Reclaim The Records vs. United States Citizenship and Immigrations Services (USCIS) and their “Genealogy Program”

Samantha Deshommes,
Chief Regulatory Coordination Division Office of Policy and Strategy
US Citizenship and Immigration Services Department of Homeland Security
20 Massachusetts Avenue NW, Mailstop #2140 Washington, DC 25029-2140

March 8, 2023

RE: DHS Docket No. USCIS-2021-0010
USCIS Genealogy Program, Forms G-1041 and G-1041A

We are Reclaim The Records, a non-profit organization based in the United States, made up of genealogists, historians, journalists, teachers, open government advocates, and open data users1. Our organization advocates for greater public access to genealogical records and historical materials held in government archives, agencies, and libraries.

Founded in 2015, Reclaim The Records (“RTR”) has quickly grown from its roots as one woman’s Freedom of Information lawsuit against a New York City government agency to become one of the largest public records advocacy groups in the United States. We have more than one thousand financial donors, thousands of subscribers to our newsletter, and even more followers of our social media. RTR has successfully reclaimed over 50,000,000 historical records from repositories around the country and published them online for completely free public use, without any paywalls or copyrights.

To regain public access to these historical records, we have successfully pursued litigation against numerous federal, state, and local government agencies over the past few years, including a successful FOIA suit for historical records against your agency, the United States Citizenship and Immigration Services (“USCIS”). With that background, we are writing to you today to explain, in detail, our strong opposition to the proposed fee increase for USCIS’ “Genealogy Program” service.

Our organization’s position on the USCIS Genealogy Program is quite simple: we believe that unfortunately, the entire regime should be scrapped. The Genealogy Program was initially created by USCIS’ predecessor agency with the best of intentions: to offer a separate request pathway, outside of the standard FOIA method, for the public to gain access to the confusing myriad of older historical record types still held by USCIS which had not yet been transferred to the National Archives and Records Administration (“NARA”). The entire purpose of the Genealogy Program was to take these older records, pass them off to more experienced agency staff who knew more about the various types of records that might be involved, and then charge the requestor a small extra fee, beyond the standard fees allowed in statute by FOIA, to access this pool of knowledgeable staff and therefore more timely access to these more complicated or obscure records. Importantly, the then-reasonable extra fee charged to requestors who used the Genealogy Program was supposed to only cover the actual excess costs of administering this alternative request pathway.

Sadly, those early dreams of an optional but speedier pathway to older USCIS records, with searches carried out by knowledgeable staff for a small extra fee, have all been crushed. The current iteration of the Genealogy Program executes the enabling statute in bad faith. Instead of providing timely access to historical records, the Genealogy Program impedes access through its delays far beyond the timeframe permitted under FOIA, and imposes increasingly unsupportable fees for simple document searches, fees that the agency has already raised several times in the recent past. Rather than just providing an optional alternative to FOIA, the existence of the Genealogy Program has been used repeatedly to improperly stifle access to enormous sections of the agency’s older records which ought to also be available under FOIA, where nearly all records are released without charge. And now, we see that USCIS is seeking to increase the Genealogy Program fees once again, now to an exorbitant cost.

USCIS and RTR’s Longstanding Friendship

This is not the first time that USCIS has attempted to raise fees so brazenly on this already- broken Genealogy Program. Nor are they unaware of the ongoing concerns with the fundamental illegality of forcing people to use the program. In our 2021 public comment, we provided the agency a detailed analysis of the laws and regulations that had brought the program into creation, and we explained how the agency is still misinterpreting the law2:

USCIS has taken a broader interpretation of the term research in their current regulations, as they have also classified any request for arbitrary series (or partial series) of records as research even when the file number is provided. When a requestor provides a file number, either having ascertained it via the Index Search, or from their own research, the task of locating the underlying record is relatively simple. At that point, pulling a specific file does not require research, simply a search, just as any other document processed through FOIA does.

It is abundantly clear that USCIS does not consider merely pulling a file as research, subject to a fee, because USCIS already provides Alien Files (A-Files) that were created after May 1, 1951 through FOIA – even if the file number is not known. This was written into the regulations. The Agency picked an arbitrary point in time, before which, A-Files would cost money, and after which, they would not. If an individual was lucky enough to have arrived after May 1, 1951, as part of the processing of the FOIA request for their file, the Agency will search the same master index, retrieve the file number, search for the file from the National Records Center, and provide copies, all for free. Under the current system, retrieving an A-File created on April 30, 1951 would cost $130 if the file number were not known. FOIA does not exempt records that are “old.” If one A-File is subject to FOIA, all A-Files are subject to FOIA. To that end, all agency records are subject to FOIA unless a FOIA exemption applies. There are no blanket FOIA exemptions to the entirety of the records that the Genealogy Program includes. Thus, C-Files, A-Files, Visa Files, Registry Files, and AR-2s are all broadly subject to FOIA. [8 USC] § 1356 does not exempt these records from FOIA any more than it could exempt any other record held by the Agency from FOIA. If USCIS were to successfully claim that the phrase information services applied to the aforementioned series, what would stop them from claiming that applies to any records which contain information (in other words, all records)?

These comments fell on deaf ears, and to date, the agency has continued to refuse to produce most historical records without forcing requesters to pay a fee. That is, the agency is still forcing requestors to use the Genealogy Program, and is thereby collecting hefty fees for public access, rather than allowing the requestor to exercise their right to use FOIA to obtain the exact same documents, which would preclude the agency from collecting these extra fees.

In late 2020, we at RTR submitted an omnibus FOIA request to USCIS, asking for copies of one of each of the many kinds of records to which USCIS claims that the Genealogy Program provides exclusive access, such as older A-Files, AR-2 Forms, and so on. We provided the agency the name of the subject of each record and even provided them the exact file number of the document. All the agency would have to do is pull these records and send us a bill for the copies — but to the extent that FOIA, rather than the expensive Genealogy Program, would allow.

USCIS initially denied this FOIA request, as well as our administrative appeal. It told us that we were not allowed to use FOIA. The agency claimed that their official regulations concerning the existence of the Genealogy Program somehow magically overruled FOIA, and that the agency had the right to force us to pay $65 each time it pulled a file off of a shelf, or in some cases, merely printed it off their computer. We disagreed. The Freedom of Information Act was created specifically to ensure that the public had access to federal records. Some agencies do charge fees for records, but these are fees which are expressly authorized by statute and they are often much less than $65. In many cases, agencies even allow researchers to inspect and duplicate the records themselves on-site without charge.

On July 27, 2021, we at Reclaim the Records sued USCIS in the Southern District Court of New York. Our complaint was simple: the records that the Genealogy Program cover are still subject to FOIA, and must be processed accordingly, if requested3. The agency simply cannot force requesters to pay an extra fee for access to the records—not to mention the fact that FOIA requires a response within approximately one month, while the Genealogy Program queue is an order of magnitude longer than that.

Once served with our lawsuit, USCIS suddenly reversed themselves, and chose not to fight the production of historical records via FOIA rather than trying to mandate their production via the more costly Genealogy Program. On November 15, 2021, less than four months after we sued the agency, USCIS produced all of the documents we sought, and the agency ultimately paid Reclaim The Records $12,000 to cover our legal fees for the lawsuit.

And yet, the agency has not changed its ways in the slightest. In the year since the settlement, Reclaim The Records (both as an organization and also as individual board members) has continued to make dozens of requests to USCIS for historical materials, explicitly making these records requests via FOIA rather than as the more costly Genealogy Program requests. But despite our success in court, every request was again denied by USCIS, citing an imaginary need to pay the Genealogy Program fees.

In short, USCIS is continuing to deny what we believe are perfectly valid FOIA requests for historical records, in order to collect more money by charging fees through a program they – despite our relative success in court – still pretend is mandatory. USCIS’ ongoing failure to change its practice of subverting the FOIA law invites continuing litigation.

One Step Forward, Two Steps Back

We understand that USCIS must look to anyone who interacts with the agency for fee revenue as Congress has chosen not to otherwise provide funding. Despite this, all federal government agencies are still bound by FOIA, which requires that agencies not charge requesters for any request which takes less than two hours of time and does not exceed 100 pages4. In fact, it is USCIS’ general practice to not charge for FOIA requests — at least those that they happen to concede actually are valid FOIA requests. Strangely, USCIS doesn’t even charge for FOIA requests if the request exceeds 100 pages! Yet, a very simple five page file from the Genealogy Program, needing neither review nor redactions, often costs a requestor up to $130 today, and under the proposed new rules and new fee schedule, that five-page historic file may soon cost a requestor $340.

Thus, while USCIS is not in an enviable situation regarding funding, they are continuing to rent- seek from the Genealogy Program requesters by forcing them out of their rightful and legal place in the FOIA queue. The increase is not promised to improve the experience of people who are doing historical or genealogical research, but it is instead a naked cash grab from the many people who need access to USCIS’ unique historic records. Payment of these Genealogy Program fees have unfortunately not resulted in more timely access to records at all, leaving people left in legal limbo while they try to settle estates, repatriate remains, or acquire dual citizenship to which they are entitled. Researchers will now be forced to decide if they can afford to shell out approximately two days of the average American worker’s wages simply to see a photo of their great grandmother, a record that should have been reproduced for them for almost nothing at all, had it been properly recognized as a legitimate FOIA request.

Perhaps USCIS could claim a good faith reason for these proposed fee increases if they provided the historical records somewhat expeditiously. To the agency’s credit, up until late 2020 this was generally the case; most record requests to the Genealogy Program were then measured in months. But since late 2020, the timeline for requestors using this program is now measured in years. The average Index Search and Records Request duo now takes about 26 months from start to finish, with the backlog of requests continuing to increase. Throughout 2020, USCIS’ FOIA queue for all records was considerably longer, taking 6-12 months to process. Researchers who were forced to pay the extra fee at least did get better service the Genealogy Program than FOIA requesters. This is demonstrably no longer the case.

As it turns out, when USCIS is forced to provide timely FOIA responses, they can. In compliance with a ruling from a class action lawsuit in 2020, the agency finally began adhering to FOIA response deadlines in one specific circumstance: for people requesting A-Files numbered above 8 million, which is the vast majority of the requests in USCIS’ FOIA queue.5 When confronted by this ruling from a judge, the agency suddenly found the resources to hire more staff, fix their workflows, and deliver more records in a more timely and legally-observant manner. Anyone requesting an A-File for an immigrant whose number was assigned after May 1, 1951, can now expect their A-File in about 3-5 weeks. While an astounding improvement for USCIS, this actually just corresponds to basic compliance with FOIA.

While that FOIA class action court order provided no specific exclusion for Genealogy Program A-Files (i.e. A-Files numbered under 8 million), USCIS still refuses to process those requests via FOIA at all, let alone without unreasonable delays. According to the ruling of District Court Judge Orrick, “Defendants are permanently enjoined from further failing to adhere to the statutory deadlines for adjudicating A-File FOIA requests, as set forth in 5 U.S.C.§§ 552(a)(6)(A) and (B).6” Yet according to USCIS, millions of A-Files mysteriously fall outside the scope of Judge Orrick’s ruling just because the agency says so.

To add insult to injury, it appears that resources previously dedicated to the Genealogy Program have now been repurposed, in part, to process the requests for these more modern A-Files numbered above 8 million. Thus, Genealogy Program records, including some A-Files, now languish for a year or more awaiting legal review by the FOIA processing staff, all the while USCIS falsely claims that the records aren’t subject to FOIA in the first place, despite USCIS having settled a FOIA lawsuit from our organization (and paid our attorneys fees) concerning this exact topic less than two years ago.

What makes this whole situation even more egregious is that USCIS should not even still possess many of the records that they claim fall under the Genealogy Program! The records that comprise the Genealogy Program are quite old, and are exceedingly rarely required for ongoing agency business. They are almost exclusively case files about long-deceased individuals. Most government agencies in this situation confer with NARA and agree to transfer the custody of these sorts of older records to NARA itself, or obtain permission to dispose of them. If USCIS were to need access to a transferred file — such as to provide proof of citizenship or non- citizenship — there are mechanisms in place whereby the agency could then temporarily recall that file from NARA. And yet, to this day, USCIS remains in possession of millions of historical records that ought to be held by NARA, many of which USCIS itself has already agreed in writing to transfer to NARA.

Simply transferring these historical records to NARA would be far less burdensome on the agency than processing thousands of Genealogy Program requests per year. Each record set in the Genealogy Program has unique issues regarding transfer to NARA, but there are solutions. The primary barrier to their implementation is USCIS’ systemic negligence, both historic and ongoing. Please allow us to now expand on the history of each specific relevant record type, all of which which ought to be held at NARA, but which are still bizarrely held by USCIS:

MiDAS

Access to all of USCIS’s pre-1975 records starts with the Microfilm Digitization Application System (MiDAS), “a mission-critical online interactive application system that provides an automated means for searching and retrieving immigrant records.” Among other things, it contains the most complete record in existence of “who (1) naturalized between 1906 and 1975 and/or (2) arrived in the United States between June 20, 1924 and 1975.” According to MiDAS’ binding disposition schedule (Form SF-115) “A copy of [the] extracted database covering files of persons born 100 years earlier” is to be regularly transferred to the National Archives. These transfers were supposed to start in 2006 and have not yet happened, meaning that USCIS has been out of compliance for nearly two decades!

Contained within MiDAS is the “INS Master Index (microfilmed system of index cards containing personal name indices to information on naturalizations, derivative citizenship, arrivals, expulsions, exclusions, lawful entry, and other topics),” along with a database of these cards, the “Master File,” which includes “information on individuals such as name (last, first, middle), date of birth, place of birth, A-File number, and C-File number.” To put it more simply, without the Master Index, it is difficult, if not impossible, to locate the file numbers for C-Files, Visa Files, Registry Files, and many A-Files, four of the five Genealogy Program records. Additionally, there are many correspondence files that were transferred to NARA a long time ago and whose only complete index is contained within the Master Index. NARA is unable to properly service some of these records that it already holds because their only finding aid is with another agency. In other words, USCIS’ refusal to follow through in its already-signed record transfer schedules is not just hurting citizens making requests, it is also hurting other federal government agencies, and impeding them from doing their official duties.

MiDAS also contains digitized microfilms of the Flexoline Index, the “index [to] Alien Registration records created under the Alien Registration Act of 1940” which contains approximately 12 million names. Generally speaking, records in the Flexoline correspond to and serve as the index to AR-2 Forms, the fifth and final series of Genealogy Program records. USCIS transferred a copy of the entire Flexoline to NARA, database, including the underlying digitized microfilm and NARA is still exploring ways to make this index available. No reason for the delay has been given but we suspect that the issue stems from USCIS’s insistence that they restrict information about individuals for 100 years, while NARA policy is generally to only restrict such information for 75 years. Virtually everyone in the Flexoline is more than 75 years old8, and the only information it contains is basic biographical data. This could be released in its entirely with little consequence. USCIS should work with NARA to make this happen so that researchers can avoid needing to outsource these lookups to the Genealogy Program.

Additionally, USCIS should transfer the contents of MiDAS to NARA, including the underlying digitized index cards. Many of the cards are far more useful than just the scrape of the Master File, as they have more fields of data and more accurate data. NARA could make a public version of MiDAS pertaining to people born before a given date, while dedicated staff could have access to the cards/database for more recently-born individuals. If the public has access to MiDAS, Index Searches will largely be rendered moot, and USCIS will save thousands of hours per year of its employees’ time. We understand that there have been negotiations between NARA and USCIS for many years, but the time has come. This long-overdue records transfer must happen before any self-serving fees increase.

Visas and Registries

Visa Files and Registry Files make up some of the least utilized records of the Genealogy Program. There is generally never a way to locate a file number without first conducting an Index Search, meaning that currently, getting the file will virtually always require a two step $135 process and a 24+ month wait. These records were all required to move to NARA in 2019. They did not. We believe that the main obstacle to the transfer is the fact that NARA has no index to these records, and would thus be unable to service them. The index is contained in MiDAS.

This would not be the first time NARA took control of records to which USCIS has the index. As stated above, this is the case for many of the correspondence files, so there is precedent. However, this would still create an inefficient system, because nearly all researchers would need to first do an Index Search, and then after a year or so of waiting, get the file number and request it from NARA. If NARA could use MiDAS, this problem would largely be solved.

AR-2s

Alien Registration forms already exist at NARA on microfilm, but have not been made available to researchers in the reading room. We believe this barrier to access was due to agreements with the agency at the time of transfer, but there is no need for USCIS to restrict access at all. These records can be made public en masse, as the amount of personally identifying information in them is minimal. These records are all scanned into MiDAS, and they should be transferred to NARA in their digitized form. Federal Regulations suggest that permanent records exceeding 30 years of age should be transferred to NARA 12 so this should not be a controversial move, as the AR-2s’ 30th birthday was during the Nixon Administration.

C-Files

C-Files are currently scheduled as temporary records. This is silly, and is simply an artifact of the retention schedule not being revised since 1968. These records are vastly important to researchers, and if, as is currently planned, they are destroyed in 34 years, then there will no longer be centralized and exhaustive documentation of citizenship for individuals who naturalized as recently as 1956!

While nearly everyone who has a C-File will be dead by 2056, people born much later could have derived citizenship from those petitioners, and the records will have significant evidentiary value. The research value of these files is obvious as well. C-Files need to be rescheduled as permanent records and moved to NARA as well. The majority of C-Files are scanned into MiDAS, and moving millions of them would simply require copying the database. The rest, like Visas and Registries, exist as paper, and would need to be physically transferred (or at least, accessioned in place).

Most of the Genealogy Program series of records closed a long time ago. The most recent, C- Files, closed in 1956. They are all historic by nature, and like nearly all federal records from that era, should have moved to NARA. USCIS is arguably unique as an agency in holding millions of historic permanent records. Generally, all other agencies either transfer historical records to NARA or destroy them after receiving approval from NARA. The fact that USCIS is such an outlier here underscores how imperative it is that they conform to records management best practices.

A-Files

A-Files are a bit of a unique case because the Agency is still using a system established in 1944. However there are millions of historic A-Files interfiled with more recent A-Files at the National Records Center (“NRC”) and other agency offices. The SF-115 adopted in 2009 provided for immediate transfer of all A-Files for individuals born in 1909 and earlier and then transfers every 5 years starting in 2010. Millions of A-Files have transferred to NARA, but millions more remain with USCIS. We can blame decades of poor records management for the sorry state of the records, leading to a problem that today requires a large investment of time and money. As of now, it is not feasible for many of the eligible A-Files to move to NARA. USCIS must work to establish a plan to rectify their historical issues and to fully comply with the A-File record disposition schedule.

USCIS tried to do this earlier in the 2000s, via the Compaction Project, and inexplicably canceled it midway through, resulting in some files becoming even more “missing” than before it had started. However, there are also hundreds of thousands of A-Files which have been indexed in CIS that have yet to transfer. USCIS knows exactly where the files are, so there is no excuse to not send these files to NARA immediately. Additionally, USCIS must comply fully with the Nightingale Court order from District Court Judge Orrick, and process FOIA requests in a timely manner for all A-Files, with any A-Number, not just the arbitrary subset of newer A-Files they feel like processing.

Discussion

The Genealogy Program backlog is all USCIS’ doing, as they are tasking themselves with a mission outside their purview. USCIS is not an archive. It does not have the resources to be an archive and is withholding records from NARA in order to attempt to become one. USCIS does not need these records and there is no conceivable reason why they would want the records.

Luckily, the agency has the ability to assign its IT staff and attorneys to focus on transferring the record to NARA relatively easily. Despite the agency’s frequent concerns about private information being released, these historic records have only marginal information that impact living peoples’ privacy. Making these records available at NARA poses no risk to the public. NARA archivists are specifically trained in handling sensitive records. With relatively little fanfare, the contents of MiDAS can be transferred to NARA. To the extent that NARA deems some of the information therein contained as private, they can create a public access version, but even that information is minimal, considering that in 1975, the latest year in which a record is indexed in MiDAS, all naturalizations were a public record in the first place. There are very few cards in MiDAS that pertain to records that are not approximately identical to other records that are unambiguously public. Any privacy concerns USCIS has regarding historical records are not based on any real risks. The costs to segregate private data in MiDAS are large, but the costs of making its current iteration available at NARA are not. When MiDAS moves to NARA, millions of records can follow, and USCIS can align its records practices with the rest of the Federal Government.

We suggest that USCIS look to the Department of Defense, who in partnership with NARA formalized a system in 2004 to manage millions of case files pertaining to veterans, ranging from the early 20th century to the present day15. Official Military Personnel Files move to NARA facilities around 20 years after a given veterans’ service (depending on the branch), and become public records 62 years after service. Both the Military and NARA will process requests for more recent files pursuant to FOIA requests.

RTR to the Rescue

While USCIS does still outright reject FOIA requests for the five sets of Genealogy Program records we just discussed, they technically process FOIA requests for other kinds of agency records, including internal reports, handbooks, emails, and other historical records not subject to the Genealogy Program regulatory structure. But because USCIS now dedicates approximately than 99% of their FOIA resources to complying with the recent court order regarding the timely production of A-Files, almost all other FOIA requests to the agency, such as these above, now take about three to four years to be processed and produced to the public.

Reclaim the Records, along with our friends in the genealogical community, currently has dozens of outstanding FOIA requests to USCIS, not for genealogical requests at all, but merely for copies of various internal USCIS operational records. These sorts of internal requests, too, much like Genealogy Program requests, have been languishing without production over the course of the last few years.

Under FOIA, agencies have 20 business days to respond to every request. Clearly USCIS has blown past these legal mandates by a factor of ten, and have done it repeatedly for some time now, and for many diverse types of records, both historical and internal. This leaves us with no other option but to continue to litigate this ongoing attempt by the agency to evade and ignore their responsibilities under FOIA.

Today, we at Reclaim The Records filed a complaint in Federal Court to compel USCIS to respond to 89 of the Freedom of Information Act requests that we have submitted over the last four years. The responsive records will surely amount to thousands of pages of records about the internal processes of the Genealogy and FOIA Programs. We urge USCIS to produce these records in compliance with the law. We look forward to obtaining these documents so that we can make more informed policy statements and public comments in the years to come. And, as always, we will freely post online for public use any records we manage to wring out of the agency.

Public records belong to the public. Simple requests for those records are not meant to be capriciously ignored for years on end. Nor are those records supposed to be hoarded in warehouses or ancient computer systems forever, rather than given over to proper archives. Nor are requests for those records meant to be used as an agency’s special piggy bank for extra fees that can be squeezed out of the public, in violation of the fee structures already in place from Freedom of Information laws. We at Reclaim The Records will continue our work to ensure that USCIS, and other government agencies, will eventually learn this.

Cheerfully,
Reclaim The Records