Using FOIA to Access Immigration Records

The Office of Government Information Services (OGIS) offers dispute resolution services to Freedom of Information Act (FOIA) requesters and agencies. This function allows OGIS to observe and examine the interactions between requesters and agencies across the Federal government, and note common questions and issues that arise in the FOIA process. The FOIA Ombuds Observer addresses questions and issues frequently seen in our individual cases. Our goal is to increase efficiency and transparency in the FOIA process.

Using FOIA to Access Immigration Records

September 18, 2023
No. 2023-02

Requesters regularly contact OGIS to learn how to use Freedom of Information Act (FOIA) requests to access immigration records. As with any FOIA request, requesters need to know which agency holds the records they are seeking, and how to submit a request. This FOIA Ombuds Observer replaces Observer No. 2018-01, published in 2018. Since then, several important updates have occurred, including that many offices no longer accept FOIA requests by email or fax. No single agency holds all the immigration records a requester may seek. This Observer provides information for the eight agencies/components that typically  receive the most frequent FOIA requests for immigration records:

• U.S. Department of Homeland Security (DHS)
  • U.S. Citizenship and Immigration Services (USCIS)
  • U.S. Customs and Border Protection (CBP)
  • U.S. Immigration and Customs Enforcement (ICE)
  • Office of Biometric Identity Management (OBIM)
• U.S. Department of State (State Department)
• U.S. Department of Health and Human Services (HHS)
  • Office of Refugee Resettlement (ORR)
• U.S. Department of Justice (DOJ) 
  • Executive Office for Immigration Review (EOIR)
• U.S. National Archives and Records Administration (NARA)

Beyond this list, there are additional agencies that may have records responsive to a particular FOIA request; the FOIA section of an agency’s website is a great place to find useful information about its records. We thank the above-named agencies for their assistance with this Observer.

Note: THIRD-PARTY REQUESTERS can maximize their access by submitting with their request a consent of release form from the subject of the record (you can meet this requirement by having the request subject complete, date, and sign a form such as Form DOJ-361 and including it with your request). Alternatively, you can provide proof that the subject is dead or demonstrate that public interest in the requested records outweighs the subject’s personal privacy interest.

U.S. Citizenship and Immigration Services (USCIS)

What is USCIS?

U.S. Citizenship and Immigration Services (USCIS) is the government agency within the Department of Homeland Security (DHS) that oversees lawful immigration to the United States. Ninety-nine percent of USCIS FOIA requests are from people who are not U.S. citizens or U.S. nationals* who seek their own records, or their attorneys. (*A U.S. national is a person born in an outlying possession of the U.S. (American Samoa or Swain's Island) on or after the date the U.S. acquired the possession, or a person whose parents are U.S. non-citizen nationals. All U.S. citizens are U.S. nationals; however, not every U.S. national is a U.S. citizen.) Immigration law is unique in that attorneys cannot use discovery to access their client’s records; they must use FOIA.

What records does it have?

USCIS maintains millions of records created when immigrants interact with the federal government as they pass through the immigration process. Some of the most commonly requested record types include:

Alien Files (A-Files)

Alien Files, often called “A-Files” document a person’s contacts with the federal government as they pass through the immigration or inspection process. A-Files average 250 pages. USCIS is the custodian of A-Files; however, two other agencies routinely add documents to A-Files: Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). Ordinarily, A-Files are released only to the individual who is the subject of the A-File, or their attorney or representative. The subject of the record must verify their identity and sign the FOIA request, and the signature must be made under penalty of perjury or in front of a notary. If the request is submitted by a third party, such as the subject’s legal representative, the subject must also provide certification of agreement (consent) to release their records to their legal representative.

Form I-130

A U.S. citizen or Lawful Permanent Resident (also known as a “Green Card holder”) submits a Form I-130, Petition for Alien Relative, on behalf of a close relative who intends to immigrate to the U.S. The person who submits the I-130 is referred to as the “petitioner,” and the person on whose behalf the form is submitted is the “beneficiary.” Once an action is taken on the petition, the form typically becomes part of the beneficiary’s A-File. This means that the petitioner cannot access a Form I-130 that they submitted without providing the agency with the consent of the beneficiary/subject of the A-File, submitting proof that the beneficiary is dead, or demonstrating that the public interest in the requested records outweighs the beneficiary’s personal privacy interests in accordance with the privacy protections of FOIA Exemption 6, 5 U.S.C. § 552(b)(6).  

Form I-864

A sponsor submits a Form I-864, Affidavit of Support, on behalf of an immigrant to demonstrate that the immigrant will have adequate means of financial support when they arrive in the U.S., and will not become a public charge (an individual who is likely to become primarily dependent on the government for subsistence). A family member living in the U.S. often submits a Form I-864 and sometimes an employer submits the form. Once action is taken on the underlying petition, a supporting I-864 is maintained in the beneficiary’s A-File. Consequently, a sponsor requesting access to an I-864 that he or she submitted to the federal government on behalf of a beneficiary cannot access the form without obtaining a consent of release form from the beneficiary/subject of the A-File, submitting proof that the beneficiary is dead, or demonstrating that the public interest in the requested records outweighs the beneficiary’s personal privacy interests in accordance with the privacy protections of FOIA Exemption 6.  

What can I expect when I submit a FOIA request to USCIS?

Although not required, USCIS recommends that requesters use the USCIS online FOIA portal at uscis.gov/foia to submit a request to the agency. Form G-639 may be used to mail in a paper request. Using the portal allows the agency to process your request faster than if it is sent by mail. Regardless of which method you use, you should visit this website and read it carefully this before submitting your request: https://www.uscis.gov/records/request-records-through-the-freedom-of-information-act-or-privacy-act.

USCIS maintains three tracks for processing FOIA requests for A-File material:

• Track 1 consists of simple requests for a specific document from an A-File, such as a Certificate of Naturalization or a copy of a Green Card.
• Track 2 consists of complex requests such as requests for an entire A-File, the average size of which is 250 pages.
• Track 3 is an accelerated track for individuals in immigration proceedings who have a future hearing date before an immigration judge in U.S. Immigration Court. Proof of a future hearing date must be presented to be placed in Track 3.

USCIS also has two tracks—simple and complex—for processing FOIA requests for non-A-File material. The average processing times for all tracks are available at https://first.uscis.gov/#/check-status. 

The majority of requests USCIS receives seek access to entire A-Files or a particular document from an A-File, which can include forms, correspondence, photos, news articles and information from other federal agencies, such as Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). USCIS will process requests for records in an A-File that originated with ICE, CBP, the Department of State, Bureau of Prisons (BOP), Office of Biometric Identity Management (OBIM), and Health and Human Services (HHS) found in an A-File in response to a FOIA request by agreement between USCIS and those agencies. Documents from other agencies in an A-File will be referred directly to those agencies for direct response to the requester. Keep in mind that while USCIS will process documents in an A-File, ICE, CBP, State, BOP, OBIM, and HHS may have other records that are not in the A-File and which must be requested directly from them.  

USCIS will process a request for a particular form or document more quickly than a request for an entire A-File. Referrals to other agencies necessarily slow the processing of a FOIA request, and once all responsive records are located an agency employee still needs to review every page to ensure that no FOIA exemptions apply.

U.S. Customs and Border Protection (CBP)

What is CBP?

Customs and Border Protection (CBP) is the Department of Homeland Security (DHS) agency responsible for securing and facilitating trade and travel into the U.S. CBP enforces hundreds of federal regulations and laws, including immigration and drug laws.

What records does it have?

CBP has records pertaining to detention and expedited removal of people who are not citizens or U.S. nationals and are apprehended while trying to get into the U.S. illegally. The Office of Field Operations has records of arrivals into and departures from the U.S. by air, land or sea, dating back to 1982. Such records are useful for people who have lost their passports or copies of their I-94 forms, which document a traveler’s arrivals and departures. Requesters should know that CBP does not have records on the entry and exit of persons arriving or departing the U.S. before 1982. Most commonly requested CBP records pertain to:

• CBP Trusted Traveler Programs
• Apprehension by Border Patrol between Official Ports of Entry
• CBP Background Investigations
• Detention by Border Patrol or at Port of Entry
• Expedited Removal by Border Patrol of at Port of Entry
• Import Trade Activity (ITRAC) Requests
• I-94 Records
• Records of Inspection or Examination at a U.S. Port of Entry

What can I expect when I submit a FOIA request to CBP?

CBP uses Secure Release to receive and track FOIA requests. Submitting a request electronically through the Secure Release portal is the most efficient way for CBP to receive and process a FOIA request.

If you are requesting records that pertain to you, remember to provide your full name, address, and date of birth. If you are requesting records on behalf of someone else, you must submit a signed Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative), or signed consent that will allow CBP to release the records to a third party.

If you submit a request for an A-File to CBP, CBP will refer the request to USCIS; to avoid delays, submit your A-File request directly to USCIS (see discussion above).

U.S. Immigration and Customs Enforcement (ICE)

What is ICE?

Immigration and Customs Enforcement (ICE) within the Department of Homeland Security (DHS) enforces civil and criminal immigration laws and maintains deportation records.

What records does it have?

ICE records include immigration enforcement records documenting ICE enforcement actions such as issuing immigration detainers; arrests, charging, detention, and removal of aliens for administrative immigration violations; the search for and apprehension of fugitive aliens; and ICE decisions concerning the grant or denial of parole to aliens. This information becomes part of an individual’s A-File, which is maintained by USCIS. Requesters who already have some data from ICE may wish to make a supplemental request seeking access to more recent documents added after a specific date. Therefore, it may be best to request information from both ICE and USCIS.

ICE also has records related to immigration enforcement statistics, deaths of detainees, detention facility contracts, bed space information, and vacancy announcements, which represent a majority of the requests that ICE receives other than requests for detention/removal information pertaining to an individual who was encountered/arrested.

ICE also has criminal investigatory records pertaining to ICE investigations into suspected violations of laws regulating the movement of people and goods into and out of the U.S. in addition to other violations of other laws within ICE’s jurisdiction, including records related to worksite enforcement, child labor, intellectual property, and the Student and Exchange Visitor Program, which manages schools with non-immigrant students as well as “F” visas for non-immigrant academic students, “M” visas for non-immigrant vocational students, and “J” visas for exchange visitors.

ICE also has medical records for individuals who receive medical treatment while in ICE custody in an ICE facility staffed by the IHSC (ICE Health Service Corps).

What can I expect when I submit a FOIA request to ICE?

ICE uses Secure Release to receive and track FOIA requests. Submitting a request electronically through the Secure Release portal is the most efficient way for ICE to receive and process a FOIA request.

ICE accepts postal mail requests on USCIS Form Form G-639, and it is often useful to submit requests to both ICE and USCIS given the nuances of USCIS-maintained A-Files and ICE databases. Whether you use the Form G-639, mentioning in your request how you or your client came into contact with ICE—through the workplace or through an enforcement and removal operation, for example—will help the agency pinpoint which office within ICE may have records responsive to your request.

Requesters seeking access to their medical records are moved to the top of the queue. Please note that ICE is not required to respond to FOIA requests from a person who is a fugitive from justice if disclosure could assist the fugitive and/or other targets to avoid apprehension and to develop false alibis.

Office of Biometric Identity Management (OBIM)

What is OBIM?

The Office of Biometric Identity Management (OBIM), which is part of DHS, provides DHS and other partners with biometric identity services that support national security and public safety. Such services include fingerprinting, face recognition, and iris recognition, among several others. To enable its practices, OBIM uses the Automated Biometric Identity System (IDENT) as its primary repository, which allows DHS and other agencies to benefit from the database of biometric data. 

What records does it have?

To provide biometric match, share, and analyze services, OBIM stores biometric identity information. Requesters can access records regarding interactions with border officials, including information related to removals or voluntary returns at the border. The records can be located based on a scan of a fingerprint card or other identifying information, including an Alien Registration Number, Fingerprint Identification Number, or an Encounter ID. Providing a scan of a photo ID can also be useful for verifying your identity and ensuring that we are able to provide you access to any of your records.

What can I expect when I submit a FOIA request to OBIM?

OBIM uses Secure Release to receive and track FOIA requests. Submitting a request electronically through the Secure Release portal is the most efficient way for OBIM to receive and process a FOIA request.

Requesters should create an account on Secure Release. A scanned copy of an FD-258 fingerprint card can be uploaded through the portal to assist with searching for records.

Requests can also be submitted by mail or email to:

Privacy Office, Mail Stop 0655
Department of Homeland Security 
2707 Martin Luther King Jr. Ave. SE
Washington, DC 20528-065

or

foia-obim@hq.dhs.gov

You can mail or email your request, along with the Affirmation Declaration Documents for DHS FOIA (OBIM) form to OBIM and the hard copy of a fingerprint card. Please do not use staples or paperclips with your submission, as this slows down handling. Do not mail requests previously submitted through the Portal. The following information is required for FOIA requests:

• FOIA Requester Name
• FOIA Requester Address or email address
• FOIA Requester Phone if you would like to receive calls regarding the processing of your request
• Brief description of records sought including the name and aliases for the subject of request
• Provide perjury statement and signature or notary if seeking records that contain personal information about yourself
• Provide a G-28 form if you are representing the subject as an attorney.
• Provide a third party release statement if seeking personal records on another person.

U.S. Department of State

What is the State Department?

The U.S. Department of State represents the U.S. in international affairs and foreign policy issues. One function of the State Department as it relates to immigration is to issue visas and passports.

What records does it have?

The State Department has records documenting the formulation and execution of U.S. foreign policy, and the administration and operations of the department and its missions abroad. State records regarding immigration generally pertain to visa applications for both non-immigrant and immigrant visa classifications.

What can I expect when I submit a FOIA request to the State Department?

FOIA is not an efficient way to gain access to State Department visa records. State will withhold certain records pertaining to the issuance or refusal of visas to enter the United States under FOIA Exemption 3, specifically the Immigration and Nationality Act (INA), 8 U.S.C. § 1202(f).  First-party requesters will generally obtain access to only those visa-related documents that they provided to State in the process of a visa application. Third-party requesters are generally denied access to such records under the INA. If you want to learn the reason a particular visa was denied, State suggests writing to the embassy or consulate office that processed the application.  

State also maintains records related to applications of refugee status. Once there is a final determination on a refugee application, State transfers the records to USCIS. 

U.S. Department of Health And Human Services (HHS)

What is HHS?

The U.S. Department of Health and Human Services (HHS) is tasked with protecting the health of all Americans and providing essential human services. One of HHS’s component offices is the Office of Refugee Resettlement (ORR), which assists refugees and asylum seekers with the relocation process and provides program services.

What records does it have?

ORR maintains case files for Unaccompanied Alien Children (UAC).  

What can I expect when I submit a FOIA request to HHS?

On the FOIA portion of HHS’s website, you can create an account through which you can electronically submit and track FOIA requests. Attorneys, parents, or sponsors requesting a UAC case file should NOT submit a FOIA request, and should instead submit a written request directly to UCRecords@acf.hhs.gov. Requesting parties must file an Authorization for Release of Records (Form A-5), which can be found on ORR’s website, which also includes additional instructions regarding supporting documentation.  

Executive Office for Immigration Review (EOIR)

What is EOIR?

The Executive Office for Immigration Review (EOIR) oversees immigration courts, which decide whether foreign-born individuals charged with violating U.S. immigration laws should be removed from the U.S. or allowed to stay. A common misconception is that EOIR is part of the U.S. Department of Homeland Security (DHS); it is not; rather, it is part of the U.S. Department of Justice (DOJ). Requests for records under the custody and control of CBP, ICE or USCIS should be directed to those agencies, which are part of DHS.  

What records does it have?

EOIR maintains records pertaining to the Office of the Chief Immigration Judge, the Office of the Chief Administrative Hearing Offices, and the Board of Immigration Appeals (BIA). The vast majority of FOIA requests are for the Record of Proceedings (ROP) before the immigration court or BIA. These records are available free of charge to respondents and their representatives, but are generally protected from third-party release absent a waiver by the respondent. The ROP is not the same as the Alien File or “A-File” held by DHS. Since 2022, all immigration courts have implemented electronic ROPs (eROPs) which are available online to representatives who have entered an appearance in the case.

What can I expect when I submit a FOIA request to EOIR?

Immigration courts, unlike federal district courts, do not have a discovery process during which the parties can obtain records from the opposing party, so lawyers frequently use FOIA to obtain records to help defend their client in immigration court. (Often other agencies, such as DHS, will have records relevant to an immigration proceeding, so requesters should not limit their request solely to EOIR.)

EOIR now offers a non-FOIA route to access ROPs for respondents and their representatives, who may make a records request directly to the immigration court or through this link: Request an ROP. There must be an active case before the court or BIA, and if made by the representative, there must be an approved E-27 or E-28 in the Case Portal. This method is generally much faster than making a FOIA request.

If you do make a FOIA request, use the secure online Public Access Link DOJ - EOIR - PAL-Home (justice.gov). Be sure to include as much of the requested information as possible, especially the alien registration (A) number. If the A number is not known, EOIR will perform a name search but may request additional information to verify a potential match.

For purposes of providing verification of identity, EOIR recommends that requesters use Form DOJ-361 (Certification of Identity) for first-party requests. For third-party requests, including requests from representatives who have NOT filed an appearance, EOIR recommends having the person who is the subject of the request complete, sign and date Form EOIR-59, Certification and Release of Records. Please do not use Form G-639, which is a DHS form. Extraneous documents like driver’s licenses and passports should not generally be uploaded.

U.S. National Records and Archives Administration (NARA)

What is NARA?

The National Records and Archives Administration (NARA) is the nation’s record keeper, charged with preserving those government records of such legal and historical importance that they must be kept forever. Many of the agencies that create and maintain immigration records store those records only for a limited window of time, such as 25 years, pursuant to a records retention schedule. Pursuant to that schedule, older records may be accessioned, which means that custody —both legal and physical—is transferred to NARA.

What records does it have?

NARA maintains accessioned immigration records for individuals arriving to the United States from foreign ports between approximately 1820 and 1982 [1]. NARA’s “ship passenger arrival records” are especially useful for genealogists, historians, and other researchers; they provide information about the subject of a request such as:

• Nationality, place of birth
• Ship name and date of entry to the United States
• Age, height, eye and hair color
• Profession
• Place of last residence
• Name and address of relatives they are joining in the U.S.
• Amount of money they are carrying, etc.

What can I expect when I submit a FOIA request to NARA?

If you seek immigration records from before 1982, NARA may have accessioned them. you may want to start your search at NARA and see if the records are already accessible via a public database. Records older than 75 years are publicly available, and many have been digitized by National Archives partners. See our list of all the digitized records available on our partners' websites. Inbound federal passenger arrival manifests from 1820-1959: Use Form NATF 81 or order online for copies of manifests.

Passenger arrival and departure records after 1957: the Immigration and Naturalization Service (INS) transferred the records to microfilm, and the microfilm reels are in NARA's custody. Access is limited due to the fragile nature of the microfilm. NARA is in the process of transferring the microfilm to a digital format, and all digitized copies will eventually be available online via the National Archives Catalog.

Once records are accessioned to NARA the originating agency no longer has access to produce those records in response to a FOIA request. Agencies generally do not transfer those permanent or archival records to NARA until the records are 20-30 years old, so if the records that you seek are more than 20 years old you should direct your FOIA request to NARA.

For more information about NARA’s immigration records visit https://www.archives.gov/research/immigration.

Footnotes: 

[1]USCIS maintains A-files, which are files that consolidate information about non-citizens. USCIS maintains all A-files created on or after 1951. A-files created before that year are numbered below 8 million and may have been transferred to NARA's custody. Also of note: before 1956, all agency records for a new citizen were moved into a consolidated C-File and the A-File ceased to exist. Accordingly, immigrants who naturalized prior to April 1, 1956, will only have a consolidated C-File.