Reclaim The Records submitted the following public comment to the United States Citizenship and Immigration Services (USCIS) on May 18, 2021.
We are Reclaim The Records, a non-profit organization based in the United States, made up of genealogists, historians, teachers, open government advocates, and open data users. Our organization advocates for greater public access to genealogical records and historical materials held in government archives, agencies, and libraries.
Founded in 2015, and an IRS-registered 501(c)(3) non-profit organization since early 2017, Reclaim The Records has quickly grown from its roots as one woman’s Freedom of Information lawsuit against a government agency to become one of the largest public records advocacy groups in the United States. We have more than one thousand financial donors, thousands of subscribers to our newsletter, even more followers of our social media, and over 30,000,000 historical records successfully reclaimed from repositories around the country and published online for free public use, without any paywalls or copyrights.
To date, we have pursued legal action in nearly a dozen separate lawsuits against multiple government agencies in the United States, from groups as small as city clerks’ offices, to multiple jurisdictions’ Departments of Health, to federal government agencies such as the United States Department of Veterans Affairs, all in the pursuit of better records access from agencies that have wrongly withheld public documents from public view. Some of our recent legal wins include successful Freedom of Information suits against the New York State Department of Health and the New York City Department of Records and Information Services. Other times, we are often able to negotiate directly with government agencies for the release of historical records without needing to resort to legal action.
This document serves as our official comment in response to USCIS’ efforts to determine ways in which its regulatory structure poses burdens to the public. We are addressing the following specific questions raised by the Agency, and focusing on demonstrating how the Genealogy Program, as authorized by 8 CFR § 103.38, is burdensome for many reasons:
(4) Are there USCIS regulations or processes that disproportionally burden a specific industry or sector of the economy, geographic location within the US, or government type (e.g. a specific tribal or territorial government or a specific local government)?
(7) Are there instances where the costs of USCIS regulations to the public far surpass the benefits, for reasons that were not anticipated or discussed during the rulemaking process?
(8) Are there instances where the administrative burdens imposed in USCIS regulations are not cost-effective, in the sense that a different approach would achieve regulatory goals with significantly lower burdens?
(15) Are there regulations or forms that have been overtaken by technological developments or that should be amended as part of USCIS’ eProcessing initiative?
The Genealogy Program was created as a means to facilitate access to early-to-mid 20th century immigration records held by the Agency. In practice, the program has been anything but. In a perfect world, the Program would allow researchers to pay a nominal fee, and painlessly receive copies of historic documents, free of administrative burden. Tragically, the fees are neither nominal nor the process not burdensome.
The statutory authority for a genealogy program of sorts lives in Title 8 of the US Code, Chapter 12, Subchapter II, Part IX, § 1356:
“There is hereby established the Genealogy Fee for providing genealogy research and information services. This fee shall be deposited as offsetting collections into the Examinations Fee Account. Fees for such research and information services may be set at a level that will ensure the recovery of the full costs of providing all such services.” [emphasis added]
From that, under 8 CFR § 103.38, the Agency crafted the specifics of what constituted, in their view, “research and information services,” and was thus subject to a fee. The Genealogy Program then became a two-part system. For a fee, currently $65, users could have the staff search the Master Index for a listing of all file numbers of records that pertain to their ancestor. This clearly constitutes research. The second part of the system regulates that users must then pay $65 to retrieve any file found from the search – if such file is a part of five series or subsidies of records. Some results outside of those series may be located, in which case they can be requested for free through FOIA. Other times, records which appear in the index are not held by the Agency at all, and are instead at the National Archives.
USCIS is not in the business of conserving archival historical records, and is ill-equipped to provide public access to these documents, as had been required under the Freedom of Information Act (FOIA). Lacking resources to properly provide reference services, the agency hoped that this fee-based system would fund a reference desk that would facilitate access to certain older records. Despite good intentions, charging fees for records potentially violates the Freedom of Information Act, which only allows agencies to charge for copies of records under specific circumstances. While the Program was originally envisioned as a simpler alternative to FOIA, USCIS presently refuses to process FOIA requests for records covered under the Genealogy Program, and insists that users pay the fee. In these denials, or “redirects,” the Agency fails to cite any statutory exemption to FOIA, and simply parrots back the Agency’s regulations that these records are subject to an extra fee. Agencies cannot regulate their way out of FOIA, as that would neuter that entire law. We suspect that USCIS is relying on the claim that § 1356 exempts these records from FOIA, although they have never actually stated this publicly. Such a claim is problematic nonetheless.
A plain text reading of § 1356 would indicate that Congress’ intention was to allow USCIS to charge for research in the unwieldy and complex master index, as they indicate that a fee may be charged for research. USCIS thus created the Index Search, in which requesters pay a fee for specialized staff to search this index, and report back what records the Agency has for a particular individual. Searching this index is surely research, as it requires knowledge of naming patterns, intricate software, and records’ idiosyncrasies. However, USCIS has taken a broader interpretation of the term research in their current regulations, as they have also classified any request for arbitrary series (or partial series) of records as research even when the file number is provided. When a requestor provides a file number, either having ascertained it via the Index Search, or from their own research, the task of locating the underlying record is relatively simple. At that point, pulling a specific file does not require research, simply a search, just as any other document processed through FOIA does. How can USCIS claim it is undertaking “research” that warrants compensation if they already have the exact file number?
The most frequently requested document from the Genealogy Program are Naturalization Certificate Files (C-Files). In the year 2019, USCIS processed 3707 individual requests for records through the Genealogy Program (not including Index Searches), and 72% were for C-Files. Additionally, 507 requests were for Forms AR-2. These two file series are (mostly) digitized within the Agency’s MiDAS system, and can be retrieved by simply typing the file number into a computer. Thus, for ~85% of the Genealogy Program requests processed in the year 2019, a fee was charged, ostensibly for research, in which USCIS merely typed a number into a program. These requests for digitized files account for up to $1.36 million in revenue, with a small variance for the fraction of C-Files which are not digitized. The remaining 526 requests from Visa, Registry, and Alien Files, were for paper records located across various Federal Records Centers, but again, with known file numbers. While processing these requests is more labor intensive, it does not constitute research, because the research had already been done during the Index Search.
It is abundantly clear that USCIS does not consider merely pulling a file as research subject to a fee, because USCIS already provides Alien Files (A-Files) that were created after May 1, 1951 through FOIA – even if the file number is not known. This was written into the regulations. The Agency picked an arbitrary point in time before which A-Files would cost money, and after which they would not. If an individual was lucky enough to have arrived after that date, as part of the processing of the FOIA request for their file, the Agency will search the same master index, retrieve the file number search for the file from the National Records Center, and provide copies, all for free. Under the current system, retrieving an A-File created on April 30, 1951 would cost $130 if the file number was not known. A file created two days later would be provided to the requester for free. FOIA does not exempt records that are “old.” If one A-File is subject to FOIA, all A-Files are subject to FOIA. To that end, all agency records are subject to FOIA unless a FOIA exemption applies. There are no blanket FOIA exemptions to the entirety of the records that the Genealogy Program includes. Thus, C-Files, A-Files, Visa Files, Registry Files, and AR-2s are all broadly subject to FOIA. § 1356 does not exempt these records from FOIA any more than it could exempt any other record held by the Agency from FOIA. If USCIS were to successfully claim that the phrase information services applied to the aforementioned series, what would stop them from claiming that applies to any records which contain information (in other words, all records)?
Furthermore, these genealogy requests constitute a functionally irrelevant portion of the Agency’s records requests burden. In 2019, USCIS received over 160,000 requests for A-Files, let alone the many other FOIA requests it received. Consequently, USCIS charged fees for the 389 older A-files requested through the Genealogy Program, and processed 160,000 others for free. Even including the entire Genealogy Program’s records requests, the total represents less than 3% of the number of A-Files requested through FOIA, and the overwhelming majority of those requests are for digitized records which are less intense to pull than a modern A-File that is still paper!
Just because an agency regulation purports to exempt a record from FOIA does not mean that it does. In fact, a regulation cannot exempt a record from FOIA on its own. The process of retrieving a specific document, with a known file number, is not research. While we take no issue with the existence of the Index Search, we firmly believe that the Index Search should be the only facet of the Genealogy Program, priced accordingly, so that the cost of staff time to search this index is paid by the requester. The Index Search fee should not price in overhead costs of maintaining the index, or storing older records, as this is required of the Agency, with or without a Genealogy Program.
The records of the Genealogy Program do often pertain to individuals who are still living, and they can and will be used occasionally for more pertinent Agency business. That said, we are aware of an individual who has been unable to obtain her own visa file, first after being asked to pay $65 for a copy, and then after numerous back-and-forth exchanges, the agency admitting it had lost the file. These files are not inherently inactive records, and it is spurious to think that the only function of these allegedly old records is to satisfy the idle curiosity of retirees. Even ignoring the needs of still-living individuals whose records are amongst the Genealogy Programs holdings, there are far more people who need to use these records for active immigration and citizenship matters, who descend from specific subjects of record. This includes people who need to have their own derivative US citizenship recognized, and those who are using USCIS records to prove eligibility for citizenship abroad. Charging a requester a $65 fee to type a number into MiDAS, so they can get copies of an uncertified document which they need to use for legal purposes is a complete corruption of a “Genealogy Fee.” This practice should be abandoned immediately, and all requests for files with a known number should be processed under FOIA, pursuant to the agency’s current FOIA regulations.
Compounding this issue, the Genealogy Program has become the ugly stepchild of the FOIA division. Despite being an “alternative to FOIA,” records are still reviewed by the FOIA team, and records are given FOIA redactions – often quite unnecessarily, such as the names of Clerks of Court from the 1930s being redacted. Furthermore, the Agency has reappropriated the staff of the Genealogy Program to work on other FOIA requests, meaning that the outflow of Genealogy Program records has slowed to a trickle. Index Searches used to take about one month. They now take at least six months. Actual records requests from October are only being processed now, with the backlog growing larger and larger each day. As established earlier, the vast majority of requests are for digitized records. There are few, if any, real logistical impediments to getting these records to their requesters – except for want of staff. This is unacceptable for a FOIA division of one of the largest agencies in the government, but especially egregious considering that the Agency is currently extorting money out of requesters for the privilege of getting the records in the first place!
On top of this, there is another matter to consider, regarding who should retain ownership of these historical materials in the first place. USCIS could very easily sidestep this issue by offloading the records. We urge USCIS to transfer some or all of these records to the National Archives and Records Administration (NARA), which is far better-suited to process requests for historical materials, and in fact, does it daily all across the nation. They issue official copies of records to people who need them for legal purposes, and also have the ability to readily help researchers as well. There is no need for USCIS to have these records, nor does it seem as if the agency wants them – unless the Genealogy Program is being used as a slush fund for the agency, which we surely hope is not the case. Many of these records have been slated to move to NARA for years in USCIS’ own long-standing records retention schedules – but they still have not been transferred.
We understand that there are some logistical issues with sending over the Master Index to NARA, because it contains some sensitive information. But much of the data, particularly the AR-2s and C-Files, can be extracted in isolation. In fact, the AR-2s already exist at NARA, but only on microfilm, and yet USCIS has unfortunately prevented NARA from serving these records to the public citing privacy concerns, yet those very same records are already served to the public by USCIS itself within the Genealogy Program — just for a lucrative fee! It is implausible that there is no way that any of the records can be transferred. It seems more likely that this is a bureaucratic failure.
While we have enjoyed airing our grievances, we would like to end our comment by more pointedly answering some of the questions which were posed to us.
Regarding question #4, the Genealogy Program “disproportionally burden[s]” genealogists and historians. Instead of providing better access to historical records as intended, the Program exists as a barrier to access. $130 is a tall order to pay for a document that might end up being copied from such poor quality microfilm that it is entirely illegible. As it is right now, the Genealogy Program is taking 6-18 months to process requests. Requests made in early 2020 are sometimes outstanding, depending on the type of record, and the Program is only beginning to tackle any requests from November 2020. Alternatively, due to a ruling in a recent class action FOIA lawsuit, the agency is doing a spectacular job of processing A-Files through FOIA, and turning them around within about a month. This disparity is shocking – an A-File from May 1951 is processed within a month at no cost, while a file from April 1951 would be subject to $130 in fees, and would not get processed for nearly a year. Had a researcher put in an index search in November 2020, they would be receiving the file number around now. They would then only be able to request the file in May 2021, and at the current rate, they may not receive the actual A-File for another year. Even still this supposedly historical record, would then still go through FOIA review purgatory, where attorneys (b)(6) half the document, the hide the names of people who are likely long dead!
Researchers cannot expect to get records through the Genealogy Program in a reasonable timeframe. Many (if not most) people ordering these records are applicants for dual-citizenship, who need them for legal purposes. Not only is the Genealogy Program assessing potentially unlawful fees, but the Program requires applicants, many of whom have upcoming administrative and judicial hearings with Italian consulates and courts, to wait for years to get records they require.
The harm to the applicants is obvious. Their citizenship is delayed. This means that they are potentially denied the opportunity to relocate, take employment abroad, or even gain access to lifesaving treatment through other countries’ healthcare systems. There is also a harm to professional genealogists. Genealogists are primarily freelancers whose income depends on being able to obtain documents that answer specific questions posed to them by clients. USCIS’ records are some of the priciest historical records genealogists need to obtain – yet they are also often the most lucrative for our research. In fact, one of our board members, and the primary author of this comment, contributed 1.5% of the Genealogy Program’s revenue in 2019. Yet at this price point, great consideration must be taken in order to determine if a request is worthwhile. This has a chilling effect on our businesses, as clients are less likely to use our services if there are excessive added expenses for records. For every request made, many were not, because of budget limitations. Whereas 15 years ago, one of our other board members obtained “genealogical” records for more than 500 relatives for free through FOIA, doing so today would cost him well over $65,000. In short, we comprise some of the Genealogy Program’s most prominent requesters, spanning multiple decades and iterations of the program, and can authoritatively state that the program’s mere existence has at this point become burdensome.
Regarding question #7, the costs of the Genealogy Program far surpass the benefits to the public, as there are no benefits. The point of the fee was to expedite access, reduce the scope of the legal review, and to potentially fund better records management. None of these came to pass. Records are being processed at a snail’s pace; the FOIA division still goes to town redacting documents that are 100 years old; and the Agency is frequently unable to find records that they lost on the shelves – after potentially having made the requestor cough up a nonrefundable $65 for the Index Search. The Program was recently moved to Missouri, while many of the records are in Washington. It does not appear that all of the indexes have moved with them, as the History Library is still at USCIS headquarters. The public has only lost out from the existence of the Program.
Regarding question #8, the most elegant solution to dealing with these records is to simply transfer them to NARA. There is no reason for USCIS to be the custodian of records that date back to 1906! They are not being used for agency business. In fact, A-Files are already transferred to NARA, with the only requirement, that the subject of record be more than 100 years old. This means that USCIS permits records from an active file series, for at least some living individuals, to be made public. This is reasonable. But what is unreasonable, is that series which have been closed for decades are not moved to NARA, especially when some of the files are located in a different state than the actual Genealogy Program Office in the first place!
USCIS should not have any regulatory goals that relate to disclosing historical records. This is within the purview of the National Archives. USCIS serves to regulate immigration. If these records move to NARA, it will alleviate the burden on the Agency, and can allow the USCIS staff to focus on the needs of living immigrants, not those who came in the 19th century.
Regarding question #15, technology allows many of the Genealogy Program records to be made available to the public cheaply and easily. Because C-Files and AR-2s are digitized in MiDAS, these could be extracted and given to the National Archives immediately. It should require minimal programming to do so, and would eliminate ~85% of the Genealogy Program’s records requests overnight. The only reason why USCIS should be reluctant to transfer records to NARA is if there is a financial incentive for the Agency to maintain the status quo. If that is the case, that would indicate that USCIS is profiting off of the Genealogy Program, which was certainly not Congress’ intention in creating a Genealogy Fee, and directly in violation of the spirit and the text of FOIA.
In summary, Reclaim The Records calls for USCIS to process requests for all historical records, at least when a file number is known, through the Freedom of Information Act, in accordance with their published fee structure. For all intents and purposes, this means that they Agency would assess no fee in nearly all circumstances. We also call for the swift transfer of all eligible historical USCIS records to the National Archives. Public records belong to the public. And our shared American history is not the Agency’s piggybank.