U Visa Certification Requests and State Mandamus

A U visa petition needs a certification signed by a law-enforcement or judicial official. Federal law leaves signing to the agency's discretion; California's statute imposes duties and deadlines, and that is where a writ becomes possible.

Victims of certain crimes who help law enforcement may petition for a U visa. The petition must include a certification, Form I-918 Supplement B, signed by an official of a certifying agency such as a police department, prosecutor's office or court. Many victims first meet that requirement in the setting of a family court case, a protective order or a prosecution of a family member. When the certifying agency does not answer, the question is whether anything can compel it to.

The federal framework

The certification requirement comes from 8 U.S.C. § 1184(p)(1) and is implemented in 8 C.F.R. § 214.14. Federal law does not require an agency to sign. Whether to certify is left to the agency, which is why a federal mandamus claim against a local police department or court is not available: the mandamus statute, 28 U.S.C. § 1361, reaches federal officers, a limit explained in State vs. Federal Mandamus Law, and federal law supplies no clear duty to certify in any event. The regulation also requires that the certification be signed within six months before the petition is filed, so an unanswered request can cost a victim time even after it is eventually signed.

California's statute

California made certification a legal duty. Penal Code § 679.10, enacted in 2015 and most recently amended by Assembly Bill 1261 (Stats. 2023, ch. 679), effective January 1, 2024, provides that a certifying official "shall" certify victim helpfulness on the Supplement B when the person was a victim of a qualifying crime and has been, is being or is likely to be helpful to the detection, investigation or prosecution of that crime. In its current form, the statute:

• creates a rebuttable presumption of helpfulness where the victim has not refused or failed to provide reasonably requested information or assistance;
• requires a certifying entity that denies a request to explain the denial in writing, including the specific requests for cooperation and how the victim refused to cooperate;
• requires processing within 30 days of the request, or within 7 days after the first business day following receipt if the person is in removal proceedings, and applies the same 7-day period when a qualifying family member will lose eligibility within 60 days because of age;
• requires certifying entities to report annually to the Legislature on the number of requests received, certifications signed and denials.

A companion provision, § 679.11, addresses certifications for T visas. Because the statute has been amended, deadlines quoted from earlier versions should not be relied on.

Where a writ fits

Because § 679.10 uses mandatory language and fixed processing deadlines, the natural remedy for a certifying entity that does not act, like other claims against state and local agencies, is a petition for a writ of mandate under California's general mandate statute, discussed in California's Writ of Mandate Under CCP § 1085. Two distinctions matter:

• Processing versus outcome. The duty to process a request within the statutory period is the clearest ministerial duty in the statute. Whether a particular victim was helpful involves judgment, even with the presumption, so a writ that compels a decision is easier to justify than one that compels a signature.
• The agency's own records. The determination rests on facts the agency holds. A petition should show what was requested, when, from whom, and what information the victim provided.

Outside California, the existence and content of any certification statute must be checked State by State. Each statute must be read on its own terms, and the local mandamus procedure in that State governs. How the writ operates against local agencies more generally is discussed in Mandamus Against Local Government.

After certification

Once the petition reaches USCIS, delay becomes a federal question. A pro bono case that went to federal court over U visa processing is described in Marku v. Zuchowski; practice in one district with notable U visa litigation is profiled in USCIS Mandamus in EDMI; and the service center that handles U visa and related humanitarian petitions is discussed in HART Service Center Delays. Victims of domestic violence may also qualify for a self-petition; see VAWA Mandamus.

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