For several years now, Reclaim The Records has been fighting back (and winning!) against the United States Citizenship and Immigrations Services (USCIS)’ atrocious fees, policies, and procedures concerning public access to the historical records that are in the agency’s possession.
- In September 2020, Reclaim The Records submitted an amicus curiae brief in a lawsuit against USCIS on behalf of genealogists, as part of a larger lawsuit filed by multiple immigration-related non-profits and activist groups. The suit successfully stopped USCIS’ attempts at a huge and unjustified fee increase for public copies of their records, both historical and modern, and consequently the attempt at that fee increase was blocked.
- In May 2021, Reclaim The Records submitted a comment to the Federal Register opposing USCIS’ new attempts to hike fees for historical records.
- In July 2021, Reclaim The Records filed a FOIA lawsuit against USCIS for their consistent attempts at illegally pretending that all public requests for their historical records had to go through their more costly “Genealogy Program” rather than through the traditional and less expensive FOIA process, if that was the path explicitly requested. We won the case in April 2022, including $12,000 from the agency for our attorneys’ fees. 🙂
- In March 2023, Reclaim The Records filed a brand new “omnibus” FOIA lawsuit, this one asking for the resolution of eighty-nine separate unresolved FOIA requests we had made of the agency over the previous four years, not one of which the agency had completed on time. Those eight-nine separate requests specifically encompassed various aspects of the daily workings of the agency with regards to their historical records, their “Genealogy Program” performance and budget, the long-overdue transfer of several of the agency’s historical records sets to the National Archives and Records Administration (NARA), copies of agency and program training manuals, the performance of vendor programs to digitize historical materials, copies of internal e-mails and calendar entries from key agency officials overseeing the “compaction” and indexing of older historical materials, and so on. We look forward to facing off with them in court yet again.
Listed below are the official comments Reclaim The Records has submitted to the Federal Register about USCIS, in regards to the agency’s attempts to jack up the fees for historical records access, as well as copies of our current lawsuit against them, our previous lawsuit against them, and our previous amicus curiae in a lawsuit against them.
Chief Regulatory Coordination Division Office of Policy and Strategy
US Citizenship and Immigration Services Department of Homeland Security
20 Massachusetts Avenue NW, Mailstop #2140 Washington, DC 25029-2140
March 8, 2023
RE: DHS Docket No. USCIS-2021-0010
USCIS Genealogy Program, Forms G-1041 and G-1041A
We are Reclaim The Records, a non-profit organization based in the United States, made up of genealogists, historians, journalists, teachers, open government advocates, and open data users1. Our organization advocates for greater public access to genealogical records and historical materials held in government archives, agencies, and libraries.
Founded in 2015, Reclaim The Records (“RTR”) has quickly grown from its roots as one woman’s Freedom of Information lawsuit against a New York City 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, and even more followers of our social media. RTR has successfully reclaimed over 50,000,000 historical records from repositories around the country and published them online for completely free public use, without any paywalls or copyrights.
To regain public access to these historical records, we have successfully pursued litigation against numerous federal, state, and local government agencies over the past few years, including a successful FOIA suit for historical records against your agency, the United States Citizenship and Immigration Services (“USCIS”). With that background, we are writing to you today to explain, in detail, our strong opposition to the proposed fee increase for USCIS’ “Genealogy Program” service.
Our organization’s position on the USCIS Genealogy Program is quite simple: we believe that unfortunately, the entire regime should be scrapped. The Genealogy Program was initially created by USCIS’ predecessor agency with the best of intentions: to offer a separate request pathway, outside of the standard FOIA method, for the public to gain access to the confusing myriad of older historical record types still held by USCIS which had not yet been transferred to the National Archives and Records Administration (“NARA”). The entire purpose of the Genealogy Program was to take these older records, pass them off to more experienced agency staff who knew more about the various types of records that might be involved, and then charge the requestor a small extra fee, beyond the standard fees allowed in statute by FOIA, to access this pool of knowledgeable staff and therefore more timely access to these more complicated or obscure records. Importantly, the then-reasonable extra fee charged to requestors who used the Genealogy Program was supposed to only cover the actual excess costs of administering this alternative request pathway.
Sadly, those early dreams of an optional but speedier pathway to older USCIS records, with searches carried out by knowledgeable staff for a small extra fee, have all been crushed. The current iteration of the Genealogy Program executes the enabling statute in bad faith. Instead of providing timely access to historical records, the Genealogy Program impedes access through its delays far beyond the timeframe permitted under FOIA, and imposes increasingly unsupportable fees for simple document searches, fees that the agency has already raised several times in the recent past. Rather than just providing an optional alternative to FOIA, the existence of the Genealogy Program has been used repeatedly to improperly stifle access to enormous sections of the agency’s older records which ought to also be available under FOIA, where nearly all records are released without charge. And now, we see that USCIS is seeking to increase the Genealogy Program fees once again, now to an exorbitant cost.
USCIS and RTR’s Longstanding Friendship
This is not the first time that USCIS has attempted to raise fees so brazenly on this already- broken Genealogy Program. Nor are they unaware of the ongoing concerns with the fundamental illegality of forcing people to use the program. In our 2021 public comment, we provided the agency a detailed analysis of the laws and regulations that had brought the program into creation, and we explained how the agency is still misinterpreting the law2:
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.
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 May 1, 1951, 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 were not known. 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. [8 USC] § 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)?
These comments fell on deaf ears, and to date, the agency has continued to refuse to produce most historical records without forcing requesters to pay a fee. That is, the agency is still forcing requestors to use the Genealogy Program, and is thereby collecting hefty fees for public access, rather than allowing the requestor to exercise their right to use FOIA to obtain the exact same documents, which would preclude the agency from collecting these extra fees.
In late 2020, we at RTR submitted an omnibus FOIA request to USCIS, asking for copies of one of each of the many kinds of records to which USCIS claims that the Genealogy Program provides exclusive access, such as older A-Files, AR-2 Forms, and so on. We provided the agency the name of the subject of each record and even provided them the exact file number of the document. All the agency would have to do is pull these records and send us a bill for the copies — but to the extent that FOIA, rather than the expensive Genealogy Program, would allow.
USCIS initially denied this FOIA request, as well as our administrative appeal. It told us that we were not allowed to use FOIA. The agency claimed that their official regulations concerning the existence of the Genealogy Program somehow magically overruled FOIA, and that the agency had the right to force us to pay $65 each time it pulled a file off of a shelf, or in some cases, merely printed it off their computer. We disagreed. The Freedom of Information Act was created specifically to ensure that the public had access to federal records. Some agencies do charge fees for records, but these are fees which are expressly authorized by statute and they are often much less than $65. In many cases, agencies even allow researchers to inspect and duplicate the records themselves on-site without charge.
On July 27, 2021, we at Reclaim the Records sued USCIS in the Southern District Court of New York. Our complaint was simple: the records that the Genealogy Program cover are still subject to FOIA, and must be processed accordingly, if requested3. The agency simply cannot force requesters to pay an extra fee for access to the records—not to mention the fact that FOIA requires a response within approximately one month, while the Genealogy Program queue is an order of magnitude longer than that.
Once served with our lawsuit, USCIS suddenly reversed themselves, and chose not to fight the production of historical records via FOIA rather than trying to mandate their production via the more costly Genealogy Program. On November 15, 2021, less than four months after we sued the agency, USCIS produced all of the documents we sought, and the agency ultimately paid Reclaim The Records $12,000 to cover our legal fees for the lawsuit.
And yet, the agency has not changed its ways in the slightest. In the year since the settlement, Reclaim The Records (both as an organization and also as individual board members) has continued to make dozens of requests to USCIS for historical materials, explicitly making these records requests via FOIA rather than as the more costly Genealogy Program requests. But despite our success in court, every request was again denied by USCIS, citing an imaginary need to pay the Genealogy Program fees.
In short, USCIS is continuing to deny what we believe are perfectly valid FOIA requests for historical records, in order to collect more money by charging fees through a program they – despite our relative success in court – still pretend is mandatory. USCIS’ ongoing failure to change its practice of subverting the FOIA law invites continuing litigation.
One Step Forward, Two Steps Back
We understand that USCIS must look to anyone who interacts with the agency for fee revenue as Congress has chosen not to otherwise provide funding. Despite this, all federal government agencies are still bound by FOIA, which requires that agencies not charge requesters for any request which takes less than two hours of time and does not exceed 100 pages4. In fact, it is USCIS’ general practice to not charge for FOIA requests — at least those that they happen to concede actually are valid FOIA requests. Strangely, USCIS doesn’t even charge for FOIA requests if the request exceeds 100 pages! Yet, a very simple five page file from the Genealogy Program, needing neither review nor redactions, often costs a requestor up to $130 today, and under the proposed new rules and new fee schedule, that five-page historic file may soon cost a requestor $340.
Thus, while USCIS is not in an enviable situation regarding funding, they are continuing to rent- seek from the Genealogy Program requesters by forcing them out of their rightful and legal place in the FOIA queue. The increase is not promised to improve the experience of people who are doing historical or genealogical research, but it is instead a naked cash grab from the many people who need access to USCIS’ unique historic records. Payment of these Genealogy Program fees have unfortunately not resulted in more timely access to records at all, leaving people left in legal limbo while they try to settle estates, repatriate remains, or acquire dual citizenship to which they are entitled. Researchers will now be forced to decide if they can afford to shell out approximately two days of the average American worker’s wages simply to see a photo of their great grandmother, a record that should have been reproduced for them for almost nothing at all, had it been properly recognized as a legitimate FOIA request.
Perhaps USCIS could claim a good faith reason for these proposed fee increases if they provided the historical records somewhat expeditiously. To the agency’s credit, up until late 2020 this was generally the case; most record requests to the Genealogy Program were then measured in months. But since late 2020, the timeline for requestors using this program is now measured in years. The average Index Search and Records Request duo now takes about 26 months from start to finish, with the backlog of requests continuing to increase. Throughout 2020, USCIS’ FOIA queue for all records was considerably longer, taking 6-12 months to process. Researchers who were forced to pay the extra fee at least did get better service the Genealogy Program than FOIA requesters. This is demonstrably no longer the case.
As it turns out, when USCIS is forced to provide timely FOIA responses, they can. In compliance with a ruling from a class action lawsuit in 2020, the agency finally began adhering to FOIA response deadlines in one specific circumstance: for people requesting A-Files numbered above 8 million, which is the vast majority of the requests in USCIS’ FOIA queue.5 When confronted by this ruling from a judge, the agency suddenly found the resources to hire more staff, fix their workflows, and deliver more records in a more timely and legally-observant manner. Anyone requesting an A-File for an immigrant whose number was assigned after May 1, 1951, can now expect their A-File in about 3-5 weeks. While an astounding improvement for USCIS, this actually just corresponds to basic compliance with FOIA.
While that FOIA class action court order provided no specific exclusion for Genealogy Program A-Files (i.e. A-Files numbered under 8 million), USCIS still refuses to process those requests via FOIA at all, let alone without unreasonable delays. According to the ruling of District Court Judge Orrick, “Defendants are permanently enjoined from further failing to adhere to the statutory deadlines for adjudicating A-File FOIA requests, as set forth in 5 U.S.C.§§ 552(a)(6)(A) and (B).6” Yet according to USCIS, millions of A-Files mysteriously fall outside the scope of Judge Orrick’s ruling just because the agency says so.
To add insult to injury, it appears that resources previously dedicated to the Genealogy Program have now been repurposed, in part, to process the requests for these more modern A-Files numbered above 8 million. Thus, Genealogy Program records, including some A-Files, now languish for a year or more awaiting legal review by the FOIA processing staff, all the while USCIS falsely claims that the records aren’t subject to FOIA in the first place, despite USCIS having settled a FOIA lawsuit from our organization (and paid our attorneys fees) concerning this exact topic less than two years ago.
What makes this whole situation even more egregious is that USCIS should not even still possess many of the records that they claim fall under the Genealogy Program! The records that comprise the Genealogy Program are quite old, and are exceedingly rarely required for ongoing agency business. They are almost exclusively case files about long-deceased individuals. Most government agencies in this situation confer with NARA and agree to transfer the custody of these sorts of older records to NARA itself, or obtain permission to dispose of them. If USCIS were to need access to a transferred file — such as to provide proof of citizenship or non- citizenship — there are mechanisms in place whereby the agency could then temporarily recall that file from NARA. And yet, to this day, USCIS remains in possession of millions of historical records that ought to be held by NARA, many of which USCIS itself has already agreed in writing to transfer to NARA.
Simply transferring these historical records to NARA would be far less burdensome on the agency than processing thousands of Genealogy Program requests per year. Each record set in the Genealogy Program has unique issues regarding transfer to NARA, but there are solutions. The primary barrier to their implementation is USCIS’ systemic negligence, both historic and ongoing. Please allow us to now expand on the history of each specific relevant record type, all of which which ought to be held at NARA, but which are still bizarrely held by USCIS:
Access to all of USCIS’s pre-1975 records starts with the Microfilm Digitization Application System (MiDAS), “a mission-critical online interactive application system that provides an automated means for searching and retrieving immigrant records.” Among other things, it contains the most complete record in existence of “who (1) naturalized between 1906 and 1975 and/or (2) arrived in the United States between June 20, 1924 and 1975.” According to MiDAS’ binding disposition schedule (Form SF-115) “A copy of [the] extracted database covering files of persons born 100 years earlier” is to be regularly transferred to the National Archives. These transfers were supposed to start in 2006 and have not yet happened, meaning that USCIS has been out of compliance for nearly two decades!
Contained within MiDAS is the “INS Master Index (microfilmed system of index cards containing personal name indices to information on naturalizations, derivative citizenship, arrivals, expulsions, exclusions, lawful entry, and other topics),” along with a database of these cards, the “Master File,” which includes “information on individuals such as name (last, first, middle), date of birth, place of birth, A-File number, and C-File number.” To put it more simply, without the Master Index, it is difficult, if not impossible, to locate the file numbers for C-Files, Visa Files, Registry Files, and many A-Files, four of the five Genealogy Program records. Additionally, there are many correspondence files that were transferred to NARA a long time ago and whose only complete index is contained within the Master Index. NARA is unable to properly service some of these records that it already holds because their only finding aid is with another agency. In other words, USCIS’ refusal to follow through in its already-signed record transfer schedules is not just hurting citizens making requests, it is also hurting other federal government agencies, and impeding them from doing their official duties.
MiDAS also contains digitized microfilms of the Flexoline Index, the “index [to] Alien Registration records created under the Alien Registration Act of 1940” which contains approximately 12 million names. Generally speaking, records in the Flexoline correspond to and serve as the index to AR-2 Forms, the fifth and final series of Genealogy Program records. USCIS transferred a copy of the entire Flexoline to NARA, database, including the underlying digitized microfilm and NARA is still exploring ways to make this index available. No reason for the delay has been given but we suspect that the issue stems from USCIS’s insistence that they restrict information about individuals for 100 years, while NARA policy is generally to only restrict such information for 75 years. Virtually everyone in the Flexoline is more than 75 years old8, and the only information it contains is basic biographical data. This could be released in its entirely with little consequence. USCIS should work with NARA to make this happen so that researchers can avoid needing to outsource these lookups to the Genealogy Program.
Additionally, USCIS should transfer the contents of MiDAS to NARA, including the underlying digitized index cards. Many of the cards are far more useful than just the scrape of the Master File, as they have more fields of data and more accurate data. NARA could make a public version of MiDAS pertaining to people born before a given date, while dedicated staff could have access to the cards/database for more recently-born individuals. If the public has access to MiDAS, Index Searches will largely be rendered moot, and USCIS will save thousands of hours per year of its employees’ time. We understand that there have been negotiations between NARA and USCIS for many years, but the time has come. This long-overdue records transfer must happen before any self-serving fees increase.
Visas and Registries
Visa Files and Registry Files make up some of the least utilized records of the Genealogy Program. There is generally never a way to locate a file number without first conducting an Index Search, meaning that currently, getting the file will virtually always require a two step $135 process and a 24+ month wait. These records were all required to move to NARA in 2019. They did not. We believe that the main obstacle to the transfer is the fact that NARA has no index to these records, and would thus be unable to service them. The index is contained in MiDAS.
This would not be the first time NARA took control of records to which USCIS has the index. As stated above, this is the case for many of the correspondence files, so there is precedent. However, this would still create an inefficient system, because nearly all researchers would need to first do an Index Search, and then after a year or so of waiting, get the file number and request it from NARA. If NARA could use MiDAS, this problem would largely be solved.
Alien Registration forms already exist at NARA on microfilm, but have not been made available to researchers in the reading room. We believe this barrier to access was due to agreements with the agency at the time of transfer, but there is no need for USCIS to restrict access at all. These records can be made public en masse, as the amount of personally identifying information in them is minimal. These records are all scanned into MiDAS, and they should be transferred to NARA in their digitized form. Federal Regulations suggest that permanent records exceeding 30 years of age should be transferred to NARA 12 so this should not be a controversial move, as the AR-2s’ 30th birthday was during the Nixon Administration.
C-Files are currently scheduled as temporary records. This is silly, and is simply an artifact of the retention schedule not being revised since 1968. These records are vastly important to researchers, and if, as is currently planned, they are destroyed in 34 years, then there will no longer be centralized and exhaustive documentation of citizenship for individuals who naturalized as recently as 1956!
While nearly everyone who has a C-File will be dead by 2056, people born much later could have derived citizenship from those petitioners, and the records will have significant evidentiary value. The research value of these files is obvious as well. C-Files need to be rescheduled as permanent records and moved to NARA as well. The majority of C-Files are scanned into MiDAS, and moving millions of them would simply require copying the database. The rest, like Visas and Registries, exist as paper, and would need to be physically transferred (or at least, accessioned in place).
Most of the Genealogy Program series of records closed a long time ago. The most recent, C- Files, closed in 1956. They are all historic by nature, and like nearly all federal records from that era, should have moved to NARA. USCIS is arguably unique as an agency in holding millions of historic permanent records. Generally, all other agencies either transfer historical records to NARA or destroy them after receiving approval from NARA. The fact that USCIS is such an outlier here underscores how imperative it is that they conform to records management best practices.
A-Files are a bit of a unique case because the Agency is still using a system established in 1944. However there are millions of historic A-Files interfiled with more recent A-Files at the National Records Center (“NRC”) and other agency offices. The SF-115 adopted in 2009 provided for immediate transfer of all A-Files for individuals born in 1909 and earlier and then transfers every 5 years starting in 2010. Millions of A-Files have transferred to NARA, but millions more remain with USCIS. We can blame decades of poor records management for the sorry state of the records, leading to a problem that today requires a large investment of time and money. As of now, it is not feasible for many of the eligible A-Files to move to NARA. USCIS must work to establish a plan to rectify their historical issues and to fully comply with the A-File record disposition schedule.
USCIS tried to do this earlier in the 2000s, via the Compaction Project, and inexplicably canceled it midway through, resulting in some files becoming even more “missing” than before it had started. However, there are also hundreds of thousands of A-Files which have been indexed in CIS that have yet to transfer. USCIS knows exactly where the files are, so there is no excuse to not send these files to NARA immediately. Additionally, USCIS must comply fully with the Nightingale Court order from District Court Judge Orrick, and process FOIA requests in a timely manner for all A-Files, with any A-Number, not just the arbitrary subset of newer A-Files they feel like processing.
The Genealogy Program backlog is all USCIS’ doing, as they are tasking themselves with a mission outside their purview. USCIS is not an archive. It does not have the resources to be an archive and is withholding records from NARA in order to attempt to become one. USCIS does not need these records and there is no conceivable reason why they would want the records.
Luckily, the agency has the ability to assign its IT staff and attorneys to focus on transferring the record to NARA relatively easily. Despite the agency’s frequent concerns about private information being released, these historic records have only marginal information that impact living peoples’ privacy. Making these records available at NARA poses no risk to the public. NARA archivists are specifically trained in handling sensitive records. With relatively little fanfare, the contents of MiDAS can be transferred to NARA. To the extent that NARA deems some of the information therein contained as private, they can create a public access version, but even that information is minimal, considering that in 1975, the latest year in which a record is indexed in MiDAS, all naturalizations were a public record in the first place. There are very few cards in MiDAS that pertain to records that are not approximately identical to other records that are unambiguously public. Any privacy concerns USCIS has regarding historical records are not based on any real risks. The costs to segregate private data in MiDAS are large, but the costs of making its current iteration available at NARA are not. When MiDAS moves to NARA, millions of records can follow, and USCIS can align its records practices with the rest of the Federal Government.
We suggest that USCIS look to the Department of Defense, who in partnership with NARA formalized a system in 2004 to manage millions of case files pertaining to veterans, ranging from the early 20th century to the present day15. Official Military Personnel Files move to NARA facilities around 20 years after a given veterans’ service (depending on the branch), and become public records 62 years after service. Both the Military and NARA will process requests for more recent files pursuant to FOIA requests.
RTR to the Rescue
While USCIS does still outright reject FOIA requests for the five sets of Genealogy Program records we just discussed, they technically process FOIA requests for other kinds of agency records, including internal reports, handbooks, emails, and other historical records not subject to the Genealogy Program regulatory structure. But because USCIS now dedicates approximately than 99% of their FOIA resources to complying with the recent court order regarding the timely production of A-Files, almost all other FOIA requests to the agency, such as these above, now take about three to four years to be processed and produced to the public.
Reclaim the Records, along with our friends in the genealogical community, currently has dozens of outstanding FOIA requests to USCIS, not for genealogical requests at all, but merely for copies of various internal USCIS operational records. These sorts of internal requests, too, much like Genealogy Program requests, have been languishing without production over the course of the last few years.
Under FOIA, agencies have 20 business days to respond to every request. Clearly USCIS has blown past these legal mandates by a factor of ten, and have done it repeatedly for some time now, and for many diverse types of records, both historical and internal. This leaves us with no other option but to continue to litigate this ongoing attempt by the agency to evade and ignore their responsibilities under FOIA.
Today, we at Reclaim The Records filed a complaint in Federal Court to compel USCIS to respond to 89 of the Freedom of Information Act requests that we have submitted over the last four years. The responsive records will surely amount to thousands of pages of records about the internal processes of the Genealogy and FOIA Programs. We urge USCIS to produce these records in compliance with the law. We look forward to obtaining these documents so that we can make more informed policy statements and public comments in the years to come. And, as always, we will freely post online for public use any records we manage to wring out of the agency.
Public records belong to the public. Simple requests for those records are not meant to be capriciously ignored for years on end. Nor are those records supposed to be hoarded in warehouses or ancient computer systems forever, rather than given over to proper archives. Nor are requests for those records meant to be used as an agency’s special piggy bank for extra fees that can be squeezed out of the public, in violation of the fee structures already in place from Freedom of Information laws. We at Reclaim The Records will continue our work to ensure that USCIS, and other government agencies, will eventually learn this.
Reclaim The Records
RECLAIM THE RECORDS, ALEC FERRETTI, ALEX CALZARETH, and RICH VENEZIA, Plaintiffs
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant
filed March 8, 2023 in United States District Court, Southern District of New York
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §8552 et seq., seeking the production of agency records improperly withheld by Defendant United States Department of Homeland Security (“DHS”), specifically its component the United States Citizenship and Immigration Services (*USCIS*) (“Defendant”), in response to requests properly made by Plaintiffs.
2. Plaintiffs have, for nearly four years, been requesting transparency in USCIS’s policies via FOIA requests. Plaintiffs’ requests, of which there are eighty-nine at issue, were made from June 18, 2019, to December 13, 2022. To date, Defendant USCIS has failed to properly respond to any of Plaintiffs’ eighty-nine requests, either by producing the requested records or denying the requests, within the time allowed by FOIA… [read full text as PDF]
RECLAIM THE RECORDS and ALEC FERRETTI, Plaintiffs
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant
filed July 27, 2021 in United States District Court, Southern District of New York
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §§552 et seq., seeking the production of agency records improperly withheld by Defendant United States Department of Homeland Security (“DHS”), specifically its component the United States Citizenship and Immigration Services (“USCIS”) (“Defendant”), in response to requests properly made by Plaintiffs.
2. Plaintiffs seek an injunction requiring Defendant to release the requested records.
… [read full text as PDF]
Reclaim The Records won this suit (stipulation and order of settlement, full records production, and payment of our attorneys fees by USCIS) in April, 2022.
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.
IMMIGRANT LEGAL RESOURCE CENTER; EAST BAY SANCTUARY COVENANT; COALITION FOR HUMANE IMMIGRANT RIGHTS; CATHOLIC LEGAL IMMIGRATION NETWORK, INC.; INTERNATIONAL RESCUE COMMITTEE; ONEAMERICA; ASIAN COUNSELING AND REFERRAL SERVICE; ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS, Plaintiffs
CHAD F. WOLF, UNDER THE TITLE OF ACTING SECRETARY OF HOMELAND SECURITY; U.S. DEPARTMENT OF HOMELAND SECURITY; KENNETH T. CUCCINELLI, UNDER THE TITLE OF SENIOR OFFICIAL PERFORMING THE DUTIES OF THE DEPUTY SECRETARY OF HOMELAND SECURITY; U.S. CITIZENSHIP & IMMIGRATION SERVICES, Defendants
AMICUS BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND PETITION FOR REVIEW AND REQUEST FOR STAY
filed September 10, 2020 in United States District Court, Northern Division of California
“…Significant fee increases for historical immigration and naturalization paperwork at the level described in the Final Rule would prove especially burdensome to the genealogical and historian community as a whole, and would directly counteract RTR’s goal of increasing public access to records, as the fees would be cost-prohibitive. RTR therefore supports Plaintiffs’ request for a preliminary injunction of a final rule issued by the Department of Homeland Security (DHS). 85 Fed. Reg. 46788 (Aug. 3, 2020) (“Final Rule”). RTR supports Plaintiffs’ detailed and persuasive legal arguments showing the unlawfulness of the Final Rule. Whereas Plaintiffs focused on the significant increase of fees to apply for immigration benefits, RTR as amicus respectfully seeks to offer information relating to the Final Rule’s significant increase of fees for USCIS’ unique “Genealogy Program” that has provided public access to millions of historical agency files. Specifically, the Final Rule is contrary to law, as it violates the original genealogical fee statute 8 U.S.C. § 1356(t), and is arbitrary and capricious, as DHS failed to offer calculations or demonstrate the budgetary necessity of such significant fee increases. RTR especially seeks to emphasize the substantial harm the genealogical community—professionals, organizations, individuals, and others—would suffer should the Final Rule take effect. Lastly, given the weight of importance of the access to historical records, RTR will detail the harm such a drastic fee increase would cause for the public as a whole…” [read full text as PDF]
The multi-plaintiff group in this lawsuit, buttressed by amicus curiae submitted by Reclaim The Records and several states and municipalities, won an injunction against USCIS in 2020, and the rule and its disastrous fee hike proposals were blocked from effect. The government has appealed the case but so far the injunction has stayed in force.