Practice Advisory | September 2020
A Step-by-Step Guide to Completing FOIA Requests with DHS |SEPTEMBER 2020
USCIS also offers requesters the option to accelerate a request for subjects who have hearings scheduled in
immigration court.
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This covers many, but not all, individuals in removal proceedings. Anyone who does not
have a hearing scheduled, such as people who have final orders of removal, those awaiting pending appeals,
or persons who have missed their scheduled hearings, are not eligible.
USCIS uses a three-track system for its FOIA requests. Track 1 is deemed simple because a requester needs
only a few documents. Track 2 is complex because it may involve a complete copy of a person’s. Track 3 is an
accelerated process for individuals who have a hearing before an immigration judge, such as a removal
proceeding.
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Note that Track 3 processing is available for FOIA requests with USCIS only.
To receive Track 3 processing with USCIS, write a brief cover letter requesting Track 3 processing and provide
proof of an upcoming hearing in immigration court, such as Form I-862 Notice to Appear, with a future hearing
date; Form I-122, Order to Show Cause, with a future hearing date; Form I-863, Notice of Referral to
Immigration Judge; or a written notice of continuation of a future scheduled hearing before an Immigration
Judge.
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Include the cover letter and proof of an upcoming hearing with the FOIA request. USCIS has stated
that a person can request an expedited FOIA request or Track 3 processing, but not both simultaneously.
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VI. FOIA Fees
Most FOIA requests filed in individual immigration cases are free. Further, no payment is required when you
first send a FOIA request.
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Although federal agencies can recover certain costs for the time spent searching
for records and the number of pages copied, the first two hours of search time are free, and the first one
hundred pages copied are free. Additionally, agencies currently do not charge at all if the total amount is
fourteen dollars or less. Most FOIA requests, especially for people who have had little to no interaction with
immigration authorities, fall well under this threshold and cost nothing. Furthermore, if an agency takes more
than twenty business days to respond to a request, the agency cannot charge any search fees.
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Technically, however, by submitting a FOIA request, the requester is agreeing to pay all applicable fees up to
twenty-five dollars, should the costs go over what is provided for free.
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Current practice for FOIA responses
may not require any copies, as often the materials are sent by compact disk, or with online requests,
responses may be sent by email attachments.
The requester will be notified if they owe any money up to twenty-five dollars, and is ordinarily expected to pay
that amount before the agency sends the requested documents.
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If the requester does not wish to agree to
pay twenty-five dollars upfront, the requester can specify a greater or lesser amount when making the FOIA
request and/or by submitting a fee waiver request.
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Most of the online submission forms take this into
consideration and require the requester to state the maximum amount that they will pay.
If the agency expects the work to cost more than either twenty-five dollars or the amount stated by the
requester, the agency will send the requester an interim response stating the actual or estimated amount of
the fees for the requested records. No additional work in excess of twenty-five dollars or the amount stated by
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Track 3 is for individuals who have been served with a charging document and scheduled for a hearing in immigration
court as a result. See Special FOIA Processing Track for Individuals Appearing Before an Immigration Judge, 72 Fed. Reg.
9017 (Feb. 28, 2017).
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USCIS, FOIA/Privacy Act Overview (Nov. 30, 2018), http://www.uscis.gov/about-us/freedom-information-and-privacy-act-
foia/foia-privacy-act-overview/foiaprivacy-act-overview (last visited Dec. 2019).
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Id.
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USCIS, Freedom of Information Act Request Guide, 15, (July 10, 2019), available at
https://www.uscis.gov/sites/default/files/files/nativedocuments/USCIS_FOIA_Request_Guide.pdf
(last visited Dec. 2019).
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Indeed, USCIS advises to not send any money when first submitting a FOIA request. Id. at 21.
52
6 C.F.R. § 5.11(d)(2).
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6 C.F.R. § 5.11(a); DHS, Instructions for Freedom of Information/Privacy Act Request, USCIS Form G-639 (June 20,
2019), available at https://www.uscis.gov/system/files_force/files/form/g-639instr.pdf
(last visited Dec. 2019).
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Id.
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6 C.F.R. § 5.11(k)(5).