Freedom of Information Act Litigation (H-1B)
The reliability and fairness of our immigration system can be evaluated only if the government’s procedures and activities are transparent. The LAC regularly uses the Freedom of Information Act (FOIA) to increase transparency and promote accountability regarding DHS enforcement practices.
On behalf of the American Immigration Lawyers Association (AILA), the LAC, in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit in July 2010 against DHS and USCIS seeking the public release of records concerning agency policies and procedures related to fraud investigations in the H-1B program. There was significant public interest in these records because USCIS’s H-1B practices have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully.
On Friday, May 18, 2012, after protracted litigation, DHS and USCIS released unredacted copies of all of the documents sought by AILA. To view these documents, click on links below.
LAC and AILA Prevail in H-1B FOIA Lawsuit
AILA v. DHS, No. 10-01224 (D.D.C. filed July 20, 2010)
The complaint alleged that defendants violated FOIA when they wrongfully withheld information responsive to two FOIA requests and failed to timely respond to AILA’s requests. The complaint asked the court to enjoin defendants from continuing to withhold information relevant to the requests and to declare that the requested records are not exempt from disclosure. Read our statement regarding the complaint.
Following the release of some heavily redacted documents by USCIS and an exchange of summary judgment motions by both sides, Judge Emmet G. Sullivan issued a lengthy decision in March 2012 in which he denied the government’s motion and partially granted AILA’s motion. He found the government’s privilege log to be inadequate and ordered the agency to better explain its claimed exemptions in the form of a revised Vaughn index. Subsequently, USCIS agreed to disclose the documents in full.
- Press Release
- Complaint with initial FOIA requests and agency responses
- Defendant’s Motion for Summary Judgment
- Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary Judgment and in Support of Plaintiff’s Cross-Motion for Summary Judgment
- Defendant’s Motion to Withdraw Motion for Summary Judgment
- Plaintiff’s Memorandum of Points and Authorities in Support of Motion for Summary Judgment
- Defendants’ Cross-Motion for Summary Judgment
- Defendants’ Memorandum in Support of Cross-Motion for Summary Judgment
- Defendants’ Opposition to Plaintiff’s Statement of Material Facts Not in Genuine Dispute
- Plaintiff’s Reply Memorandum in Support of its Motion for Summary Judgment and in Opposition to Defendant’s Cross-Motion for Summary Judgment
- Plaintiff's Response to Defendants' Statement of Material Facts Not in Genuine Dispute and Plaintiff's Statement of Genuine Material Issues.
- Defendants’ Reply to Plaintiff’s Opposition to Defendant’s Cross-Motion for Summary Judgment
- March 30, 2012 Memorandum Opinion
- May 16, 2012 USCIS Letter
- Documents released by DHS and USCIS on May 18, 2012:
- October 31, 2008 Neufeld Memorandum, “H-1B Anti-Fraud Initiatives – Internal Guidance and Procedures in Response to Findings Revealed in H-11B Benefit Fraud and Compliance Assessment”
- H-1B Petition Fraud Referral Sheet
- Compliance Review Report
- Documents released by DHS and USCIS on November 9, 2012:
- H&L Fraud Referral Sheet
- H-1B BFCA Q&A
- Primary Fraud Indicators for Referral (9-23-12)
- Primary Fraud Indicators for Referral (8-28-12)
LAC Litigation Issue Page: Freedom of Information Act (FOIA)