Can you get the signed I-864 with a FOIA?

As noted in our articles, the executed Form I-864 can be requested through a Freedom of Information Act (FOIA) request. Other lawyers have reported that such requests have returned Forms I-864 that are either fully or partially redacted. That result is arguably consistent with protections of the U.S. sponsor’s personal information under the Privacy Act. In my experience, however, FOIAs submitted by the foreign national typically are returned with an unredacted copy of the I-864. Regardless of whether this is erroneous or not on the part of USCIS, FOIA requests have proved an expedient means of acquiring the signed contract.

May the beneficiary compel the sponsor to cooperate in a FOIA request to obtain the signed I-864?

Surprisingly, at least one case suggests the answer could be no. Echon v. Sackett was not I-864 enforcement litigation, but rather a federal district court action against an employer, alleging violations of anti-trafficking and employment laws. 14-cv-03420-PAB-NYW (D. Col. May 2, 2016) (discovery order). In the course of contentious discovery, the plaintiffs sought copies of Forms I-864 filed by the employer-defendant. Though unartfully presented, it appears the plaintiffs sought an order compelling the defendants to sign a FOIA request for the Forms I-864, after the defendants denied possessing the documents.

After noting that Fed. R. Civ. Pro. 34 does not “expressly authorize a court to order a party to sign a release concerning any kind of record,” the Court advised that the plaintiffs should first seek the documents through their own FOIA request, or else via a Rule 45 subpoena.

In my experience, sponsor-defendants have readily agreed to cooperate with a FOIA request to acquire the Form I-864 filed by a sponsor. A plaintiff, of course, may compel production of a document that is within the “possession, custody, or control” of a defendant. Since signing the FOIA request is hardly burdensome, and the document is highly relevant to the claims, opposing litigants generally have not resisted on this issue.