In litigation over whether the Department of Homeland Security complied with its obligations under the FOIA, the Seventh Circuit this week found that the agency had fallen short in David Rubman v. U.S. Citizenship and Immigration Services et al. The effect of this decision will be to pull back the curtain on the government’s process for calculating visa availability, specifically for H-1B visas.
Overview of the FOIA
The Freedom of Information Act or FOIA permits people to ask for government documents or information and requires the agencies to produce the requested documents unless a specific statutory exception applies. The process for submitting immigration FOIA requests is fairly simple. And the regulations command the agencies to comply within a set time period.
Summary of the Dispute in Rubman
In the Rubman case, the requestor had asked for specific information on how the DHS keeps track of the annual cap on H-1B visas. The government often receives more H-1B applications than are allowed under the statute, which requires it to then select at random which applications it will even consider (let alone approve). However, the government has not explained how it determines when the annual cap has been reached.
Take, for example, this hypothetical. If the government receives 50,000 applications for visas, it doesn’t know the day it received them which ones will be granted and which will be denied. Some are approved rather quickly. Some are issued “requests for evidence” which ask the petitioner give more documents to prove eligibility. Some will be abandoned because the worker doesn’t want to work there or the employer doesn’t want to employ her any longer. And some will eventually be denied, but then the applicant is allowed to appeal (and some of those appeals will reverse the original denial).
Given the fluidity of this process, how does the government know when it has reached the total number of visas it can grant? Does the government receive more applications than it can approve, assuming some will be denied (sort of like the airlines overbooking a flight assuming some won’t show up)? Or does it stop accepting applications when the statutory number is reached? If the second method is used, then surely they aren’t using all of the visa numbers allowed, because some of those visa applications will be denied or abandoned.
David Rubman, a former adjunct law professor at Northwestern University, wanted to know how the government made this determination, so, he requested, under the FOIA, documents to help determine whether USCIS was actually using all of the visa numbers permitted by Congress for H-1B visas and how it was making this calculation.
The USCIS responded to his request with a single table of data on annual statistics. It did not include documents explaining how it determines which the cap has been met or even separate the data by year, as requested.
Rubman responded to the first request by noting that it wasn’t what he had asked for. The government responded by producing a second table which didn’t match the first table. Rubman again wrote to the government noting that the second table was inconsistent with the first and that he had asked for internal statistical reports and emails in his request for “all documents.” To this, the government wrote that providing its e-mails or other documents to explain the H-1B tracking process would only be confusing, so it declined.
After an administrative appeal was denied, Mr. Rubman took his complaint to federal court. There the District Court concluded that Rubman’s request for “documents” had not specified which documents he wanted, so the single table of data was enough.
The Seventh Circuit Orders a Complete Search
The Seventh Circuit disagreed with the District Court’s analysis and reversed. In a 3-0 opinion written by U.S. Court of Appeals Judge Diane Sykes, the court wrote that FOIA requests for “documents” should be understood to mean “preexisting internal agency records,” and that when a requestor asks for “all” documents, the government must actually search for all documents, not pick and choose which data it wants to share and which it deems “too confusing.”
The case was litigated by Scott Pollock in Chicago.
So What Does This Mean?
For people who use the FOIA to help prove their case before the immigration agencies, this is a big win. In immigration court, FOIA requests are necessary because formal “discovery” in removal proceedings is limited.
In the H-1B context, this decision forces the government to be more transparent about an issue that many have questioned: how exactly does the government decide that it has used all 65,000 of its H-1B visa numbers? If it is granting less than the number of visas ordered by Congress each year, then it must explain why it is rejecting bona fide H-1B applications each year because it has supposedly already met the cap.
More broadly, this decision is a common sense approach to interpreting FOIA requests. Often when making a request, it’s impossible to know specifically which documents you’re asking for because you don’t know what exists. At a minimum , the Rubman case tells the agency that when “all documents” about a specific process are requested, the government cannot choose to produce a single document and deem the remaining responsive documents “too confusing” to release.