Most illegal immigrants come to the United States to escape a life of poverty and violence. Unfortunately, once they are here they fail to report even the most heinous crimes committed against them for fear of being deported. This fear makes illegal immigrants particularly vulnerable to victimization. In October of 2000, congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act and the Battered Immigrant Women’s Protection Act. The U visa was intended to strengthen the ability of law enforcement agencies to investigate and prosecute crimes, while also protecting those victims who are so vulnerable due to their legal status.
In order to qualify for U nonimmigrant status an immigrant must meet certain requirements:
- she must be the victim of a qualifying criminal activity: domestic violence, sexual assault and rape are amongst the qualified crimes;
- the immigrant must have suffered substantial physical or mental abuse;
- she must possess information about the criminal activity;
- the crime must have occurred in the United States or violate U.S. laws;
- the immigrant must be helpful to law enforcement in the investigation or prosecution of the crime
The first obstacle: Proving helpfulness to law enforcement
After having gone through the traumatizing experience of being victimized and providing assistance in the investigation of the crime; a victim must then obtain law enforcement certification—certifying that in fact she was helpful in the investigation.
One of the biggest obstacles in obtaining a U visa is not necessarily proving helpfulness to law enforcement but getting certification of that helpfulness. A certifying agency, such as a police department, sheriff’s office, a judge or district attorney must sign Form I-918, Supplement B, U nonimmigrant Status Certification. The purpose of this certification is to testify that the immigrant has been helpful or is likely to be helpful in the investigation of the criminal activity. The victim can submit form I-918 to the certifying agency to request certification. Even if the immigrant meets all the other requirements to obtain a U visa, without this signed certification she unable to receive the benefit.
Regrettably, an agency’s decision to sign a certification is entirely discretionary. Neither the Department of Homeland Security nor other federal agencies have authority to request or demand certification. Thus, until now, qualified victims have been at the mercy of the designated certifying agency —sometimes waiting over a year for a signature and often being denied for arbitrary reasons. Current processing times for Stockton are particularly slow, taking up to seven months for a response; while their denial rate is unusually high. Sacramento’s current processing time, for both the police and sheriff’s department, is also fairly slow taking anywhere from 4-6 months. Appealing a denial in Stockton and Sacramento is nearly impossible as officers are difficult to reach and unresponsive.
Certain law enforcement agencies simply refuse to sign any certifications at all, while others create impossible requirements completely unrelated to whether the victim was helpful. This unpredictability is in essence defeating the purpose of the U visa and keeping qualified immigrants from receiving the benefits they were intended to get.
October 2015: Governor Jerry Brown signs Bill SB 647- Victims of Crimes: Nonimmigrant Status
On October 9, 2015, Governor Jerry brown signed Bill SB 647- Victims of Crimes: Nonimmigrant Status, designed to help qualified victims obtain a certification from law enforcement. Where there is a qualified crime, the bill requires law enforcement and other designated agencies to fill out and sign the certification request within 90 days, unless they can prove the victim was uncooperative. If the victim is in deportation proceedings the time limit is only 14 days. The bill further establishes a rebuttable presumption that victims who have
“not refused or failed to provide information and assistance reasonably requested by law enforcement”
have met the helpfulness requirement for certification.
Furthermore, certifying agencies will be held accountable for reporting to the legislation annually, the number of victims requesting certification, the number of those certifications that were signed, and the number that were denied. Expectantly, this accountability requirement will keep agencies from arbitrarily denying certifications to qualified victims.
This bill will become effective January 1, 2016 and will help many qualified victims of crimes obtain certifications and receive the benefits of the U visa nonimmigrant status. Optimistically, we can expect other states to soon follow California and enact their own legislation to assist qualified victims obtain certifications.
Author: Yesenia Rosas