Introduction: A Recent Victory in FOIA Litigation

At Reddy Neumann Brown PC, we recently settled a Freedom of Information Act (FOIA) delay lawsuit that not only secured crucial immigration documents for our client, but also resulted in the government covering our client’s attorney fees. The litigation stemmed from prolonged delays in releasing information that was critical to the client’s high-skilled immigration case. After months of unresponsiveness, the client reached out to us, and we took the matter to court where we were able to secure the documents and also settle on attorney fees under the FOIA fee-shifting statute. This case is a powerful reminder of how FOIA litigation can be a vital tool in holding the government accountable, especially in the realm of high-skilled immigration, where knowledge of immigration documents, policies, procedures, and more can be vital for an individual or a business.

In light of this case, it is important to explore uses of FOIA in the context of high-skilled immigration, how to tackle delays with litigation, and the FOIA fee-shifting statute—designed to encourage transparency by holding the government responsible for needless delays. While not every case can be as successful as the one we just settled, FOIA litigation can be a powerful way to push for the documents requested, especially since DHS, USCIS, and Department of State seem to refuse to follow the FOIA statute.

The Purpose of FOIA in High-Skilled Immigration

The Freedom of Information Act, enacted in 1966, is one of the most critical tools for ensuring government transparency. It allows individuals, businesses, and organizations to request access to federal agency records. For high-skilled immigration professionals and employers, FOIA is indispensable because it provides access to a wide range of documents and data necessary for navigating the complex U.S. immigration system.

Access to Individual Immigration Records

Many high-skilled immigrants rely on FOIA to obtain documents directly related to their immigration status. These documents can include I-140 petition approvals, H-1B application records, and even Request for Evidence (RFE) responses from past immigration filings. Such documents can be critical for individuals who need to assess their case history or gather information required for further immigration benefits, such as adjustment of status or permanent residency applications.

For instance, in cases where the individual has previously been petitioned for employment-based visas, FOIA can help retrieve crucial historical data. This includes copies of visa petitions, approval notices, and evidence of an applicant’s qualification under categories like EB-2 or EB-3. Access to these records is essential in cases where an employer no longer has copies or when the immigration history spans several years. It can also be helpful when an individual receives an adverse finding from an immigration agency. For example, if an individual receives a denied visa due to a misrepresentation, a review of their A-File, which can be obtained through FOIA, can be helpful to determine what went wrong and how to fix the issue moving forward.

FOIA for Program Data, Policies, and Procedures

Beyond individual cases, FOIA is essential for those seeking broader information on U.S. Citizenship and Immigration Services (USCIS) policies, procedures, and program data. Immigration lawyers, employers, and advocacy groups often use FOIA requests to analyze trends in visa approvals, denials, and processing times. This information is useful for strategic planning, advocacy efforts, and even litigation when agencies are suspected of violating statutory or regulatory obligations.

For example, FOIA requests can uncover data regarding how many H-1B petitions were approved or denied over a specific period, the processing times for different types of visas, or internal memoranda that guide adjudications. Such insights can reveal patterns of systemic issues, helping to challenge unjust practices and protect the interests of high-skilled immigrants. One other option would be to FOIA for policies and procedures related to L-1Bs, which have a high RFE rate, so an employer can strategically plan their filings.

However, obtaining these records isn’t always straightforward. Government agencies are often slow to respond, citing a backlog of requests or claiming the need for extended review times due to the complexity of the request. This is where FOIA litigation comes into play, ensuring that the government follows through on its obligations to provide timely access to information.

FOIA Litigation After Delays

FOIA mandates that federal agencies respond to requests within 20 business days, though this period can be extended in certain circumstances. Despite these statutory timelines, delays are common. When delays extend beyond reasonable limits, litigation becomes a powerful tool to force the agency’s hand.

Why Delays Occur, Allegedly…

In my opinion, Congress created a strict statutory mandate for responding to FOIA requests and there is no real excuse for delays. However, from USCIS’ perspective, FOIA delays are allegedly a result from backlogs within agencies like USCIS, which receives thousands of requests annually. While government agencies are obligated to process requests as efficiently as possible, they argue that things such as budgetary constraints, staff shortages, and the sheer volume of requests can lead to significant processing delays.

In other cases, agencies may delay responding to requests because they are unsure how to handle sensitive or controversial information. This is especially true in high-skilled immigration matters where the release of internal policies or practices could expose shortcomings in the agency’s adjudication process. But, remember, there are options for the government to exempt certain things from disclosure through FOIA.

Filing Suit to Combat FOIA Delays

If an agency fails to respond to a FOIA request within the statutory timeline, the requester can file a lawsuit in federal court. Filing a FOIA lawsuit can have the immediate effect of pressuring the agency to release the requested documents. Sometimes, agencies will release the records shortly after litigation is filed to avoid the costs and complexities of a protracted legal battles, especially since there is a statutory mandate to disclose documents unless an exemption applies.

In our recent case, the government failed to respond to our client’s FOIA request for months despite multiple follow-ups before they retained us. After filing suit, the agency released the initial requested documents within weeks and created a schedule for other documents that they said had to be reviewed by another government entity. The litigation not only compelled the agency to act, but it also resulted in the recovery of attorney’s fees under FOIA’s fee-shifting statute.

The FOIA Fee-Shifting Statute: Getting the Government to Pay

One of the most effective tools in FOIA litigation is the fee-shifting statute, which incentivizes agencies to comply with FOIA requests by making them liable for attorney’s fees if they fail to do so. This statute is located at 5 U.S.C. § 552(a)(4)(E) and allows courts to award reasonable attorney’s fees and litigation costs to the party that “substantially prevails” in a FOIA case.

Eligibility for Attorney’s Fees

To be eligible for attorney’s fees, the plaintiff must have “substantially prevailed” in the litigation. This can happen in two ways:

1. The court issues a ruling in favor of the requester.
2. The agency voluntarily releases the requested information after the lawsuit is filed.

In our case, the agency released the requested documents after the lawsuit was initiated, despite previously delaying the production, thereby making our client eligible to file a motion for attorney’s fees under the statute. Keep in mind, FOIA litigation fees are not a guarantee, the statute says “courts may assess” them, and courts look to a number of factors to determine if fees are not only appropriate, but to what extent should they be granted.

Factors Courts Consider When Awarding Fees

Even if a requester is eligible for fees, courts consider several factors when deciding whether to grant an award. These factors ensure that only deserving plaintiffs—those who advance the public interest or face undue obstruction—receive compensation.

1. Public Benefit: Courts assess whether the release of the requested documents serves a broader public interest. If the information sheds light on government activities, policies, or data that benefit the public, this factor weighs in favor of awarding fees.

In the context of high-skilled immigration, releasing data on visa approvals or internal policies can benefit not only individual immigrants but also companies, policymakers, and legal professionals who need to understand the intricacies of immigration law. When it involves an individual’s records, this prong can be weaker, but an argument can be made that FOIA litigation, in general, when there are delays leads to a public benefit in holding the government accountable.

1. Commercial Benefit to the Plaintiff: Courts look at whether the requester stands to gain commercially from the information. If the FOIA request is motivated by personal financial gain, courts may be less inclined to award fees. However, in cases where the requester is an individual immigrant or an advocacy group, this factor tends to favor fee-shifting.

1. Nature of the Requester’s Interest: Courts also examine whether the requester’s interest is public-spirited or private. Requests made for scholarly, journalistic, or public advocacy purposes are viewed favorably, whereas purely personal interests may weigh against awarding fees.

1. Reasonableness of the Agency’s Withholding: Finally, courts assess whether the agency had a reasonable basis for withholding the requested documents. If the agency can demonstrate a valid reason for delay—such as protecting sensitive information or complying with complex legal requirements—the court may decline to award fees. However, if the delay was unnecessary or unjustified, this factor will favor the requester.

Recovering Fees in High-Skilled Immigration Cases

In high-skilled immigration cases, the fee-shifting statute serves as a crucial mechanism to hold agencies accountable for delays. Often, high-skilled immigrants face tight timelines when applying for visas or other immigration benefits, and delays in receiving FOIA documents can have serious consequences for their status or employment. Further, when we look at agencies like USCIS, they often delay FOIA responses for months or years, negating the value of the data sought. Holding them accountable is important, and potentially recovering fees can assist in individuals’ choice to pursue litigation.

For businesses, too, timely access to immigration records is vital for compliance with legal requirements and ensuring that key employees can remain in the U.S. without disruption. By pursuing litigation when FOIA requests are unreasonably delayed, both individuals and businesses can not only secure the necessary records but also make the government pay for the attorney’s fees incurred in the process.

Conclusion: FOIA is a Tool for Transparency and Accountability

The Freedom of Information Act is a powerful tool for immigrants, attorneys, and businesses navigating the complex U.S. immigration system. Whether you are seeking individual immigration documents or program-wide data on visa processing, FOIA can provide access to the information you need. However, when delays occur, litigation may be the only way to compel the release of records without waiting a long period of time.

At Reddy Neumann Brown PC, we have seen firsthand how effective FOIA litigation can be—not only in securing critical immigration records. but also in holding the government accountable through fee-shifting provisions. By pursuing litigation when necessary, we ensure that our clients receive timely access to information while minimizing their costs through fee awards. If you’re facing delays in your FOIA request, don’t hesitate to reach out to explore your legal options and fight for your right to transparency. While fee shifting is certainly not a guarantee, it is something that might be possible in a FOIA lawsuit.

Reddy & Neumann, P.C., located in Houston, Texas, has been serving the business community for over 27 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.

By: Steven Brown

Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.