BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 674 (De León) - Victims of crime: nonimmigrant status
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|Version: February 27, 2015 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: May 4, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: SB 674 would provide that upon the request of a victim
or victim's family member, a certifying official from a
certifying entity, as defined, is required to certify "victim
helpfulness" on the Form I-918 Supplement B (Form I-918B), when
the victim was a victim of a qualifying criminal activity and
has been helpful, is being helpful, or is likely to be helpful
to the detection or investigation or prosecution of that
criminal activity. This bill would specify timelines within
which a certifying entity must process a Form I-918B request and
would require a certifying entity that receives a request for a
Form I-918B certification to report to the Legislature on or
before January 1, 2017, and annually thereafter, on the number
of Form I-918B certifications requested, signed, and denied.
Fiscal
Impact:
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TCVAP benefits : Potentially significant future increase in
annual state costs (General Fund) for the Trafficking and
Crime Victims Assistance Program (TCVAP), which provides
state-funded benefits (including cash assistance, services,
child care, and food benefits), to the extent a greater number
of victims are able to file formal U Visa applications.
Applicants are eligible for TCVAP when a U Visa application
has been filed with USCIS, and eligibility continues until and
unless a recipient's application for a U Visa has been finally
administratively denied. For every 100 new cases, annual costs
could range from $0.7 million to $1.6 million (General Fund).
Form I-918B certification process : Potential future cost
pressure on certifying entities to implement the process,
including but not limited to the specified timelines within
which to process requests. To the extent the new requirements
are determined to place a higher level of service on local
agencies than required under federal law, local agency
expenditures could qualify as a reimbursable state mandate
(General Fund).
Annual report : Likely minor costs to state and local agencies
acting as certifying entities to compile and submit the annual
report to the Legislature. To the extent local agency
expenditures qualify as a reimbursable state mandate, agencies
could only claim reimbursement of costs incurred if $1,000 or
more (General Fund).
State agency certifying entities : Minor impact to the
Department of Fair Employment and Housing, the Department of
Industrial Relations, and the Department of Justice.
Background: Existing federal law provides for U nonimmigrant status, which
is set aside for victims of certain crimes who have suffered
mental or physical abuse and are helpful to law enforcement or
government officials in the investigation or prosecution of
criminal activity. Congress created the U nonimmigrant visa (U
Visa) with the passage of the Victims of Trafficking and
Violence Protection Act in October 2000. The legislation was
intended to strengthen the ability of law enforcement agencies
to investigate and prosecute cases of domestic violence, sexual
assault, human trafficking, and other crimes, while also
protecting victims of crimes who have suffered substantial
mental or physical abuse due to the crime.
The U Visa extends critical protections to immigrant crime
SB 674 (De León) Page 2 of
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victims by providing temporary lawful status as a "U
nonimmigrant" for up to four years, work authorization, and an
opportunity to adjust to lawful permanent resident status.
To apply (petition) for a U Visa from the U.S. Citizenship and
Immigration Services (USCIS), a petitioner must submit a Form
I-918, Petition for U Nonimmigrant Status (Form I-918) to
request temporary immigration benefits as a victim of certain
qualifying criminal activity, as well as obtain a certification
on the Form I-918 Supplement B, U Nonimmigrant Status
Certification (Form I-918B) from a certifying agency, which must
be a federal, state, or local law enforcement agency,
prosecutor, or authority, or federal or state judge, authorized
to a certify that the petitioner submitting the Form I-918 is a
victim of certain qualifying criminal activity and is, has been,
or is likely to be helpful in the investigation or prosecution
of that criminal activity.
Without a completed Form I-918B, a U Visa application is not
considered complete. This bill creates a rebuttable presumption
that when specified factors are met, a victim or victim's family
member shall have their Form I-918B certified to enable
application for a U Visa.
Proposed Law: This bill would provide that upon the request of
the victim or the victim's family member, a certifying official
from a certifying entity shall certify victim helpfulness on the
Form I-918B when the victim was a victim of a qualifying
criminal activity and has been helpful, is being helpful or is
likely to be helpful in the detection or investigation or
prosecution of that qualifying criminal activity. This bill:
Provides that for the purposes of determining helpfulness
there is rebuttable presumption that a victim is helpful, has
been helpful, or is likely to be helpful to the detection or
investigation or prosecution of that qualifying criminal
activity, if the victim was not refused or failed to provide
information and assistance reasonably requested by the law
enforcement.
Provides that a certifying entity shall process a Form I-918B
certification within 90 days of the request unless the
noncitizen is in removal proceedings in which case the
SB 674 (De León) Page 3 of
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certification shall be processed within 14 days of request.
Provides that a current investigation, filing of charges and a
prosecution or conviction are not required for the victim to
request and obtain a Form I-918B certification from a
certifying official.
Provides that a certifying official may only withdraw the
certification if the victim refuses to provide information and
assistance when reasonably requested.
Specifies that a certifying entity is prohibited from
disclosing the immigration status of a victim or person
requesting the Form I-918B certification, except to comply
with federal law or legal process or if authorized by the
person requesting the certification.
Provides for a certifying entity that receives a request for a
Form I-918B certification to report to the Legislature
annually beginning on January 1, 2017, the number of victims
that requested Form I-918B certifications from the entity, the
number of those that were signed and the number that were
denied.
Defines "certifying entity" as:
o A state or local law enforcement agency;
o A prosecutor;
o A judge;
o Any other authority that has responsibility
for the detection or investigation or prosecution of a
qualifying crime or criminal activity; and,
o Agencies that have criminal detection or
investigative jurisdiction in the respective areas
including but not limited to, child protective
services, the Department of Fair Employment and
Housing, and the Department of Industrial Relations.
Defines "certifying official" as any of the following:
o The head of the certifying entity;
o A person in a supervisory role who has been
designated to issue Form I-918 Supplement B
certification;
o A judge;
o Any other certifying official as defined under
federal law.
Related
Legislation: None applicable.
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Staff
Comments: This bill will potentially result in a greater number
of Form I-918B certifications completed, enabling a greater
number of victims to submit formal U Visa applications to USCIS
for consideration. As a result, a greater number of victims and
their family members may become eligible for state-funded TCVAP
benefits.
The TCVAP, which is administered by the Department of Social
Services (DSS), was authorized by SB 1569 (Chapter 672/ 2006)
and became effective on January 1, 2007. This program assists
eligible non-citizen victims of human trafficking and domestic
violence or other serious crimes by providing them with
state-funded benefits and services. Under TCVAP, eligible
trafficking (T Visa) and serious crime (U Visa) victims may
receive benefits and services under the following state-funded
programs: TCVAP Cash Assistance (for single adults or families
without children), California Food Assistance Program (CFAP),
Cash Assistance Program for Immigrants (CAPI), CalWORKs, and
In-Home Supportive Services (IHSS). The TCVAP-eligible persons
may also receive state-funded Medi-Cal that is administered by
the Department of Health Care Services (DHCS). Data from the DSS
indicates over 5,600 crime victims (under U Visa) served under
the TCVAP cash assistance and CalWORKs programs between
July-December 2014.
According to the DSS implementing instructions for the TCVAP
(ACL 06-60, December 21, 2006), victims are eligible when a U
Visa application has been filed with USCIS, or if a U Visa has
been granted. In determining potential eligibility for these
applicants, county welfare agencies are required to verify that
an application for a U Visa has been filed (which would include
a copy of the Form I-918B certification). Eligibility for
state-funded services continue until and unless the recipient's
application for a U Visa has been finally administratively
denied. While the magnitude of the potential increase is
unknown, for every 100 new cases, annual costs could range
between $0.7 million and $1.6 million (General Fund), dependent
on the services provided.
USCIS data indicates a current backlog of pending U Visa
applications of over 79,000 nationwide as of 2014, likely due in
part to the cap on visa issuances of 10,000 annually. As a
result, the TCVAP caseload is estimated to cumulatively increase
SB 674 (De León) Page 5 of
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as eligibility extends until an applicant receives a final
administrative denial. To the extent the federal cap on U Visa
issuances remains unchanged, the backlog of pending applications
could continue to increase.
According to the U.S. Department of Homeland Security (DHS)
publication, U Visa Law Enforcement Certification Resource
Guide, "Across the United States, law enforcement agencies have
taken different procedural approaches to U visa certifications.
DHS does not endorse or recommend any particular practice, as
the certifying agency has the sole authority on the policies and
procedures it will use in signing law enforcement
certifications."
This bill requires certifying entities to meet specified
processing timelines of within 90 days or within 14 days of a
request, as specified. The potential cost pressure on workload
would vary by agency dependent on the volume of requests
received. To the extent this requirement is determined to place
a higher level of service on local agencies than required under
federal law, local agency expenditures could potentially qualify
as a reimbursable state mandate (General Fund).
Staff
notes, as drafted, it is unclear whether a certifying entity
would be required to certify a Form I-918B for a qualified
victim regardless of whether the certifying entity is
responsible for the investigation or prosecution of the
qualifying criminal activity. An informational notice from the
Los Angeles City Attorney's Office notes that in order for the
City Attorney's Office to sign the form, the case in which the
person was a victim must have been handled by the City
Attorney's Office. Statements from the notice:
"The case in which you were a victim must have been handled by
the Los Angeles City Attorney's Office. That means that the law
enforcement agency that responded to the crime was Los Angeles
Police Department. If your case was handled by the Sheriff's
Department or by any other police department, then this is not
the correct office for you to ask for help."
"If your client was helpful to the Los Angeles Police Department
and not the Los Angeles City Attorney's Office, then your
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request should be made directly to the Los Angeles Police
Department. This Office will not certify based on helpfulness to
the police department alone."
To the extent the provisions of this bill require local agencies
to change current policies and practices, any workload and
associated costs that are determined to place a higher level of
service on local agencies could potentially qualify as a
reimbursable state mandate (General Fund).
Given the scope of information required to be reported, state
and local agencies acting as certifying entities are estimated
to incur minor costs to compile and submit the annual report to
the Legislature. To the extent local agency expenditures qualify
as a reimbursable state mandate, agencies could only claim
reimbursement of costs incurred of $1,000 or more (General
Fund).
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