Lawsuit Demands USCIS Comply with FOIA Requests regarding H-1B Adjudications

On behalf of the American Immigration Lawyers Association (AILA), the American Immigration Council filed a lawsuit under the Freedom of Information Act (FOIA) challenging U.S. Citizenship and Immigration Services’ (USCIS) failure to respond to two FOIA requests asking for records that would explain increased scrutiny and denials of H-1B petitions. The Council and AILA are concerned that USCIS had adopted new adjudication standards without informing the public.

The requests ask for records relating to USCIS’s consideration of evidence demonstrating an occupation’s “prevailing wage,” as well as records relating to USCIS’s determination of whether a position is a “specialty occupation.” Because USCIS failed to respond to these FOIAs within the deadlines set by law, the Council and AILA filed suit to compel the agency to produce these important records.

After the lawsuit was filed, USCIS responded for the first time with records in August 2018. A series of negotiations by the Council and government counsel followed, during which USCIS continued to produce records, or portions of records after AILA objected to inadequacies in the productions. In July 2019, USCIS completed its release of additional records to AILA’s satisfaction. The parties then reached a settlement, followed by joint dismissal of the lawsuit on September 12, 2019.

The complete production of records responsive to both FOIA request is available on AILA’s website. AILA also has made available, through separate links, records it thought would be of particular interest arranged by FOIA request and topic, such as training materials/guidance and RFE and denial template language. These records include a specialty occupation and wage levels issues scenarios chart and standards for adjudicators to request additional evidence supporting H-1B petitions.