Bill Text: CA AB1753 | 2019-2020 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Immigration consultants.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2019-08-30 - In committee: Held under submission. [AB1753 Detail]
Download: California-2019-AB1753-Amended.html
Section 22441 of the Business and Professions Code is amended to read: his or her their office a notice that shall be at least 12 by 20 inches with boldface type or print with each character at least one inch in height and width in English and in the native language of the immigration consultant’s clientele, that contains the following information: his or her their own recognizance, pending trial or appeal. An immigration
consultant who has been issued a bond as described in Section 22443.1 on or before December 31, 2006, shall submit the fingerprint images and related information to the Department of Justice on or before July 1, 2007. himself or herself themself out as being an immigration specialist, immigration consultant, or any other title or description reflecting an expertise in immigration matters shall not advertise in any manner whatsoever that he or she is they are a notary public.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
Bill Title: Immigration consultants.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2019-08-30 - In committee: Held under submission. [AB1753 Detail]
Download: California-2019-AB1753-Amended.html
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Amended
IN
Assembly
April 11, 2019 |
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Amended
IN
Assembly
March 25, 2019 |
CALIFORNIA LEGISLATURE—
2019–2020 REGULAR SESSION
| Assembly Bill | No. 1753 |
| Introduced by Assembly Member Carrillo |
February 22, 2019 |
An act to amend Section 22441 of the Business and Professions Code, and repeal Sections 22442.2, 22442.4, 22443.1, 22443.2, and 22443.3 of, and to amend, repeal, and add Sections 22440, 22441, 22441.1, and 22449 of, the Business and Professions Code, and to amend and repeal Section 8223 of the Government Code, relating to immigration consultants.
LEGISLATIVE COUNSEL'S DIGEST
AB 1753, as amended, Carrillo.
Immigration consultants.
Existing law prohibits any person, for compensation, from engaging in the business or acting in the capacity of an immigration consultant in this state, unless that person complies with state law governing the practice of immigration consultants, is an attorney, or is authorized by federal law to represent persons before the Board of Immigration Appeals or the United States Citizenship and Immigration Services. Existing law specifies that a person engages in the business or acts in the capacity of an immigration consultant when that person gives nonlegal assistance or advice on an immigration matter. Existing law defines an “immigration matter” as any proceeding, filing, or action affecting the immigration or citizenship status of any person that arises under immigration and naturalization law, executive order or presidential proclamation, or action of the United States Citizenship and
Immigration Services, the United States Department of State, or the United States Department of Labor. Existing law establishes both criminal and civil penalties for a violation of specified provisions related to immigration consultants. Under existing law, a notary public qualified and bonded as an immigration consultant is authorized to enter data on immigration forms, as provided.
This bill, beginning on January 1, 2021, would make it unlawful for a person, for compensation, other than a person authorized to practice law in this state, or a person authorized to represent others under federal law in an immigration matter, as specified, to provide advice or services related to any immigration matter or to hold themself out as an immigration consultant or as a person authorized
to provide advice in immigration matters. This bill would expand the definition of immigration matter to include proceedings, filings, and actions arising under action of the United States Department of Justice, the United States Department of Homeland Security, and the Board of Immigration Appeals. Because this bill would expand the scope of a crime, the bill would impose a state-mandated local program. The bill, beginning January 1, 2021, would require the Secretary of State, in coordination with specified state agencies, to develop an internet website that would include specified information related to immigration services available in California, including information related to persons recognized or accredited as authorized providers of immigration services by the United States Department of Justice. The bill,
beginning January 1, 2021, would remove notaries public from provisions relating to filing an application under the federal program referred to as the deferred action program. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 22440 of the Business and Professions Code is amended to read:22440.
(a) It is unlawful for any person, for compensation, other than persons authorized to practice law or authorized by federal law to represent persons before the Board of Immigration Appeals or the United States Citizenship and Immigration Services, to engage in the business or act in the capacity of an immigration consultant within this state except as provided by this chapter.(b) This section shall remain in effect only until
January 1, 2021, and as of that date is repealed.
SEC. 2.
Section 22440 is added to the Business and Professions Code, to read:22440.
(a) It is unlawful for any person, for compensation, other than a person described in subdivision (b), to provide advice or services related to any immigration matter described in Section 22441, or to hold themself out as an immigration consultant or as a person authorized to provide advice in immigration matters.(b) The following persons may, for compensation, provide advice or services involving immigration matters within this state consistent with the requirements of this chapter:
(1) A person authorized to practice law.
(2) A person authorized by federal law to represent persons before the United States
Department of Homeland Security or the United States Department of Justice.
(c) It is unlawful for any person or entity, other than those authorized in this state to provide advice or services related to immigration matters, to advertise or otherwise hold themself out to the public as an entity or person with specialized knowledge in immigration law or procedure. It is unlawful for any person or entity, other than those authorized in this section to provide advice or services related to immigration matters, to advertise using the term “immigration consultant,” “immigration specialist,” “notary public,” “notary,” “licensed,” “attorney,” or “lawyer,” or to literally translate any of those terms for any advertising purposes.
(d) This section shall become operative on January 1, 2021.
SECTION 1.SEC. 3.
Section 22441 of the Business and Professions Code is amended to read:22441.
(a) A person engages in the business or acts in the capacity of an immigration consultant when that person gives nonlegal assistance or advice on an immigration matter. That assistance or advice includes, but is not limited to, the following:(1) Completing a form provided by a federal or state agency but not advising a person as to their answers on those forms.
(2) Translating a person’s answers to questions posed in those forms.
(3) Securing for a person supporting documents, such as birth certificates, which may be necessary to
complete those forms.
(4) Submitting completed forms on a person’s behalf and at their request to the United States Citizenship and Immigration Services.
(5) Making referrals to persons who could undertake legal representation activities for a person in an immigration matter.
(b) For purposes of this chapter:
(b)
(1) “Immigration matter” means any proceeding, filing, or action affecting the immigration or citizenship status of any person that arises under immigration and naturalization law, executive order or presidential proclamation, or action of the United States Citizenship and Immigration Services, the United States Department of State, the United States Department of Justice, the United States Department of Homeland Security, the Board of Immigration Appeals, or the United States Department of Labor.
(c)
(2) “Compensation” means money, property, or anything else of value.
(d)
(c) Every person engaged in the business or acting in the capacity of an immigration consultant shall only offer nonlegal assistance or advice in an immigration matter as defined in subdivision (a). Any act in violation of subdivision (a) is a violation of this chapter.
(d) This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 4.
Section 22441 is added to the Business and Professions Code, to read:22441.
(a) A person engages in the business of providing immigration advice or services if that person, for compensation, give legal or nonlegal assistance or advice on an immigration matter. That assistance or advice includes, but is not limited to, the following:(1) Providing legal advice regarding an immigration matter, including, but not limited to, assessing whether an individual is eligible for any immigration benefit, otherwise assisting an individual in making that determination, or advising as to the consequences of applying for, or of not applying for, any immigration benefit.
(2) Completing any immigration form provided by a federal or state agency for a person.
(3) Advising a person as to their answers on any immigration form provided by a federal or state agency.
(4) Translating a person’s answers to questions posed in any immigration form provided by a federal or state agency.
(5) Securing for a person supporting any document, such as a birth certificate, that may be necessary to complete any immigration form provided by a federal or state agency.
(6) Submitting completed forms on a person’s behalf, and at their request, to the United States Citizenship and Immigration Services, the United States Department of State, or the United States Department of Justice.
(7) Making referrals to persons who could undertake legal representation activities for
a person in an immigration matter, unless authorized by the State Bar of California as an attorney referral service.
(b) For purposes of this chapter:
(1) “Immigration matter” means any proceeding, filing, or action affecting the immigration or citizenship status of any person that arises under immigration and naturalization law, executive order or presidential proclamation, or action of the United States Department of Homeland Security, the United States Department of State, the United States Department of Justice, or the United States Department of Labor.
(2) “Compensation” means money, property, or anything else of value.
(c) Any act in violation of subdivision (a) is a violation of this chapter.
(d) This section shall become operative on January 1, 2021.
SEC. 5.
Section 22441.1 of the Business and Professions Code is amended to read:22441.1.
(a) A person engaged in the business or acting in the capacity of an immigration consultant shall satisfactorily pass a background check conducted by the Secretary of State.(b) The Secretary of State shall disqualify an individual from acting as an immigration consultant for any of the following reasons:
(1) Conviction of a felony.
(2) Conviction of a disqualifying misdemeanor where not more than 10 years have passed since the completion of probation. A conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this paragraph. The list of disqualifying
misdemeanors shall be the same as the disqualifying misdemeanors applicable to notaries public appointed and commissioned pursuant to Chapter 3 (commencing with Section 8200) of Division 1 of Title 2 of the Government Code.
(3) Failure to disclose any arrest or conviction in the disclosure form required pursuant to subdivision (c) of Section 22443.1.
(c) The Secretary of State shall complete a background check on every person engaged in the business or acting in the capacity of an immigration consultant who was bonded and qualified pursuant to this chapter on or before December 31, 2006.
(d) The Secretary of State shall not file a bond, disclosure form, or photograph from a person who has failed to pass the background check required by this section.
(e) This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 6.
Section 22441.1 is added to the Business and Professions Code, to read:22441.1.
(a) The Secretary of States shall, in coordination with the California Department of Justice and the State Bar of California, establish an internet website that does all of the following:(1) Informs the public about how an organization may become recognized or an individual may become accredited as an authorized provider of immigration services by the United States Department of Justice.
(2) Provides the public with a list, that is updated annually, of recognized entities and individuals who are accredited as authorized providers of immigration services by the United States Department of Justice.
(3) Provides
the public with a list of entities funded by the states that provide assistance in immigration matters.
(4) Provides any other legal resources related to immigration matters.
(5) Provides the public with information of any complaint hotline regarding immigration related services and provides the public with information on how to file a complaint with the appropriate local and state agencies.
(b) This section shall become operative on January 1, 2021.
SEC. 7.
Section 22442.2 of the Business and Professions Code is amended to read:22442.2.
(a) An immigration consultant shall conspicuously display in(1) The full name, address, and evidence of compliance with any applicable bonding requirement including the bond number, if any.
(2) A statement that the immigration consultant is not an attorney.
(3) The services that the immigration consultant provides and the current and total fee for each service.
(4) The name of each immigration consultant employed at each location.
(b) Prior to providing any services, an immigration consultant shall provide the client with a written disclosure in the native language of the client that shall include the following information:
(1) The immigration consultant’s name, address, and telephone number.
(2) The immigration consultant’s agent for service of process.
(3) The legal name of the employee who
consulted with the client, if different from the immigration consultant.
(4) Evidence of compliance with any applicable bonding requirement, including the bond number, if any.
(c) (1) Except as provided in paragraph (2) or (3), an immigration consultant who prints, displays, publishes, distributes, or broadcasts, or who causes to be printed, displayed, published, distributed, or broadcasted, any advertisement for services as an immigration consultant, within the meaning of Section 22441, shall include in that advertisement a clear and conspicuous statement that the immigration consultant is not an attorney.
(2) Notwithstanding paragraph (1), a person engaging in the business or acting in the capacity of an immigration consultant who is not licensed as an attorney in any state or territory of the
United States, but is authorized by federal law to represent persons before the Board of Immigration Appeals or the United States Citizenship and Immigration Services, shall include in any advertisement for services as an immigration consultant a clear and conspicuous statement that the immigration consultant is not an attorney but is authorized by federal law to represent persons before the Board of Immigration Appeals or the United States Citizenship and Immigration Services.
(3) Notwithstanding paragraph (1), a person who is not an active member of the State Bar of California, but is an attorney licensed in another state or territory of the United States and is admitted to practice before the Board of Immigration Appeals or the United States Citizenship and Immigration Services, shall include in any advertisement for immigration services a clear and conspicuous statement that he or she is
they are not an attorney licensed to practice law in California but is an attorney licensed in another state or territory of the United States and is authorized by federal law to represent persons before the Board of Immigration Appeals or the United States Citizenship and Immigration Services.
(4) If an advertisement subject to this subdivision is in a language other than English, the statement required by this subdivision shall be in the same language as the advertisement.
(d) This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 8.
Section 22442.4 of the Business and Professions Code is amended to read:22442.4.
(a) A person engaged in the business or acting in the capacity of an immigration consultant shall submit to the Department of Justice, fingerprint images and related information required by the Department of Justice for the purpose of obtaining information as to the existence and content of a record of state and federal convictions and arrests and information as to the existence and content of a record of state and federal arrests for which the Department of Justice establishes that the person is free on bail, or on(b) The Department of Justice shall forward the fingerprint images and related information received pursuant to subdivision (a) to the Federal Bureau of Investigation and request a federal summary of criminal information.
(c) The Department of Justice shall review the information returned from the Federal Bureau of Investigation and compile and disseminate a response to the Secretary of State pursuant to paragraph (1) of subdivision (p) of Section 11105 of the Penal Code.
(d) The Secretary of State shall request from the Department of Justice subsequent arrest notification service, pursuant to Section
11105.2 of the Penal Code, for each person who submitted information pursuant to subdivision (a).
(e) The Department of Justice shall charge a fee sufficient to cover the cost of processing the requests described in this section.
(f) The Secretary of State shall not post on its Internet Web site internet website information received from the Department of Justice.
(g) This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 9.
Section 22443.1 of the Business and Professions Code is amended to read:22443.1.
(a) (1) Prior to engaging in the business, or acting in the capacity, of an immigration consultant, each person shall file with the Secretary of State a bond of one hundred thousand dollars ($100,000) executed by a corporate surety admitted to do business in this state and conditioned upon compliance with this chapter. The total aggregate liability on the bond shall be limited to one hundred thousand dollars ($100,000).(2) The bond may be terminated pursuant to Section 995.440 of, and Article 13 (commencing with Section 996.310) of Chapter 2 of Title 14 of Part 2 of, the Code of Civil Procedure.
(b) The bond required by this section shall be in favor of, and payable to, the
people of the State of California and shall be for the benefit of any person damaged by any fraud, misstatement, misrepresentation, unlawful act or omission, or failure to provide the services of the immigration consultant or the agents, representatives, or employees of the immigration consultant, while acting within the scope of that employment or agency.
(c) An immigration consultant who is required to file a surety bond with the Secretary of State shall also file a disclosure form with the Secretary of State that contains all of the following information:
(1) The immigration consultant’s name, date of birth, residence address, business address, residence telephone number, and business telephone number.
(2) The name and address of the immigration consultant’s agent for service of process if one is required to be or
has been appointed.
(3) Whether the immigration consultant has ever been convicted of a violation of this chapter or of Section 6126.
(4) Whether the immigration consultant has ever been arrested or convicted of a crime.
(5) If applicable, the name, business address, business telephone number, and agent for service of process of the corporation or partnership employing the immigration consultant.
(d) An immigration consultant shall notify the Secretary of State’s office in writing within 30 days when the surety bond required by this section is renewed, and of any change of name, address, telephone number, or agent for service of process.
(e) The Secretary of State shall post information on
its Internet Web site internet website demonstrating that an immigration consultant is in compliance with the bond required by this section and has satisfactorily passed the background check required under Section 22441.1, and shall also post a copy of the immigration consultant’s photograph. The Secretary of State shall ensure that the information is current and shall update the information at least every 30 days. The Secretary of State shall only post this information and photograph on its Internet Web site internet website if the person has filed and maintained the bond, filed the disclosure form and photograph required to be
filed with the Secretary of State, and passed the background check required by Section 22441.1.
(f) The Secretary of State shall develop the disclosure form required to file a bond under this section and make it available to any immigration consultant filing a bond pursuant to this section.
(g) An immigration consultant shall submit all of the following with the disclosure form:
(1) A copy of valid and current photo identification to determine the immigration consultant’s identity, such as a California driver’s license or identification card, passport, or other identification acceptable to the Secretary of State.
(2) A photograph of himself or herself
themself with the dimensions and in the style that would be acceptable to the United States Department of State for obtaining a United States passport, as instructed by the Secretary of State.
(h) The Secretary of State shall charge and collect a filing fee to cover the cost of filing the bond.
(i) The Secretary of State shall enforce the provisions of this chapter that govern the filing and maintenance of bonds.
(j) This section does not apply to employees of nonprofit, tax-exempt corporations who help clients complete application forms in an immigration matter free of charge or for a nominal fee, including reasonable costs, consistent with that authorized by the Board of Immigration Appeals under Section 292.2 of Title 8 of the Code of Federal Regulations.
(k) This section shall become operative on July 1, 2014.
remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 10.
Section 22443.2 of the Business and Professions Code is amended to read:22443.2.
(a) The Secretary of State shall issue a cease and desist order to a person subject to this chapter’s provisions who has failed to comply with the provisions governing the filing and maintenance of bonds or who does not satisfactorily pass a background check required by Section 22441.1, and shall give notice of the person’s noncompliance or failure to satisfactorily pass the background check to the Attorney General. Prior to issuing a cease and desist order to a person pursuant to this subdivision, the Secretary of State shall provide the person with notice and an opportunity to demonstrate that grounds do not exist for disqualification.(b) For orders issued for failure to comply with the provisions governing the
filing and maintenance of bonds, the order shall include a statement that notice of the person’s noncompliance shall be sent to the Attorney General.
(c) This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 11.
Section 22443.3 of the Business and Professions Code is amended to read:22443.3.
(a) It is unlawful for any person to disseminate by any means any statement indicating directly or by implication that the person engages in the business or acts in the capacity of an immigration consultant, or proposes to engage in the business or act in the capacity of an immigration consultant, unless the person has on file with the Secretary of State a disclosure statement and a bond, in the amount of, and subject to the terms described in, Section 22443.1, that is maintained throughout the period covered by the statement, such as, but not limited to, the period of a Yellow Pages listing.(b) This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 12.
Section 22449 of the Business and Professions Code is amended to read:22449.
(a) Immigration consultants, attorneys, notaries public, and organizations accredited by the United States Board of Immigration Appeals shall be the only individuals authorized to charge clients or prospective clients fees for providing consultations, legal advice, or notary public services, respectively, associated with filing an application under the federal Deferred Action for Childhood Arrivals program announced by the United States Secretary of Homeland Security on June 15, 2012.(b) (1) Immigration consultants, attorneys, notaries public, and organizations accredited by the United States Board of Immigration Appeals shall be prohibited from participating in practices that amount to price gouging when a client or prospective client
solicits services associated with filing an application for deferred action for childhood arrivals as described in subdivision (a).
(2) For the purposes of this section, “price gouging” means any practice that has the effect of pressuring the client or prospective client to purchase services immediately because purchasing them at a later time will result in the client or prospective client paying a higher price for the same services.
(c) (1) In addition to the civil and criminal penalties described in Section 22445, a violation of this section by an attorney shall be cause for discipline by the State Bar pursuant to Chapter 4 (commencing with Section 6000) of Division 3.
(2) In addition to the civil and criminal penalties described in Section 22445, a violation of this section by a notary public
shall be cause for the revocation or suspension of his or her their commission as a notary public by the Secretary of State and the application of any other applicable penalties pursuant to Chapter 3 (commencing with Section 8200) of Division 1 of Title 2 of the Government Code.
(d) This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
SEC. 13.
Section 22449 is added to the Business and Professions Code, to read:22449.
(a) Attorneys and individuals who are accredited by the United States Department of Justice shall be the only persons authorized to charge clients or prospective clients fees for providing consultations, legal advice, or services associated with filing an application under the federal Deferred Action for Childhood Arrivals program announced by the United States Secretary of Homeland Security on June 15, 2012.(b) (1) Attorneys and individuals who are accredited by the United States Department of Justice shall be prohibited from participating in practices that amount to price gouging if a client or prospective client solicits services associated with filing an application for deferred action for childhood arrivals as
described in subdivision (a).
(2) For purposes of this section, “price gouging” means any practice that has the effect of pressuring the client or prospective client to purchase services immediately because purchasing them at a later time will result in the client or prospective client paying a higher price for the same service.
(c) In addition to the civil and criminal penalties described in Section 22445, a violation of this section by an attorney shall be cause for discipline by the State Bar pursuant to Chapter 4 (commencing with Section 6000) of Division 3.
(d) This section shall become operative on January 1, 2021.
SEC. 14.
Section 8223 of the Government Code is amended to read:8223.
(a) A notary public who holds(b) A notary public qualified and bonded as an immigration consultant under Chapter 19.5
(commencing with Section 22440) of Division 8 of the Business and Professions Code may enter data, provided by the client, on immigration forms provided by a federal or state agency. The fee for this service shall not exceed fifteen dollars ($15) per individual for each set of forms. If notary services are performed in relation to the set of immigration forms, additional fees may be collected pursuant to Section 8211. This fee limitation shall not apply to an attorney, who is also a notary public, who is rendering professional services regarding immigration matters.
(c) This section shall not be construed to exempt a notary public who enters data on an immigration form at the direction of a client, or otherwise performs the services of an immigration consultant, as defined by Section 22441 of the Business and Professions Code, from the requirements of Chapter 19.5 (commencing with Section 22440) of Division 8 of the Business and Professions
Code. A notary public who is not qualified and bonded as an immigration consultant under Chapter 19.5 (commencing with Section 22440) of Division 8 of the Business and Professions Code may not enter data provided by a client on immigration forms nor otherwise perform the services of an immigration consultant.
(d) This section shall remain in effect only until January 1, 2021, and as of that date is repealed.
