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Rubman v. United States Citizenship & Immigration Services

United States Court of Appeals, Seventh Circuit

August 31, 2015

DAVID RUBMAN, Plaintiff-Appellant,
v.
UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants-Appellees

Argued April 23, 2015.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 5129 -- Charles P. Kocoras, Judge.

Page 382

[Copyrighted Material Omitted]

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For DAVID RUBMAN, Plaintiff - Appellant: Scott D. Pollock, Attorney, Christina Joan Murdoch, Attorney, POLLOCK & ASSOCIATES, Chicago, IL.

For U.S. CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants - Appellees: Craig A. Oswald, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

Before BAUER and SYKES, Circuit Judges, and REAGAN, Chief District Judge.[*]

OPINION

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Sykes, Circuit Judge.

H-1B visas allow U.S. companies to hire noncitizen workers with specialized skills. The United States Citizenship and Immigration Services (" CIS" ), an agency within the Department of Homeland Security (" DHS" ), is responsible for their issuance. David Rubman sent CIS a request under the Freedom of Information Act (" FOIA" ) seeking " copies of all documents reflecting statistics ... about H-1B visa applications" from the last four years. CIS responded with a single document: a data table that the agency had created to respond to his request. Rubman doubted the table's accuracy and insisted that CIS provide the documents he originally asked for: " 'ALL documents reflecting statistics'" about H-1B visa applications, including internal statistical reports and e-mails. CIS refused, insisting that additional records would not be helpful and would " only create additional confusion." Rubman sued, challenging the adequacy of the search that CIS performed in response to his FOIA request. The district court granted summary judgment in favor of the agency.

We reverse. An adequate search is one that was both performed in good faith and reasonably designed to uncover the requested records. CIS failed to conduct an adequate search as required by law when it unilaterally narrowed Rubman's request for " all documents" to a single, newly generated statistical table.

I. Background

A. The H-1B Visa Program

The H-1B visa is a temporary, nonimmigrant visa for workers in " specialty occupations," defined as those that typically require at least a bachelor's degree in a specific field of study. See 8 U.S.C. § 1184(i). Visa holders are able to work in the U.S. for three years (extendable to six), after which they must apply for a different visa or return to their home country (there's no path to citizenship). By statute the number of H-1B visas that can be issued per fiscal year is capped at 65,000. See id. § 1184(g)(1)(A)(vii). An additional 20,000 H-1B visas are available for workers with postgraduate degrees from American universities, and visas awarded to governmental, nonprofit, and educational research entities are not counted toward either limit. See id. § 1184(g)(5)(A)-(C). Visa petitions are submitted by U.S. employers on behalf of the noncitizen workers they want to hire, and the employers must demonstrate that the visa recipients will enjoy the same working conditions and wages as comparable domestic employees. See id. § 1182(n)(1)(A). The H-1B visa program is controversial, and recent proposals to raise the cap have been hotly contested. See, e.g., Tim Henderson, States, Cities Call for Skilled Foreign Workers Amid Abuse Claims, The Pew Charitable Trusts: Stateline (June 8, 2015), http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/6/08/states-cities-call-for-skilled-foreign-workers-amid-abuse-claims.

The process by which CIS administers the H-1B visa program is outlined in 8 C.F.R. § 214.2(h)(8)(ii)(B). In short, the agency projects how many petitions it must process to issue a full complement of visas, taking into account historical rates of denials, withdrawals, and revocations. Employers submit petitions starting on April 1 of each year, and the filing period is closed once CIS receives its target number (which often takes just a few days). If the agency receives more petitions than it projects it will need, a lottery is conducted; selected petitions are issued a receipt number while the others are rejected and returned, along with their filing fees. The

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receipted petitions are then processed and visas awarded. Recipients can start work on October 1.

B. Rubman's FOIA Request

David Rubman is a retired immigration attorney and former adjunct law professor at Northwestern University. On May 10, 2012, he submitted a FOIA request to CIS for the following:

[C]opies of all documents reflecting statistics (specified below) about H-1B visa applications that were assigned a receipt number for [fiscal years 2009, 2010, 2011, and 2012].
The requested statistics for each of the requested years are:
(a) Number of H-1B visa applications for cap-subject initial employment;
(b) Number of approved H-1B visa applications ... ;
(c) Number of denied H-1B visa applications ... ;
(d) Number of withdrawn H-1B visa ...

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