One of the common tactics USCIS tries to pull for various petitions and applications is saying “based on derogatory information we intend to deny your petition” and not providing any detail on what the derogatory information is. This happens in the non-immigrant visa context and the immigrant visa context. When this happens, people often panic and wonder what information USCIS has and how they can reply successfully to the allegations of derogatory information when they don’t know what the information is. However, there can be a couple of ways to find out this information and use it to craft a response.

Introduction to 8 C.F.R. § 103.2(b)(16)

In the realm of U.S. immigration law, transparency and fairness should be viewed essential principles that guide the interactions between applicants and the United States Citizenship and Immigration Services (USCIS). One such provision that highlights these principles is found in the Code of Federal Regulations (C.F.R.) at 8 C.F.R. § 103.2(b)(16). This regulation empowers individuals to request access to certain records and information held by USCIS, potentially unveiling derogatory information that may affect their immigration journey. This article aims to shed light on the importance of exercising one’s rights under 8 C.F.R. § 103.2(b)(16), and offers some thoughts on how to strategically navigate the process of obtaining and responding to derogatory information.

Understanding 8 C.F.R. § 103.2(b)(16)

8 C.F.R. § 103.2(b)(16) creates a right of transparency. It grants individuals the right to access their own records and other information held by USCIS. The relevant portion of the regulation reads as follows:

(16) Inspection of evidence. An applicant or petitioner shall be permitted to inspect the record of proceeding which constitutes the basis for the decision, except as provided in the following paragraphs.

(i) Derogatory information unknown to petitioner or applicant. If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered, except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this section. Any explanation, rebuttal, or information presented by or in behalf of the applicant or petitioner shall be included in the record of proceeding.
(emphasis added).

This regulation paves the way for individuals to gain insights into the information USCIS has on them, which could be particularly valuable if derogatory information exists that may impact their immigration benefits. Specifically, if an individual is facing an accusation of fraud through “derogatory information” on their I-485, it can be helpful to have this information when responding to USCIS. Similarly, a company facing various accusations through “derogatory information” on an H-1B petition could use this to best craft the response to an RFE or Notice of Intent to Deny.

Significance of Unveiling Derogatory Information

Derogatory information, which refers to any adverse or negative details about an applicant, can cast a shadow on the immigration process. This information might pertain to criminal history, previous immigration violations, or other factors that could impact an applicant or petitioner’s eligibility for certain immigration benefits. By exercising their rights under 8 C.F.R. § 103.2(b)(16), individuals and companies can proactively uncover such information, enabling them to better assess their situation and take informed steps to address any potential roadblocks. Knowledge is power, and having the knowledge of the derogatory information USCIS alleges it has allows you to best draft a response or be proactive in how you go about your application or petition to USCIS.

Strategic Steps for Requesting Records and Preparing Responses

Research and Determine Eligibility: Before making a request under 8 C.F.R. § 103.2(b)(16), it’s essential to understand whether you are eligible to access the records. The regulation typically applies to individuals who are the subject of the records, including those who have submitted applications, petitions, or other requests to USCIS. This means that an I-485 applicant, an I-129 petitioner, or similar persons would be eligible. As an H-1B Beneficiary, it is likely you do not qualify to review past I-129s through this regulation, however, you could consider filing a Freedom of Information Act (FOIA) request. 

Submission of Request: To initiate the process, you should submit a written request for access to your records to the appropriate USCIS office. This request should clearly state your full name, date of birth, any relevant case numbers, and a description of the specific records you seek. While the regulation doesn’t require any specific format, it’s advisable to draft the request in a professional and concise manner. If USCIS has specifically alleged derogatory information in an RFE, Notice of Intent to Revoke, Notice of Intent to Deny, or you receive information from Department of State about derogatory information from USCIS, you should provide that request or information in your submission.

Evidence of Identity: Include copies of documents that establish your identity, such as your passport, driver’s license, or green card. This helps USCIS verify your identity and ensures that the records are released to the correct individual.

Engage Legal Counsel: Given the potential implications of uncovering derogatory information, seeking legal counsel is recommended. An experienced immigration attorney can guide you through the process, interpret the records, and formulate a strategic response plan.

Thorough Review and Analysis: Once you receive the requested records, work closely with your attorney to thoroughly review and analyze the information contained within. This step is crucial for identifying any derogatory information, understanding its context, and assessing its potential impact on your immigration case.

Crafting a Response Strategy: If derogatory information is discovered, collaborate with your attorney to develop a well-reasoned response strategy. This strategy may involve addressing the information’s accuracy, providing explanations for any discrepancies, or demonstrating evidence of rehabilitation in cases involving criminal history.

Timely and Comprehensive Response: Your response to the derogatory information should be timely and comprehensive. Provide detailed explanations, supporting documents, and any relevant legal arguments to counter the negative aspects of the uncovered information.

Conclusion

Exercising rights under 8 C.F.R. § 103.2(b)(16) is a powerful tool for individuals and companies navigating the complex landscape of U.S. immigration law. By seeking access to their own records, applicants and companies can unearth derogatory information that may impact their immigration benefits. With a strategic approach, legal guidance, and a commitment to transparency, individuals can effectively address such information, demonstrating their eligibility, rehabilitation, and dedication to their immigration journey. In a system where information is key, the ability to access and respond to derogatory information empowers applicants and petitioners to actively shape their own immigration narratives. It is important to consider working with an experienced immigration attorney when exercising your 103.2(b) rights.

Reddy Neumann Brown PC, located in Houston, Texas, has been serving the business community for over 25 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-effec

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.