Month: July 2023

Have you ever wondered what exists in your file with immigration? What information or documentation they may have about you that even you don’t know or remember? There’s an easy solution to that. Request a copy of the file!

Through the Freedom of Information Act (FOIA), you can submit a request for information and documentation to any federal agency. When you want information about your own file, you’ll have to provide sworn proof of your identity for the agency to release the information. You can do this by completing the federal FOIA form of the relevant agency, which can be done by paper or by online filing.

In your request, you must specify the specific documents sought. The more specific you are in your description of documents sought, the more likely you are to receive it. However, if you just generally want your entire file copy for U.S Citizenship and Immigration Services (USCIS) then you can state on your request that you want your entire A-file copy. If you submit your request to an agency that does not have the information sought, you may be told that your request is being forwarded to another agency, or you may simply need to file a new FOIA request with a different agency.

Each agency has its own specific guidelines that you must follow. Here we provide basic instructions about how and where to file your FOIA request, based on the information sought. If you are not using a designated print or online form to make the request, it is recommended that you send a notarized letter with your name, address, date of birth, and a detailed description of the documents and information you are requesting.

• If  you want copies of petitions or applications that were filed by you or on your behalf, you will likely need to file a FOIA request with USCIS. You can do this by filling out Form G-639 and mailing it to: National Records Center, FOIA/PA Office, P.O. Box 648010, Lee’s Summit, MO 64064-8010. OR, you can create an online USCIS account and fill out the request online.
• If you want copies of your passport, visas, or applications filed for visas to enter the U.S., you will likely need to file a FOIA request with the U.S. Department of State (DOS). You can do this by mailing in the request to Office of Information Programs and Services (IPS), U.S. Department of State, State Annex 2 (SA–2), 515 22nd Street, NW., Washington, DC 20522–8100. OR, you can create an online account and fill out the request online.
• If you want records of your entries and exits to and from the United States, any interview notes from border detentions, records of a voluntary return, or an I-94 admission record, you will likely need to file a FOIA request with U.S. Customs and Border Protection (CBP).  You can do this by mailing in the request to 90 K Street NE MS 1181, Washington, DC 20229. OR, you can create an online account and fill out the request online. Note that this is the same online account that is used for ICE and OBIM FOIA requests.
• If you want records of your detention in the country (not at the border or port of entry), records of a Notice to Appear, or records of bond paperwork, you will likely need to file a FOIA request with Immigration and Customs Enforcement (ICE). You can do this by mailing in the request to U.S. Immigration and Customs Enforcement, 500 12th Street SW, Stop 5009, Washington, DC 20536-5009. OR, you can create an online account and fill out the request online. Note that this is the same online account that is used for CBP and OBIM FOIA requests.
• If you want to find records that relate to arrests, investigations, or border interactions during which your biometrics or fingerprints were taken, you will likely need to file a FOIA request with the Office of Biometric Identity Management (OBIM). You can do this by mailing in the request to Privacy Office, Mail Stop 0655, Department of Homeland Security, 2707 Martin Luther King Jr. AVE SE, Washington, DC 20528-065. Your request must be sent with an Affirmation Declaration and a properly completed fingerprint card. OR, you can create an online account and fill out the request online. Note that this is the same online account that is used for CBP and ICE FOIA requests.
• If you want to find copies of filings made with the Immigration Court during removal proceedings or orders from an immigration judge, you will likely need to file a FOIA request with the Executive Office for Immigration Removal (EOIR). You can do this by mailing in the request to: Office of the General Counsel Attn: FOIA Service Center, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2150, Falls Church, VA 22041. All requests must be filed with a signed verification of identity (or use Form DOJ-361). OR, you can create an online account and fill out the request online.

When you receive your FOIA response, you may notice that some pages or pieces of information are redacted or excluded. This information may be withheld by the federal agency if it is deemed to be any of the following:

1. Information that is classified to protect national security.
2. Information related solely to the internal personnel rules and practices of an agency.
3. Information that is prohibited from disclosure by another federal law.
4. Trade secrets or commercial or financial information that is confidential or privileged.
5. Privileged communications within or between agencies.
6. Information that, if disclosed, would invade another individual’s personal privacy.
7. Information compiled for law enforcement purposes that:
a. Could reasonably be expected to interfere with enforcement proceedings
b. Would deprive a person of a right to a fair trial or an impartial adjudication.
c. Could reasonably be expected to constitute an unwarranted invasion of personal privacy.
d. Could reasonably be expected to disclose the identity of a confidential source.
e. Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
f. Could reasonably be expected to endanger the life or physical safety of any individual.
8. Information that concerns the supervision of financial institutions.
9. Geological information on wells.

When information is withheld, you can either accept it as is, or you can challenge the agency by filing an administrative appeal. To file an appeal, write a letter explaining your reason for the appeal, mark the letter and envelope clearly with “Freedom of Information Act Appeal”, and mail it to: USCIS FOIA/PA Appeals Office, 150 Space Center Loop, Suite 500, Lee’s Summit, MO 64064-2139.

When information is withheld, you can either accept it as is, or you can challenge the agency by filing an administrative appeal. To file an appeal, write a letter explaining your reason for the appeal, mark the letter and envelope clearly with “Freedom of Information Act Appeal”, and mail it to: USCIS FOIA/PA Appeals Office, 150 Space Center Loop, Suite 500, Lee’s Summit, MO 64064-2139.

Sources:
https://www.foia.gov/faq.html#:~:text=Exemption%201%3A%20Information%20that%20is,disclosure%20by%20another%20federal%20law
https://www.uscis.gov/records/request-records-through-the-freedom-of-information-act-or-privacy-act
https://www.ecfr.gov/current/title-22/chapter-I/subchapter-R/part-171

Immigrants are frequently the target of criminal activity. Particularly undocumented immigrants who are seen as vulnerable because of their fear to seek help from law enforcement agencies that may effectuate their deportation. In recognition of this, and in an effort to encourage these victims to come forward, Congress enacted certain immigration options for those who have been victimized, or are being victimized.

U Visas

A “U Visa” is an option for victims of certain qualifying crimes in the United States who have been, are being, or are likely to be helpful to the investigation and/or prosecution of the crime. The individual must be able to evidence that, as a result of the criminal activity, he or she suffered substantial mental or physical abuse. If applying for a visa under this category, the applicant must also be admissible to the United States, which may require filing a waiver for any possible grounds of inadmissibility (such as an unlawful entry).

If approved, the applicant receives U nonimmigrant status, with work authorization, for a period of four (4) years. After 3 years of continuous physical presence in the United States with U nonimmigrant status, the U nonimmigrant may apply to adjust status to a Lawful Permanent Resident.

If 21 years of age or older, the primary “U visa” applicant may petition for his or her spouse and children (unmarried and under 21 years of age) to receive U nonimmigrant status. If the “U visa” applicant is under 21 years of age, the applicant may petition for his or her spouse, children (unmarried and under 21 years of age), parents, and unmarried siblings under the age of 18, to receive U nonimmigrant status.

Because only 10,000 primary applications can be approved per year, there is a significant waitlist. In an effort to fairly manage this waitlist, persons who are waiting for an approval may receive a Bona Fide Determination (BFD) letter while the case is ongoing. The significance of this letter is that it allows the applicant to remain in the United States without accruing any unlawful presence, and it allows the applicant to apply for an employment authorization card.

T Visas

A “T Visa” is an option for victims of severe forms of sex or labor trafficking who are physically present in the United States (or American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry) and who have complied with any reasonable requests for assistance with law enforcement in the investigation and/or prosecution of the trafficking. The individual must be able to evidence that he or she would suffer extreme hardship if removed from the United States. If applying for a visa under this category, the applicant must also be admissible to the United States, which may require filing a waiver for any possible grounds of inadmissibility (such as an unlawful entry).

If approved, the applicant receives T nonimmigrant status, with work authorization, for a period of four (4) years. After 3 years of continuous physical presence in the United States with T nonimmigrant status, the T nonimmigrant may apply to adjust status to a Lawful Permanent Resident (it may also be possible to apply earlier if the applicant was continuously present during the trafficking investigation or prosecution if it is now deemed complete).

If 21 years of age or older, the primary “T visa” applicant may petition for his or her spouse and children (unmarried and under 21 years of age) to receive T nonimmigrant status. If the “T visa” applicant is under 21 years of age, the applicant may petition for his or her spouse, children (unmarried and under 21 years of age), parents, and unmarried siblings under the age of 18, to receive T nonimmigrant status.

Only 5,000 primary applications can be approved per year, but, unlike the “U Visa” category, the maximum annual cap has never been reached (as of 2021).

Trafficking victims may also qualify for “Continued Presence” (CP), even if they have not yet submitted an application for a “T Visa”. Once a trafficking victim has been identified, it becomes possible to qualify for CP, which allows the individual applicant to temporarily remain lawfully in the United States, and with a work permit, while the trafficking investigation and/or prosecution is ongoing.

VAWA

Under VAWA (the Violence Against Women Act of 1994), the abused family members of U.S. Citizens (USC) and Lawful Permanent Residents (LPR) may seek to self-petition for immigrant classification to permanently reside in the United States, without the knowledge or assistance of the U.S. Citizen or LPR abuser. If the abuser is a U.S. Citizen, the abused spouse, children (unmarried and under 21 years of age), or parents of that U.S. Citizen (if the Citizen is 21 years of age or older) may self-petition. If the abuser is a Lawful Permanent Resident, the abused spouse or children (unmarried and under 21 years of age) of that LPR may self-petition.

The self-petitioning applicant must establish a qualifying relationship, eligibility for the immigrant classification sought, that he or she was subjected to battery or extreme cruelty by the USC or LPR family member, that he or she does or did reside with the abusive USC or LPR family member, and that he or she is a person of good moral character. If the relationship is a spousal relationship then it is also necessary to prove that the marriage was entered into in good faith (and not for the purpose of circumventing immigration laws).

Self-petitioning applicants must also be admissible to the United States. That said, there are certain inadmissibility grounds that do not apply to VAWA cases, such as the public charge ground. Additionally, exceptions or waivers may be granted that take into consideration the abuse suffered by the applicant. For example, inadmissibility for unlawful presence in the United States may fall into an exception if there is a connection between the unlawful presence and the abuse suffered.

VAWA applicants may reside in the United States or outside of the United States at the time of the application. If outside of the United States, the applicants will undergo consular processing for an immigrant visa. If inside the United States, the applicants will apply for adjustment of status to a Lawful Permanent Resident. Even if the applicant entered the United States without inspection, admission, or parole, he or she is eligible to file for adjustment of status. The timing of the applications for an immigrant visa or adjustment of status will depend on the family-based category and whether it is one that is considered an “Immediate Relative” category or one that is a “Preference” category.

If the self-petitioning applicant is the spouse or child of the abuser, the applicant may petition for his or her children (unmarried and under 21 years of age) to receive derivative immigrant status.

Other

In addition to the T Visa, U Visa, and VAWA, there may also be options for abused spouses of certain nonimmigrants (A, E-3, G, or H status). For more information, visit the USCIS webpage.

Under VAWA (the Violence Against Women Act of 1994), the abused family members of U.S. Citizens (USC) and Lawful Permanent Residents (LPR) may seek to self-petition for immigrant classification to permanently reside in the United States, without the knowledge or assistance of the U.S. Citizen or LPR abuser. If the abuser is a U.S. Citizen, the abused spouse, children (unmarried and under 21 years of age), or parents of that U.S. Citizen (if the Citizen is 21 years of age or older) may self-petition. If the abuser is a Lawful Permanent Resident, the abused spouse or children (unmarried and under 21 years of age) of that LPR may self-petition.

The self-petitioning applicant must establish a qualifying relationship, eligibility for the immigrant classification sought, that he or she was subjected to battery or extreme cruelty by the USC or LPR family member, that he or she does or did reside with the abusive USC or LPR family member, and that he or she is a person of good moral character. If the relationship is a spousal relationship then it is also necessary to prove that the marriage was entered into in good faith (and not for the purpose of circumventing immigration laws).

Self-petitioning applicants must also be admissible to the United States. That said, there are certain inadmissibility grounds that do not apply to VAWA cases, such as the public charge ground. Additionally, exceptions or waivers may be granted that take into consideration the abuse suffered by the applicant. For example, inadmissibility for unlawful presence in the United States may fall into an exception if there is a connection between the unlawful presence and the abuse suffered.

VAWA applicants may reside in the United States or outside of the United States at the time of the application. If outside of the United States, the applicants will undergo consular processing for an immigrant visa. If inside the United States, the applicants will apply for adjustment of status to a Lawful Permanent Resident. Even if the applicant entered the United States without inspection, admission, or parole, he or she is eligible to file for adjustment of status. The timing of the applications for an immigrant visa or adjustment of status will depend on the family-based category and whether it is one that is considered an “Immediate Relative” category or one that is a “Preference” category.

If the self-petitioning applicant is the spouse or child of the abuser, the applicant may petition for his or her children (unmarried and under 21 years of age) to receive derivative immigrant status.

“T Visas” are for victims of severe forms of human trafficking, which refers to sex trafficking and labor trafficking. Trafficking comes in many different forms, but is defined as follows:

– Sex trafficking: where a commercial sex act is induced by force, fraud, or coercion.
– Sex trafficking (of a person under 18 years of age): where a commercial sex act is induced to be performed by someone that has not yet reached the age of 18 years old.
– Labor trafficking: where a person has been recruited, harbored, transported, provided for, or obtained for labor or services, through the use of force, fraud, or coercion, and for the purpose of involuntary servitude, peonage, debt bondage, or slavery.

At the time you file your application, you must be physically present in the United States “on account of” the trafficking. It is popularly believed that this means you must have entered the United States already as a trafficking victim. That is not accurate. There may be many reasons that you entered the United States that have nothing to do with trafficking. Instead, if you are now in the United States and are currently a victim of trafficking, or you were a victim of trafficking but have managed to escape from it, you may still qualify for a “T Visa”.

In most cases, it is necessary that you demonstrate that you have been in contact with law enforcement about the trafficking. However, certain exceptions do apply. If you have been in contact with law enforcement, it will be helpful to your case if you have the law enforcement agency complete Form I-918 Supplement B. However, this is not required.

The application form and instructions can be found here on the USCIS website.

IF YOU ARE THE VICTIM OF TRAFFICKING AND NEED HELP, YOU CAN CALL THE NATIONAL HUMAN TRAFFICKING HOTLINE: 888-373-7888!

“U visas” are for victims of certain qualifying crimes that violated U.S. laws or were committed in the United States or its territories and possessions. To qualify, you must be able to document that you (1) were a victim of a qualifying criminal activity, (2) suffered substantial physical or mental abuse as a result of the crime, (3) possess information about the criminal activity, and (4) have been, are being, or are likely to be helpful in the investigation or prosecution of the crime.

If your “U visa” application (filed with USCIS on Form I-918) is approved, you will receive U-nonimmigrant status for a period of 4 years. After at least 3 years of continuous presence in U-nonimmigrant status in the United States, you are eligible to apply for Lawful Permanent Residency to remain in the United States.

A list of the qualifying criminal activities can be found at 8 U.S.C. 1101(a)(15)(U)(iii), which states: “the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting (as defined in section 1351 of title 18); or attempt, conspiracy, or solicitation to commit any of the above mentioned crime”

The application form and instructions can be found here on the USCIS website.

After October 26, 2023, the automatic 540 day extension period that benefits certain persons applying for a renewal of employment authorization will end. Instead, the automatic extension period will revert to a lesser 180 days.

If you file for a renewal of your employment authorization card by the October 26, 2023 cut off date, you should still benefit from the automatic 540 day extension so long as you (1) file for a renewal prior to the expiration date of your current employment authorization card, (2) are still eligible for employment authorization, (3) are applying for a renewal in the same category in which you currently have employment authorization, and (4) are applying in one of the categories designated for an automatic extension.

The categories designated for an automatic exension are:
(a)(3) – Refugee
(a)(5) – Asylee
(a)(7) – N-8 or N-9
(a)(8) – Citizen of Micronesia, Marshall Islands, or Palau
(a)(10) – Withholding of Deportation or Removal Granted
(a)(12) – Temporary Protected Status (TPS) Granted
(a)(17) – Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status*
(a)(18) – Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status*
(c)(8) – Asylum Application Pending
(c)(9) – Pending Adjustment of Status under Section 245 of the Act
(c)(10) – Suspension of Deportation Applicants (filed before April 1, 1997); Cancellation of Removal Applicants; Special Rule Cancellation of Removal Applicants Under NACARA
(c)(16) – Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)
(c)(19) – Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”.
(c)(20) – Section 210 Legalization (pending I-700)
(c)(22) – Section 245A Legalization (pending I-687)
(c)(24) – LIFE Legalization
(c)(26) – Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status
(c)(31) – VAWA Self-Petitioners

This USCIS webpage has additional information:https://www.uscis.gov/eadautoextend

For a tool that your employer may use to calculate your eligibility for employment: https://www.uscis.gov/i-9-central/form-i-9-resources/employment-authorization-document-ead-automatic-extension-calculator