Identifying the kind of information you need is critical in making a good FOIA request. Not only does this help you fill out your 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 so-called "A file" (A stands for "alien"). 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) might simply want to see everything in your A file, perhaps because 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 your immigration case, or at the very least a clearer picture of where you stand.
Step Two: Identify Which U.S. Immigration Agency Has Your Information
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, online.
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). And if you are in removal proceedings before the immigration court, your request must be 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.
Step Three: Identify the Reason You Need Your Immigration File
Noting why you need your file from U.S. immigration officials is essential, and not just because you must put this reason down on your FOIA request. If you are in a situation where your life or liberty is at stake, you might be able to request that U.S. immigration officials expedite your request and send 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 processing your request.
Step Four: Make Your FOIA Request
The easiest way to start your FOIA request is at the Department of Homeland Security (DHS) website. It offers a Public Access Portal, which sums up the various contact methods. For USCIS, that requires going to the agency website and establishing an account first.
USCIS also offers a form for making FOIA requests, Form G-639. It is fairly straightforward, but the agency discourages its use, saying that online requests are much faster.
Importantly, the person whose records are sought must give consent, either before a notary public or through a sworn affidavit, for the FOIA request to be made.
As noted earlier, certain kinds of information in your immigration records might be available only from Customs and Border Protection. If you believe that's likely, file a separate FOIA request online with that agency, in addition to the request you send to DHS.
There is no initial filing fee for a FOIA request, though you might be charged later.
Follow-Up Processing of Your FOIA Request
U.S. immigration officials will provide individual, noncommercial requesters with the first 100 pages of the relevant 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, also free.
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 ten cents per page of duplication, up to $25.
How Long Does a FOIA Request Take to Process?
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. Processing times vary from days to years, depending on how backed up the government is with requests.
Check the status of your USCIS FOIA request online using the control number given to you when your request was first submitted.
If you absolutely need your FOIA request returned as quickly as possible, 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 (NTA) or Notice of Hearing with your request.
Getting Legal Help
A FOIA request can be a powerful tool in helping your U.S. immigration case. If you have any questions, contact a licensed, experienced immigration attorney who can advise you on the FOIA process.
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