U-Visa I-918 Form Mandate

Constitution Requires the State to Reimburse Local Governments for Mandated Activities. State law tasks the Commission on State Mandates with determining whether new state laws or regulations affecting local governments create state-reimbursable mandates. Typically, the process for determining whether a law or regulation is a state-reimbursable mandate takes several years. State law further requires our office to analyze any new mandates identified by the Commission as a part of our annual analysis of the state budget. In particular, state law directs our office to report on the annual state costs for new mandates and make recommendations to the Legislature as to whether the new mandates should be repealed, funded, suspended, or modified. Below, we discuss the U-Visa I-918 Form mandate, which is one of two newly identified state mandates in the 2020-21 budget.

Background

U-Visa. Victims of crime without legal status in the U.S. who cooperate with the investigation of the crimes against them and meet certain other requirements are eligible to apply for a U-Visa. A U-Visa provides an individual with various benefits, such as the ability to legally live and work in the U.S. for four years (and potentially the ability to apply for legal status) and to petition for a U-Visa for qualifying family members. The intent of the U-Visa is to help victims without legal status feel safer reporting crimes and cooperating with law enforcement agencies in the investigation and prosecution of crimes. To apply for a U-Visa, victims must go through certain steps such as the completion and submission of various applicable federal forms. One key form is the Federal Form I-918, which must be submitted to U.S. Citizenship and Immigration Services (USCIS). USCIS will evaluate the completed Federal Form I-918, along with other information (such as a background check), to determine whether to approve or deny the request for a U-Visa.

Completing the Federal Form I-918. In completing the Federal Form I-918, federal law requires applicants to provide information and supporting documentation demonstrating that all specified federal requirements have been met. Specifically, the applicant must:

Be a victim of a qualifying federal, state, or local crime (such as domestic violence, murder, or perjury) that occurred in the U.S.
Have suffered substantial physical or mental abuse as a result of having been a victim of the crime.
Possess information concerning the crime.
Have been or is likely to be helpful in the investigation or prosecution of the crime.

Federal law also requires applicants provide a certification document—completed by certain government officials within an agency responsible for criminal investigations and prosecutions (such as a police department, district attorney’s office, or child protective services agency)—certifying that the applicant (1) is a victim of a qualifying crime and (2) has been or is likely to be helpful in the investigation or prosecution of that crime. While applicants must submit the certification document in order for their Federal Form I-918 to be approved, government officials are not required to complete the certification document. Similarly, officials are able to withdraw a certification document at any time if an applicant stops cooperating.

State Law Now Requires Completion of I-918 Certification Document Upon Request. Chapter 721 of 2015 (SB 674, de León) requires that upon the request of a victim or a victim’s family member, certain officials complete a certification document if the individual is a victim of a qualifying crime and has been or is likely to be helpful to the investigation or prosecution of the crime. Chapter 721 also requires the certifying official to (1) include certain information in the document (such as details about the crime being investigated and the victim’s helpfulness) and (2) complete the document within certain time periods. Chapter 721 continues to allow officials to subsequently withdraw this certification document, but only if the victim refuses to provide information and assistance when reasonably requested. Finally, Chapter 721 requires agencies that receive requests for the completion of such documents to report annually on the number of victims that submitted requests, the number of documents signed, and the number of documents denied.

Commission on State Mandates Determined Legislation Created a State-Reimbursable Mandate. The Commission found that Penal Code Section 679.10—as added by Chapter 721—imposes new state-mandated activities and costs on local governments by requiring local governments to complete certification documents within specified deadlines, and to submit annual reports about the certifications to the Legislature. The Commission’s decision makes reimbursable by the state costs incurred by a local government to update policies and procedures, provide training, process requests from victims, complete certification documents for approved requests, and to report to the Legislature. The Commission estimates that the initial claims from local governments for costs incurred by the mandate since 2016 could range between $2.3 million and $3.3 million. Additionally, the Commission estimates that the annual costs to the state to pay this reimbursable state mandate going forward could range between $605,000 and $1.3 million.

Governor’s Budget

Governor Funds Mandate. The Governor’s 2020-21 budget proposes $3.3 million General Fund to reimburse local agencies for the costs they incurred complying with the U-Visa I-918 Form, Victims of Crime: Nonimmigrant Status statute while it was under review by the Commission. Funding the mandate would make local compliance with the above requirements mandatory in 2020-21 and the state responsible for the costs incurred by local governments.

LAO Comments

Future Fiscal Effects Difficult to Estimate. Since the enactment of Chapter 721, workload has increased for certain state and local agencies as completion of the certification document is no longer discretionary and annual reporting is now required. Moving forward, it is difficult to determine whether the level of workload and the associated costs will change from where they are now. This is because the level of future workload will primarily depend on the number of victims of crime without legal status that request certification documents, which could be higher or lower to an unknown extent. On the one hand, workload could potentially increase further as more victims request completion of this document. This could happen for various reasons, such as if there is more awareness that Chapter 721 generally eliminates agency discretion on whether to complete the document. On the other hand, it is possible that workload could decline as fewer victims request completion of this document. This could happen for various reasons, such as victims choosing to not participate in the U-Visa program and request the document due to fears that participation may increase chances for deportation under other federal immigration policies.

Candidate for Reasonable Reimbursement Methodology (RRM). The RRM allows for interested parties (such as local governments) to request to be reimbursed for the costs of mandated local activities on per unit basis rather than reimbursing actual costs. This mandate could be a good candidate for RRM because it is primarily administrative in nature. Additionally, an RRM might enhance local government’s compliance with this mandate as it alleviates the administrative burden of tracking and reporting costs. (To learn more about RRM see our March 17, 2016 analysis in The 2016-17 Budget: Local Government Mandates—Reasonable Reimbursement Methodology.)

Recommendation

Fund Mandate. The intent of Chapter 712 was to promote increased victim reporting of crime and cooperation in the investigation and prosecution of crimes. The Commission has found that a local government’s activities related to the completion of the certification document constitute a reimbursable mandate. Given the state’s interest in encouraging individuals to participate in the reporting of crime, we recommend funding this mandate.