Freedom of Information Act Litigation (H-1B)

The reliability and fairness of our immigration system can be evaluated only if the government’s procedures and activities are transparent. The LAC regularly uses the Freedom of Information Act (FOIA) to increase transparency and promote accountability regarding DHS enforcement practices.

On behalf of the American Immigration Lawyers Association (AILA), the LAC, in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit in July 2010 against DHS and USCIS seeking the public release of records concerning agency policies and procedures related to fraud investigations in the H-1B program. There was significant public interest in these records because USCIS’s H-1B practices have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully.

On Friday, May 18, 2012, after protracted litigation, DHS and USCIS released unredacted copies of all of the documents sought by AILA. To view these documents, click on links below.

CASES | RESOURCES

CASES

LAC and AILA Prevail in H-1B FOIA Lawsuit

AILA v. DHS, No. 10-01224 (D.D.C. filed July 20, 2010)

The complaint alleged that defendants violated FOIA when they wrongfully withheld information responsive to two FOIA requests and failed to timely respond to AILA’s requests. The complaint asked the court to enjoin defendants from continuing to withhold information relevant to the requests, to declare the requested records are not exempt from disclosure, and to award any other relief that the court deems just and equitable. Read our statement regarding the complaint.

After the lawsuit was filed, defendants released eight pages of heavily redacted documents and filed a motion for summary judgment. Plaintiffs responded with a cross-motion for summary judgment, which prompted defendants to withdraw their motion and request additional time to search for responsive documents. Defendants subsequently released additional records.

In late May 2011, AILA renewed its motion for summary judgment, arguing that defendants continue to improperly withhold responsive documents and have failed to segregate and release portions of previously disclosed and newly identified redacted documents.

In late June 2011, defendants responded to AILA’s motion for summary judgment with a cross-motion for summary judgment and filed an opposition to plaintiff’s statement of material facts not in genuine dispute. Plaintiff’s replied to Defendant’s cross-motion in late July. Defendants responded to plaintiff’s reply in early August.

In March 2012, Judge Emmet G. Sullivan issued a lengthy opinion in which he denied the government’s cross-motion and partially granted AILA’s motion to the extent that he found the government’s privilege log to be inadequate. He ordered the agency to better explain its claims exemptions in the form of a revised Vaughn index:

The Court notes that the USCIS’s revised Vaughn submissions must be sufficiently detailed such that the Court and plaintiff can conduct their own reviews of the segregability of the non-exempt information, particularly in light of the previously-disclosed information regarding fraud indicators in the BFCA Report (Watkins Decl., Ex. 2) and the Compliance Review Report Instructions produced by defendants in response to plaintiff’s FOIA Requests (Watkins Decl., Ex. 29). The Vaughn submissions should contain a segregability analysis for each document withheld in part or in full, identifying the proportion of exempt and non-exempt information, and specifically explaining why the withheld information cannot be produced.

In a May 16, 2012 letter, USCIS stated that it undertook “its most rigorous comparative review” of the remaining undisclosed documents requested in AILA’s FOIA request and determined that it would disclose the documents in full.

• Press Release [1]
• Complaint with initial FOIA requests and agency responses [2]
• Defendant’s Motion for Summary Judgment [3]
• Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary Judgment and in Support of Plaintiff’s Cross-Motion for Summary Judgment [4]
• Defendant’s Motion to Withdraw Motion for Summary Judgment [5]
• Plaintiff’s Memorandum of Points and Authorities in Support of Motion for Summary Judgment [6]
• Defendants’ Cross-Motion for Summary Judgment [7]
• Defendants’ Memorandum in Support of Cross-Motion for Summary Judgment [8]
• Defendants’ Opposition to Plaintiff’s Statement of Material Facts Not in Genuine Dispute [9]
• Plaintiff’s Reply Memorandum in Support of its Motion for Summary Judgment and in Opposition to Defendant’s Cross-Motion for Summary Judgment [10]
• Plaintiff's Response to Defendants' Statement of Material Facts Not in Genuine Dispute and Plaintiff's Statement of Genuine Material Issues. [11]
• Defendants’ Reply to Plaintiff’s Opposition to Defendant’s Cross-Motion for Summary Judgment [12]
• March 30, 2012 Memorandum Opinion [13]
• May 16, 2012 USCIS Letter [14]

• Documents released by DHS and USCIS on May 18, 2012:

1. October 31, 2008 Neufeld Memorandum, “H-1B Anti-Fraud Initiatives – Internal Guidance and Procedures in Response to Findings Revealed in H-11B Benefit Fraud and Compliance Assessment” [15]
2. H-1B Petition Fraud Referral Sheet [16]
3. Compliance Review Report [17]

• Documents released by DHS and USCIS on November 9, 2012:

1. H&L Fraud Referral Sheet [18]
2. H-1B BFCA Q&A [19]
3. Primary Fraud Indicators for Referral (9-23-12) [20]
4. Primary Fraud Indicators for Referral (8-28-12) [21]

RESOURCES

LAC Litigation Issue Page: Freedom of Information Act (FOIA) [22]