The reliability and fairness of our immigration system can be evaluated only if the government’s procedures and activities are transparent. The American Immigration Lawyers Association (AILA), the Legal Action Center, and in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit in July 2010 against Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (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. The history of the litigation went as follows:
The complaint brought by AILA alleged that DHS and USCIS 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.
After the lawsuit was filed, DHS released eight pages of heavily redacted documents and filed a motion for summary judgment. AILA responded with a cross-motion for summary judgment, which prompted defendants to withdraw their motion and request additional time to search for responsive documents. DHS subsequently released additional records, but these records still did not meet the request made by AILA.
In late May 2011, AILA renewed its motion for summary judgment, arguing that DHS continues 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, DHS 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. AILA replied to DHS cross-motion in late July. DHS responded to AILA’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.
Thanks to the diligence of AILA, LAC and its counsel at Steptoe & Johnson LLP, the FOIA request has been granted in full in order to gain a better understanding of DHS and USCIS policy concerning its H-1b fraud program. Thanks to these documents, employers will have better knowledge of what DHS and USCIS has been focusing on during its fraud investigations for H-1b petitions and what an employer needs to do to ensure that no fraud is going on with the H-1b program.