FOIA requests at USCIS
In 2001, Tina came to the United States on a J1 visa. She completed her exchange program in California and returned home. A year later she came to the US under the Visa Waiver Program on several occasions. Just last year, she met Bob. They fell in love and got married. Concurrent with Bob's spousal petition, Tina is also applying for a greencard before the USCIS.
What Tina thought would be a smooth application turned out to be a challenge. Upon review of her immigration history, USCIS wanted to know if her J1 visa required her to return to her home country and stay there for at least two years after the exchange program. This is known as the "two-year foreign residence requirement" under Section 212 (e) of the US Immigration and Nationality Act and in certain exchange visitors, this requirement is imposed. If one is required under this particular section and is unable to do so, he/she must obtain a waiver from the Department of Homeland Security before changing status in the US or being issued another visa in other categories. Usually, the two-year foreign residency requirement is noted at the visa page of the passport. But the J1 visa stamp is not always a reliable indicator whether Section 212 (e) applies to the visa holder. What is more reliable is Form DS-2019 (Certificate of Eligibility for Exchange Visitor (J1) Status). This form contains more details pertaining to the exchange program and if the foreign residency requirement applies to the visa holder. The latter should have a copy of this form after being interviewed at the US Consulate.
In Tina's case, her J1 visa stamp does not specifically mention if the two-year residency requirement applies to her. Worse, all her forms and documents can no longer be found as her exchange program ended more than 16 years ago. She cannot prove she was exempted from the residency requirement.
But there is remedy. She can request USCIS for any copies of her immigration records the agency has. Tina can file what we call as a "FOIA Request" under the Freedom of Information and Privacy Act.
If you also want to make a FOIA request, you must submit it in writing or you can use the optional Form G-639 which is available at the USCIS website. There is no fee for the first 100 pages of reproduction and two hours of search time. However, not all documents and records relating to her immigration history is available at USCIS. I-94 records, previous non-visa applications, port of entry documents, etc. are not retrievable at USCIS. There is a guide at the USCIS website on where to make a FOIA request depending on the document you want to obtain.
Making a FOIA request is a convenient way to obtain copies of your past immigration records. However, do not rely too much on the idea that the government keeps and maintains your records. There are a number of factors that it may not have your file or may have inaccurate or incomplete records. The best thing you can do is to make sure you make and maintain your own copies of anything you have filed at USCIS or any government office.
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