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A03769
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1371
Session of
2023
INTRODUCED BY HOHENSTEIN, MIHALEK, BURGOS, MADDEN, RABB,
SANCHEZ, HILL-EVANS, KINSEY, GUENST, KHAN AND CERRATO,
JUNE 12, 2023
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 12, 2023
AN ACT
Providing for duties of certifying officials and certifying
agencies regarding the processing of certification form
petitions.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the U
Nonimmigrant Visa Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Certification form." The United States Citizenship and
Immigration Services Federal form I-918, Supplement B, U
Nonimmigrant Status Certification, including any successor form,
which:
(1) is required under 8 U.S.C. § 1184(p)(1) (relating to
admission of nonimmigrants) and 8 CFR 214.14(c)(2)(i)
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(relating to alien victims of certain qualifying criminal
activity); and
(2) confirms that a qualifying criminal activity has
occurred and the victim was helpful, is helpful or is likely
to be helpful to a certifying agency in the detection,
investigation or prosecution of the qualifying criminal
activity.
"Certifying agency." Any of the following:
(1) The Pennsylvania State Police.
(2) A local law enforcement agency with jurisdiction.
(3) A judicial office.
(4) A prosecutor's office.
(5) An agency that has criminal investigative
jurisdiction in the agency's respective areas of expertise.
"Certifying official." The head of a certifying agency or an
individual who has been specifically designated by the head of a
certifying agency to provide certification forms on behalf of
the certifying agency.
"Immigration representative accredited by the United States
Department of Justice." An individual who meets all of the
following criteria:
(1) Is accredited by the United States Department of
Justice to represent individuals before the Board of
Immigration Appeals, a Federal immigration proceeding or the
United States Department of Homeland Security.
(2) Works for a specific nonprofit, religious,
charitable, social service or similar organization that has
been recognized by the United States Department of Justice to
represent the individuals specified under paragraph (1).
(3) Has accreditation under paragraph (1) in good
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standing.
"Judicial office." An office of any of the following:
(1) A judge of the court of common pleas.
(2) A judge of the Commonwealth Court.
(3) A judge of the Superior Court.
(4) A justice of the Supreme Court.
(5) A magisterial district judge.
(6) A judge of the Pittsburgh Magistrate's Court.
(7) A judge of the Philadelphia Municipal Court.
(8) A master appointed by a judge of a court of common
pleas.
"Legal representative." Any of the following who represents
the interests of a petitioner:
(1) An immigration representative accredited by the
United States Department of Justice.
(2) A licensed attorney.
(3) A parent or legal guardian in the case of a child or
an incapacitated or incompetent individual.
(4) A domestic violence counselor/advocate as defined in
23 Pa.C.S. § 6102 (relating to definitions).
(5) A sexual assault counselor as defined in 42 Pa.C.S.
§ 5945.1 (relating to confidential communications with sexual
assault counselors).
(6) Any other third party appointed by the petitioner.
"Petitioner." An individual who submits a certification form
petition under this act.
"Prosecutor's office." An office of any of the following:
(1) The Attorney General.
(2) A deputy attorney general.
(3) A district attorney.
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(4) An assistant district attorney.
"Qualifying criminal activity." As defined in 8 CFR
214.14(a)(9).
"U visa." The U nonimmigrant visa available to an individual
who meets all of the following criteria:
(1) Is a victim of a qualifying criminal activity that
occurred in the United States or was otherwise in violation
of Federal or State law.
(2) Suffered substantial physical or mental abuse as a
result of the qualifying criminal activity.
(3) Was helpful, is helpful or is likely to be helpful
to a certifying agency in the detection, investigation or
prosecution of the qualifying criminal activity. the criteria
in 8 U.S.C. § 1101(a)(15)(U) (relating to definitions).
"Victim of a qualifying criminal activity." As defined in 8
CFR 214.14(a)(14).
Section 3. Duties of certifying officials.
(a) Duties.--A certifying official shall have the following
duties:
(1) Respond to a certification form petition that is
received by the certifying agency.
(2) In collaboration with a subject matter expert on
certification forms and violence against immigrants, develop
a protocol for a certification form petition and make the
protocol publicly accessible to a victim of a qualifying
criminal activity, the victim's legal representative or other
person upon request. The certifying official shall post the
protocol developed under this paragraph on a publicly
accessible Internet website.
(3) Maintain a written record or an electronic record of
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a certification form petition and the response to the
petition by the certifying agency.
(4) Develop or and implement the certifying agency's
language access protocol for a non-English-speaking victim of
a qualifying criminal activity.
(5) Upon receipt of the certification form by a
petitioner or the petitioner's legal representative,
authorize the certification form when the certifying official
determines that the petitioner:
(i) was a victim of a qualifying criminal activity;
(ii) possesses information about the qualifying
criminal activity; and
(iii) was helpful, is helpful or is likely to be
helpful to the certifying agency in the detection,
investigation or prosecution of the qualifying criminal
activity.
(b) Consideration.--For the purpose of determining whether a
petitioner meets the requirements for a certification form under
subsection (a)(5), the following shall apply:
(1) A certifying official shall not consider any of the
following:
(i) The period of time between when the petitioner
was victimized by the qualifying criminal activity and
when the petitioner submitted the petition for a
certification form.
(ii) Whether there is an active investigation of the
qualifying criminal activity.
(iii) Whether a formal statement of charges has been
filed regarding the qualifying criminal activity.
(iv) Whether there was a prosecution or conviction
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of the qualifying criminal activity.
(2) There shall be a rebuttable presumption that a
petitioner meets the requirement under subsection (a)(5)(i)
(a)(5)(iii) if the petitioner has not refused or failed to
provide information or other assistance reasonably requested
by a certifying agency. During the initial outreach with a
petitioner to seek information or other assistance under this
paragraph, the certifying agency shall make a reasonable
effort to communicate with the petitioner in the petitioner's
native language. The inability of the certifying agency to
communicate with a petitioner due to the petitioner's native
language, or the petitioner's lack of response during the
initial outreach due to the communication being conducted
solely in English, shall not be considered a refusal or
failure to provide information or other assistance under this
paragraph.
(c) Authorization.--Upon determining that a petitioner meets
the requirements under subsection (a)(5), a certifying official
shall authorize the certification form by completing and signing
the certification form. If applicable, the certifying official
shall include all of the following information in the
certification form:
(1) The details regarding the nature of the qualifying
criminal activity being investigated or prosecuted.
(2) A description of the helpfulness or likely
helpfulness of the victim of the qualifying criminal activity
to the detection, investigation or prosecution of the
qualifying criminal activity.
(d) Withdrawal.--A certifying agency may only withdraw the
certification form if the victim of the qualifying criminal
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activity refuses to provide information or other assistance
reasonably requested by a certifying agency.
Section 4. Processing of certification form petitions.
(a) Process.--
(1) Except as provided under paragraph (2), no later
than 30 days after receipt of a certification form petition,
a certifying agency shall process the petition. A petitioner
may request an expedited time period for the certifying
agency to process a certification form petition, which shall
be processed no later than 14 days after receipt of the
petition, if the petitioner or the legal representative of
the petitioner under subsection (b) affirmatively establishes
all any of the following:
(i) The petitioner is in a Federal removal
proceeding or has a final order of removal.
(ii) The petitioner provides documentation that the
petitioner or the petitioner's child or sibling would
become ineligible for benefits under 8 U.S.C. § 1184(p)
and (o) (relating to admission of nonimmigrants) by
virtue of the petitioner or the petitioner's child
becoming 21 years of age or the petitioner's sibling
becoming 18 years of age.
(iii) The petitioner has a deadline to respond to a
request for additional evidence from the United States
Citizenship and Immigration Services.
(2) A certifying official may extend the time period by
which a certification form petition must be processed under
paragraph (1) only upon written agreement with the petitioner
or the legal representative of the petitioner under
subsection (b).
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(b) Legal representatives.--A legal representative of a
petitioner may submit a certification form petition to a
certifying agency if the petitioner:
(1) was under 16 years of age on the date that a
qualifying criminal activity first occurred and the legal
representative has been helpful to the certifying agency in
the detection, investigation or prosecution of the qualifying
criminal activity; or
(2) is incapacitated or incompetent and the legal
representative has been helpful to the certifying agency in
the detection, investigation or prosecution of the qualifying
criminal activity.
(c) Reports.--
(1) Upon a certifying official completing and signing
the certification form under section 3(c), the certifying
agency shall return, without a fee or charge, the signed
certification form to the victim of the qualifying criminal
activity and release each relevant page of a report relating
to the qualifying criminal activity, unless already provided
by a law enforcement agency under paragraph (2). The
certifying agency shall have the discretion on when to
release each relevant page of a report relating to the
qualifying criminal activity.
(2) Upon request by a victim of a qualifying criminal
activity or a legal representative of the victim, a law
enforcement agency with whom the victim filed a report
relating to the qualifying criminal activity shall provide a
copy of the report within 14 days of the request to the
victim or the legal representative of the victim.
Section 5. Confidentiality of immigration status.
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A certifying official or certifying agency may not disclose
the immigration status of a victim of a qualifying criminal
activity or a petitioner, except to comply with Federal law or
as authorized by the victim or petitioner.
Section 6. Denial of certification forms.
(a) Notice of denial.--If a certifying official denies the
authorization of a certification form under section 3(c), the
certifying official shall provide a written notice to the
petitioner explaining how the available evidence does not
support a finding that the petitioner meets the requirements for
a certification form under section 3(a)(5). Except in the case
of an expedited time period to process a certification form
petition under section 4(a)(1), the certifying official shall
provide the written notice under this subsection to the
petitioner within 30 days of receipt of the petition. The
certifying official shall state the reasons for the denial in
the written notice under this subsection, including any of the
following reasons:
(1) Lack of jurisdiction over the certification form
request due to the certifying agency not having been involved
in the detection, investigation or prosecution of the
qualifying criminal activity. If the denial is for the reason
specified under this paragraph, the certifying official shall
refer the petitioner to the appropriate certifying official
within 30 days of providing the written notice under this
subsection. If the certifying official fails to refer the
petitioner to the appropriate certifying official within the
30-day period specified under this paragraph, the certifying
official shall authorize the certification form in accordance
with section 3(c) or provide a subsequent written notice to
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the petitioner stating another reason for the denial.
(2) The petitioner was not a victim of a qualifying
criminal activity.
(3) Lack of helpfulness, including documented instances
of failure or refusal to comply with reasonable requests for
information or other assistance. The petitioner has refused
or failed to provide information or other assistance
reasonably requested by a certifying agency under section
4(a)(1)(ii). If the denial is for this reason, the notice of
denial shall include information about the specific
documented instances of the petitioner's refusal or failure.
(b) Review.--Upon receiving written notice under subsection
(a), the petitioner or the legal representative of the
petitioner may provide supplemental information to the
certifying agency and request that the petition be reviewed by
the certifying agency.
(c) Consideration.--In reviewing a petition under subsection
(b), a certifying agency may not consider any other factors not
specified under subsection (a) when deciding whether to
authorize a certification form.
(d) Notice.--If, after authorizing a certification form, a
certifying official or certifying agency determines that the
recipient of the certification form was not the victim of a
qualifying criminal activity or the recipient unreasonably
refuses to assist in the detection, investigation or prosecution
of the qualifying criminal activity, the certifying official or
certifying agency may provide written notice of the
determination to the United States Citizenship and Immigration
Services.
Section 7. Training program for certifying agencies and
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certifying officials.
In collaboration with subject matter experts on certification
forms and violence against immigrants, a certifying agency shall
provide an annual training program to certifying officials for
the purposes of effectuating this act. The training program
shall be compulsory and include all of the following subjects:
(1) The impacts of qualifying criminal activities on
victims and their safety.
(2) Compliance with certification form protocols.
(3) The roles of certifying officials.
(4) Collaborations with victim service and immigrant
advocacy providers.
Section 8. Construction.
(a) U visas.--The authorization of a certification form
under this act shall not be construed as sufficient evidence
that an applicant for a U visa has met all eligibility
requirements for a U visa or guarantee the applicant will
receive Federal immigration relief.
(b) Limitation.--Nothing in this act shall be construed to
limit the manner in which a certifying officer or certifying
agency describes whether a victim of a qualifying criminal
activity has cooperated or has been helpful to the certifying
official or the certifying agency during a Federal immigration
proceeding regarding a U visa.
Section 9. Effective date.
This act shall take effect in 60 days.
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