Yes. A person who was a victim of qualifying criminal activity may request Form I-918 Supplement B certification while the related California investigation or prosecution remains open. California law does not require charges, an arrest of the suspect, a prosecution, or a conviction before a victim can request and obtain the certification. The certifying official still assesses whether the person was a victim of qualifying activity and has been, is being, or is likely to be helpful. The certification is one part of a U visa petition; USCIS makes the immigration decision separately. (California Penal Code § 679.10(g), (k); USCIS U Visa Law Enforcement Resource Guide)

A pending case does not set the certification date

Section 679.10(k)(1) goes further than saying a victim need not wait for trial: it says even a current investigation is not required for a certification request. The issue is the qualifying victimization and helpfulness information available to the certifier, rather than whether the prosecutor has filed or finished a case. A case’s open status may make it easier to identify the investigating agency and contact person, but it neither guarantees nor prevents certification.

California’s statute allows a victim, the victim’s family member, licensed attorney representing the victim, or certain accredited representatives to request certification from an authorized certifying entity. Potential entities include law enforcement, a prosecutor, a judge, and other authorities responsible for detecting, investigating, or prosecuting qualifying criminal activity. Under section 679.10(h), helpfulness is rebuttably presumed if the victim has not refused or failed to provide reasonably requested information or assistance; if the victim reasonably says they were unaware of a cooperation request, the missed cooperation does not defeat that presumption. The request should identify the specific criminal activity, the victim, the agency or court with relevant information, and the help already given or reasonably expected. Preserve any report number, correspondence about cooperation, hearing notice, and the request sent to the certifier. These are practical ways to make the record clear; the statute does not make every item a universal prerequisite. (Penal Code § 679.10(a), (g)–(i))

If the person seeking certification is also accused of conduct in a related matter, the facts need careful separation. California forbids a certifier from refusing to complete and provide Supplement B because of the victim’s criminal history under section 679.10(k)(3)(A). But 8 C.F.R. § 214.14(a)(14)(iii) excludes a person culpable for the qualifying criminal activity being investigated or prosecuted from recognition as its victim. A lawyer should identify the alleged victimization and alleged culpability precisely; a cross-complaint or a separate charge does not answer that question by itself. Do not make statements about an open criminal matter to an agency without advice from the lawyer handling that case.

Certification and U visa eligibility are separate

The certifying official supplies information about the qualifying crime and the victim’s helpfulness on Form I-918 Supplement B. USCIS then decides whether the person satisfies the federal U nonimmigrant requirements. The USCIS resource guide assigns those decisions to different actors; a signed form is not a grant of U status. Conversely, a pending criminal case is not a reason to wait for a verdict before asking about certification.

If a certifying entity declines the request, section 679.10(i)(2) requires a written explanation identifying reasonable requests for cooperation and explaining how the victim refused to cooperate. Keep that response and ask immigration counsel whether the stated reason, the facts, and the correct certifying entity warrant follow-up. Section 679.10(j) sets these processing periods:

  • Ordinarily, the certifying entity must process the request within 30 days.
  • If the noncitizen is in removal proceedings, processing is required within 7 days of the first business day following receipt.
  • The same shorter period applies when the victim asserts that a qualifying family member will lose U-status eligibility within 60 days or fewer because a noncitizen sibling will turn 18, a noncitizen child will turn 21, or the victim will turn 21.

Keep proof of when the agency received the request and tell counsel about a removal case or approaching age limit. These periods govern certification processing; they do not set a deadline for USCIS to grant immigration status. (Penal Code § 679.10(j))

For an overview of the immigration process, see the Law Offices of David S. Chesley’s U visa page. To discuss certification and a related California criminal matter, call (800) 755-5174.