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Using FOIA to obtain I-140 or H-1B Approval

More often than not, a company will provide its employees a copy of their I-140 and/or H-1B approvals. However, companies are not required to share those approvals with their employees and instances arise where the sponsoring company is unwilling to provide the full copy or perhaps the approval is lost or has gone missing. In these instances, what avenues are available to obtain a copy of the I-140 or H-1B approval?

First and foremost, we must remember that I-140 and/or H-1B approvals are the property of the company—they are the Petitioner and you are “merely” the Beneficiary of that petition. That said, an employee has no right to demand the employer provide a copy of the approval nor is the employee typically eligible to request a copy through the “normal” I-824 Application for Action on an Approved Application/Petition with USCIS.

If the company is willing to provide a copy of the I-140 or H-1B approval, that’s the immediate problem solved.

However, if the company has misplaced the approval and therefore cannot provide a copy, the company may file an I-824 Application for Action on an Approved Application/Petition with USCIS while paying a $465 filing fee with USCIS. Once the I-824 is accepted, USCIS will take 12-24 months to provide the requested I-797 Approval Notice for the specific I-140 or H-1B. 

For both employers and employees alike, Freedom of Information Act (“FOIA”) requests are the cheapest and most efficient mechanism to obtain proof of I-140 or H-1B approval. Here, we say “proof” of I-140 or H-1B approval because USCIS will not be providing a copy of the I-797 approval notice. If you want that, USCIS wants their $465 and a properly filed I-824.

Through FOIA, USCIS will provide proof of the approval by way of providing a fullycopy of the requested I-140 or H-1B filing which includes all of USCIS’ relevant notations such as receipt number, date of filing, priority date, and date of approval. For instance when placing a FOIA request for an approved I-140, USCIS is likely to provide a copy of the Form I-140 filed, the supporting Labor Certification (PERM/ETA 9089), and the education/experience documentation requested. On the very first page of the I-140 USCIS will make the aforementioned relevant notations. In our experience, this returned FOIA response documentation has stood on equal footing with the actual Form I-797 Approval Notice in the eyes of USCIS.

Either party—employer or employee—is entitled to file the FOIA request. USCIS does not charge a filing fee for FOIA—it is a free service. Apart from who may file the I-824 as well as the expense inherent in an I-824 filing, FOIA filings are far more efficient than I-824 filings—USCIS typically provides a response within about 4-6 weeks.

While FOIA requests can be made by paper filings with USCIS via Form G-639, USCIS has streamlined the operations through their Freedom of Information Act (FOIA) Immigration Records System (FIRST). When placing the FOIA request, it is important to provide as much information to USCIS as possible so that they may identify and locate the requested file.

By : Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is an attorney at Reddy Neumann Brown PC assisting helping clients and their employees through the phases of the Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients utilizing a relentless and detail-oriented work ethic to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem, he and his team will find a solution, through wisdom and effort. Reddy & Neumann has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.