Bill Text: CA SB670 | 2021-2022 | Regular Session | Amended
Bill Title: Form preparers: immigration.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2022-01-31 - Died on file pursuant to Joint Rule 56. [SB670 Detail]
Download: California-2021-SB670-Amended.html
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January 26, 2022 |
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May 28, 2021 |
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April 29, 2021 |
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March 10, 2021 |
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Senate Bill
No. 670
| Introduced by Senator Caballero |
February 19, 2021 |
An act to amend Sections 22440, 22441, 22441.1, 22442, 22442.1, 22442.2, 22442.3, 22442.4, 22442.5, 22442.6, 22443, 22443.1, 22443.3, 22444, 22445, 22446.5, 22447, and 22449 of, and to amend the heading of Chapter 19.5 (commencing with Section 22440) of Division 8 of, the Business and Professions Code, and to amend Section 8223 of the Government Code, relating to immigration form preparers.
LEGISLATIVE COUNSEL'S DIGEST
SB 670, as amended, Caballero.
Form preparers: immigration.
Existing law prohibits a person, for compensation, other than a person authorized to practice law, or authorized by federal law to represent persons, as specified, from engaging in the business of an immigration consultant, or to act in that capacity, within the State of California without satisfying specified requirements. Existing law specifies that a person engages in the business of, or acts in the capacity of 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.
This bill, among other things, would rename immigration consultants as form preparers. The bill would prescribe a set of maximum fees a form preparer may charge clients for form preparation and transcription services.
The bill would prohibit form preparers from providing certain services services, including, among other things, providing nonlegal assistance related to an Application to Register Permanent Residence or Adjust Status and would make a violation of those provisions subject to fines and criminal penalties. Because the bill would expand the scope of a crime, it would impose a state-mandated local program.
This bill would prohibit the Secretary of State from filing a bond, disclosure form, or photograph from any person seeking to engage in the business of, or act in the capacity of, a form preparer, unless that person was in compliance with this chapter as of December 31, 2022, is authorized
by the United States Department of Justice to represent persons, or is a paralegal, as specified, acting under the direct supervision of an attorney.
This bill would allow a transferee of the business of a form preparer in compliance with these provision, as of December 31, 2022, to have 3 years to become authorized by the United States Department of Justice to represent persons, or to become a paralegal, as specified, acting under the direct supervision of an attorney, if that transferee meets specified conditions, including, among others, the filing a bond, disclosure form, and photograph with the Secretary of State within 90 days of the closure of the form preparer’s business; and, filing, with the Secretary of State, proof of compliance with the authorization requirements specified above within 3 years of filing their bond, disclosure form, and photograph. This bill would require the Secretary of State to accept only one filing related to the transfer of the
business of a form preparer in compliance with this chapter as of December 31, 2022.
This bill would prohibit a form preparer from using the title immigration consultant or immigration specialist, or any other title that implies that the person has expertise in immigration matters, in any document, including an advertisement, stationery, letterhead, business card, other comparable written material, on the internet, or by broadcast media, describing the form preparer. The bill would make a violation of this provision by a form preparer a violation of the prohibition on practicing law without a license and subject to fines and criminal penalties. Because the bill would expand the scope of a crime, it would impose a state-mandated local program.
This bill would require, beginning on July 1, 2023, and every 2 years thereafter, a form preparer to file with the Secretary of State a satisfactory proof of
completion of a course on the limits of authorized services and prohibited activities of form preparers. The bill would require the Secretary of State to enforce the provisions related to submitting the proof of completion of the above-described course and to charge and collect a filing fee to cover the reasonable cost of submitting the proof of completion. The bill would require the Secretary of State to publish a customer bill of rights form containing specified information and to post the document on its internet website by July 1, 2022. The bill would require the form preparer and the client to initial and sign a completed customer bill of rights prior to entering into a contract for services.
Under existing law, a notary public is prohibited from advertising that the person is a notary public if the person holds themselves out as being an immigration specialist, immigration consultant, or any other title or description reflecting expertise in immigration
matters.
This bill would instead prohibit a notary public holding themselves out as a form preparer from advertising that the person is a notary public. The bill would also prohibit a notary public holding themselves out as being a form preparer from using the title immigration specialist or immigration consultant, or any other title or description reflecting expertise in immigration matters.
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.
The heading of Chapter 19.5 (commencing with Section 22440) of Division 8 of the Business and Professions Code is amended to read:CHAPTER 19.5. form preparers
SEC. 2.
Section 22440 of the Business and Professions Code is amended to read:22440.
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 United States Department of Justice or the United States Department of Homeland Security to engage in the business of, or act in the capacitySEC. 3.
Section 22441 of the Business and Professions Code is amended to read:22441.
(a) A person engages in the business of, or acts in the capacity(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 that 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) “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 Justice, the United States Department of Homeland Security, the United States Department of State, or the United States Department of Labor.
(c) “Compensation” means money, property, or anything else of value.
(d) Every person engaged in the business of, or acting in the capacity of of, a form preparer shall only offer only
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.
(e) The following sets forth the maximum fees that may be charged to clients by a person engaged in the business of, or acting in the capacity of, a form preparer under this chapter:
(1) (A) Transcribing responses to a government agency form that is related to an immigration matter is the lower of either:
(i) Fifteen dollars ($15) per page completed.
(ii) Seven dollars and fifty cents ($7.50) per quarter hour, which shall not include applicable filing fees.
(B) A form preparer may charge only for pages on which information of the client was completed.
(C) Preparation of forms listed under subdivision (f) is prohibited, thus no fee may be charged.
(2) Assistance typing letters or any other correspondence as directed by the applicant is fifteen dollars ($15) per document or seven dollars and fifty cents ($7.50) per quarter hour.
(3) Photocopies are twenty-five cents ($0.25) per page.
(4) Change of Address is ten dollars ($10).
(5) Fingerprints are thirty-five dollars ($35).
(6) Arranging for the preparation of
photographs and fingerprints is seven dollars and fifty cents ($7.50) per quarter hour.
(7) Translation of foreign documents is the lower of either:
(A) Thirty dollars ($30) per page for the translation of a non-English language into English.
(B) Seven dollars and fifty cents ($7.50) per quarter hour.
(8) Obtaining judicial records at the request of the client is thirty dollars ($30) and shall not include court or government agency fees required to obtain such records.
(9) Notarizing any document or form related to an immigration matter is fifteen dollars ($15).
(10) Any other ancillary service or activity related to form
preparation and services described in subdivision (a) is seven dollars and fifty cents ($7.50) per quarter hour.
(11) A maximum of five hundred dollars ($500) may be charged for all services related to an immigration application process and all ancillary services. Fees authorized under this subdivision shall not include government filing fees for immigration applications. No fee may be charged for providing government agency forms that are available free of charge on websites or at offices of any federal, state, or local government entity.
(e)
(f) (1) Notwithstanding subdivision (a), a form preparer shall not provide nonlegal assistance related to any of the following:
(A) Application for Asylum and for Withholding of Removal.
(B) Application for T Nonimmigrant Status.
(C) Petition for U Nonimmigrant Status.
(D) Petition of a spouse, child, or parent under the federal Immigration and Nationality Act, Act (8 U.S.C. Sec. 1101 et seq.), as amended by the federal Violence Against Women Act (18 U.S.C. Sec. 2261, et seq.).
(E) Petition for Special Immigrant Juvenile Status.
(F) A waiver of inadmissibility or deportability.
(G) Application to Register Permanent Residency or Adjust Status.
(G)
(H) A motion, application, or form related to a proceeding before the Executive Office for Immigration Review of the United States Department of Justice or before
any state or federal court relating to an immigration matter.
(2) Any act in violation of this subdivision is a violation of this chapter.
SEC. 4.
Section 22441.1 of the Business and Professions Code is amended to read:22441.1.
(a) A person engaged in the business of, or acting in the capacity(b) The Secretary of State shall disqualify an individual a person
from acting as a form preparer for any of the following reasons:
(1) Conviction of a felony.
(2) Conviction of a disqualifying misdemeanor when 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 of, or acting in the capacity of of, a form preparer 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) The Secretary of State shall not file a bond, disclosure form, or photograph from any person seeking to engage in the business of, or act in the capacity of, a form preparer, unless that person meets at least one of the following criteria:
(1) The person is in compliance with this chapter as of December 31, 2022.
(2) The person is accredited by the United States Department of Justice to represent persons before the United States Department of Homeland Security or the United States Department of Justice.
(3) The person is a paralegal, as defined in Section 6450, and is acting under the direction and supervision of an attorney.
(f) (1) A transferee of the business of a
form preparer in compliance with this chapter as of December 31, 2022, shall have three years to comply with the requirements of paragraph (2) of subdivision (e) or paragraph (3) of subdivision (e) if all of the following conditions are met:
(A) The person files a bond, disclosure form, and photograph with the Secretary of State within 90 days of the closure of the form preparer’s business.
(B) The person provides evidence of the closure and transfer, with or without compensation, of the form preparer’s business, including evidence the person is the sole transferee of the business.
(C) The person files with the Secretary of State proof of compliance with paragraph (2) of subdivision (e) or paragraph (3) of subdivision (e) within three years of filing their bond, disclosure form, and photograph with the Secretary of
State.
(2) The Secretary of State shall accept only one filing related to the transfer of the business of a form preparer in compliance with this chapter as of December 31, 2022.
SEC. 5.
Section 22442 of the Business and Professions Code is amended to read:22442.
(a) Every person engaged in the(b) The written contract shall include all provisions relating to the following:
(1) The services to
be performed. Each service to be performed shall be itemized with an explanation of the purpose and process of each service.
(2) The cost of each itemized service to be performed.
(3) There shall be printed on the face of the contract in 10-point boldface type a statement that the form preparer is not an attorney and may not perform the legal services that an attorney performs.
(4) The written contract shall list the documents to be prepared by the form preparer, shall explain the purpose and process of each document, and shall list the cost for preparing each document.
(5) The written contract shall state the purpose for which the form preparer has been hired
and the actions to be taken by the form preparer regarding each document, including the agency and office where each document will be filed and the approximate processing times according to current published agency guidelines.
(6) The written contract shall include a provision that informs the client that they may report complaints relating to form preparers to the Executive Office for Immigration Review of the United States Department of Justice. The written contract shall also include a provision stating that complaints concerning the unauthorized practice of law may be reported to the State Bar of California. These required provisions shall include the toll-free telephone numbers and internet websites of those entities.
(c) A form preparer shall not include provisions in the written contract
relating to either of the following:
(1) Any guarantee or promise, unless the form preparer has some basis in fact for making the guarantee or promise.
(2) Any statement that the form preparer can or will obtain special favors from or has special influence with the United States Citizenship and Immigration Services, or any other governmental agency, employee, or official, that may have a bearing on a client’s immigration matter.
(d) The provisions of the written contract shall be stated both in English and in the client’s native language.
(e) A written contract is void if it is not written pursuant to subdivision (d).
(f) The client shall have the right to rescind the contract within 72 hours of signing the contract. The form preparer shall provide a full refund within 10 days of termination of the contract. The contents of this subdivision shall be conspicuously set forth in the written contract in both English and the client’s native language.
(g) A form preparer shall not make the statements described in subdivision (c) orally to a client.
(h) Prior to entering into a contract for services, every person engaged in the business of, or acting in the capacity of, a form preparer shall provide the client with the customer bill of rights published by the Secretary of State. The form preparer shall have filled out the required information, and both the form preparer and the client shall
initial and sign the bill of rights before the form preparer executes a contract for services.
(i) (1) The Secretary of State shall develop a customer bill of rights form and publish the document on its internet website by July 1, 2022.
(2) The bill of rights shall state that the form preparer is prohibited from providing consultation on immigration matters. In order to inform the client, the bill of rights shall also contain all of the following:
(A) The form preparer’s obligation to provide a written contract.
(B) Each of the client’s rights listed
under subdivisions (a) to (g), inclusive.
(C) That the form preparer is prohibited from providing nonlegal assistance with regard to any of the forms listed under subdivision (e) of Section 22441.
(D) The documentation requirements under Section 22443.
(E) A place for disclosure of the full name and address of the form preparer.
(F) A place for disclosure of evidence of compliance with any applicable bond requirement listed under Section 22443.1.
(j) Every person engaged in the business
of, or acting in the capacity of, a form preparer shall conspicuously post in their place of business, and on the home page of their business internet website, the customer bill of rights, within 30 days after the Secretary of State makes it available.
(k) Except if required pursuant to subparagraph (B) of paragraph (2) of subdivision (c) of Section 22442.6, 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 United States Department of Justice under Section 292.2 of Title 8 of the Code of Federal Regulations.
SEC. 6.
Section 22442.1 of the Business and Professions Code is amended to read:22442.1.
(a) A person engaged in the business of, or acting in the capacity(b) A statement of accounting for the services rendered and payments made shall be provided to the client every two months, shall
be typed or computer generated on the form preparer’s letterhead, and shall display the individual charges and total charges for services and the client’s payments offsetting those charges. The form preparer shall provide the client a written translation of the statement in the client’s native language.
SEC. 7.
Section 22442.2 of the Business and Professions Code is amended to read:22442.2.
(a) A form preparer shall conspicuously display in 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 form preparer’s(1) The full name, address, and evidence of compliance with any applicable bonding requirement
requirement, including the bond number, if any.
(2) A statement that the form preparer is not an attorney or a notario publico.
(3) The services that the form preparer provides and the current and total fee for each service.
(4) The name of each form preparer employed at each location.
(b) Prior to providing any services, a form preparer shall provide the client with a written disclosure in the native language of the client that shall include the following information:
(1) The form preparer’s name, address, and telephone number.
(2) The form preparer’s agent for service of process.
(3) The legal name of the employee who consulted with the client, if different from the form preparer.
(4) Evidence of compliance with any applicable bonding requirement, including the bond number, if any.
(5) A statement that the form preparer is not an attorney or a notario publico.
(c) (1) Except as provided in paragraph (2) or (3), a form preparer who prints, displays, publishes, distributes, or broadcasts, or who causes to be printed, displayed, published, distributed, or broadcasted, any advertisement for services as a form
preparer, within the meaning of Section 22441, shall include in that advertisement a clear and conspicuous statement that the form preparer is not an attorney.
(2) Notwithstanding paragraph (1), a person
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 Executive Office for Immigration Review of the United States Department of Justice or the United States Department of Homeland Security shall include in any advertisement for services a clear and conspicuous statement that the individual is not an attorney but is authorized by federal law to represent persons before the
Executive Office for Immigration Review of the United States Department of Justice or the United States Department of Homeland Security.
(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 United States Department of Justice or the United States Department of Homeland Security shall include in any advertisement for immigration services a clear and conspicuous statement that the person is 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 United States 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.
SEC. 8.
Section 22442.3 of the Business and Professions Code is amended to read:22442.3.
(a) A form preparer shall not, with the intent to mislead, literally translate, from English into another language, any words or titles, including, but not limited to, “notary public,” “notary,” “licensed,” “attorney,” or “lawyer,” that imply that the person is an attorney, in any document, including an advertisement, stationery, letterhead, business card, or other comparable written material, on the internet, or by broadcast media, describing the form preparer. As provided in this subdivision, the literal translation of the phrase “notary public” into Spanish as “notario publico” or “notario,” is expressly prohibited.(b) A form preparer shall not use the title immigration
consultant or immigration specialist, or any other title that implies that the person has expertise in immigration matters, in any document, including an advertisement, stationery, letterhead, business card, or other comparable written material, on the internet, or by broadcast media, describing the form preparer.
(c) For purposes of this section, “literal translation of” or “to literally translate” a word, title, or phrase from one language means the translation of a word, title, or phrase without regard to the true meaning of the word or phrase in the language that is being translated.
(d) A form preparer may not make or authorize the making of any verbal or written references to their compliance with the bonding requirements of Section 22443.1
22443.1, except as provided in this chapter.
(e) A violation of subdivision (a), (b), or (d) by a form preparer shall constitute a violation of subdivision (a) of Section 6126.
(f) (1) In addition to the remedies and penalties prescribed in this chapter, a person who violates this section shall be subject to a civil penalty not to exceed one thousand dollars ($1,000) per day for each violation, to be assessed and collected in a civil action brought by any person injured by the violation or in a civil action brought in the name of the people of the State of California by the Attorney General, a district attorney, a county counsel, or a city attorney.
(2) In
assessing the amount of the civil penalty, the court may consider relevant circumstances presented by the parties to the case, including, but not limited to, the following:
(A) The nature and severity of the misconduct.
(B) The number of violations.
(C) The length of time over which the misconduct occurred, and the persistence of the misconduct.
(D) The willfulness of the misconduct.
(E) The defendant’s assets, liabilities, and net worth.
(3) If the Attorney General brings the action, one-half of the civil penalty collected shall be paid to the
treasurer of the county in which the judgment was entered, and one-half to the General Fund. If a district attorney brings the action, the civil penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If a county counsel brings the action, the civil penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If a city attorney brings the action, one-half of the civil penalty collected shall be paid to the treasurer of the city in which the judgment was entered, and one-half to the treasurer of the county in which the judgment was entered.
(4) The court shall grant a prevailing plaintiff reasonable attorneys’ fees and costs.
SEC. 9.
Section 22442.4 of the Business and Professions Code is amended to read:22442.4.
(a) A person engaged in the business of, or acting in the capacity(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 website information received from the Department of Justice.
SEC. 10.
Section 22442.5 of the Business and Professions Code is amended to read:22442.5.
(a) A form preparer who provides immigration reform act services shall establish and deposit into a client trust account any funds received from a client prior to performing those services for that client.(b) For purposes of this section, the following definitions apply:
(1) “Immigration reform act” means either of the following:
(A) Any pending or future act of Congress that is enacted after October 5, 2013, that authorizes an undocumented immigrant who either entered the United States without inspection or who did not depart after the expiration of a nonimmigrant
visa, to attain a lawful status under federal law. The State Bar shall announce and post on its internet website when an immigration reform act has been enacted.
(B) The President’s executive actions on immigration announced on November 20, 2014, or any future executive action or order that authorizes an undocumented immigrant who either entered the United States without inspection or who did not depart after the expiration of a nonimmigrant visa to attain a lawful status under federal law. The State Bar shall announce and post on its internet website when an executive action or order has been issued.
(2) “Immigration reform act services” means services described in Section 22441 that are provided in connection with an immigration reform act.
(c) The form preparer providing immigration reform act services for the client may withdraw funds received from that client only in compliance with either of the following:
(1) After completing one or more of the itemized services described in paragraph (1) of subdivision (b) of Section 22442, and only in only the amount identified as the cost of that service or those services pursuant to paragraph (2) of subdivision (b) of Section 22442.
(2) After completing one or more of the documents listed, and only
in only the amounts listed, pursuant to paragraph (4) of subdivision (b) of Section 22442.
SEC. 11.
Section 22442.6 of the Business and Professions Code is amended to read:22442.6.
(a) It is unlawful for a form preparer to demand or accept the advance payment of any funds from a person for immigration reform act services in connection with any of the following:(1) An immigration reform act as defined in subparagraph (A) of paragraph (1) of subdivision (b) of Section 22442.5, before the enactment of that act.
(2) (A) Requests for expanded Deferred Action for Childhood Arrivals (DACA) under an immigration reform act as defined in subparagraph (B) of paragraph (1) of subdivision (b) of Section 22442.5, before the date the United States Citizenship and Immigration Services begins
accepting those requests.
(B) Requests for Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) under an immigration reform act as defined in subparagraph (B) of paragraph (1) of subdivision (b) of Section 22442.5, before the date the United States Citizenship and Immigration Services begins accepting those requests.
(C) Requests for Expanded Provisional Waivers of Unlawful Presence under an immigration reform act as defined in subparagraph (B) of paragraph (1) of subdivision (b) of Section 22442.5, before the issuance and effective date of new guidelines and regulations for those provisional waivers.
(D) Any relief offered under any executive action announced or executive order issued, on
or after the effective date of the act adding this subparagraph, that authorizes an undocumented immigrant who either entered the United States without inspection or who did not depart after the expiration of a nonimmigrant visa to attain a lawful status under federal law, before the executive action or order has been implemented and the relief is available.
(b) Any advance payment of funds for immigration reform act services that was received after October 5, 2013, but before the enactment or implementation of the immigration reform act for which the services were sought, shall be refunded to the client promptly, but no later than 30 days after the receipt of the funds.
(c) (1) If a form preparer providing immigration reform act services accepted funds prior to
the effective date of this amendment to this section, and the services provided in connection with payment of those funds were rendered, the form preparer shall promptly, but no later than 30 days after the effective date of this amendment to this section, provide the client with a statement of accounting describing the services rendered.
(2) (A) Any funds received before the effective date of this amendment to this section for which immigration reform act services were not rendered prior to the effective date of this amendment to this section shall either be refunded to the client or shall be deposited in a client trust account pursuant to Section 22442.5.
(B) If a form preparer deposits funds in a client trust account pursuant to this paragraph, the form
preparer shall comply with all applicable provisions of this chapter, including Section 22442, and shall provide to the client a written notice, in both English and in the client’s native language, that there are no benefits or relief available, that no application for such benefits or relief may be processed until enactment or implementation of an immigration reform act and the related necessary federal regulations and forms, and that that, commencing with the effective date of this amendment to this section, it is unlawful for a form preparer to demand or accept the advance payment of any funds from a person for immigration reform act services before the enactment or implementation of an immigration reform act.
(d) (1) In addition to the remedies and penalties prescribed in this chapter, a person who violates this section shall be subject to a civil penalty not to exceed one thousand dollars ($1,000) per day for each violation, to be assessed and collected in a civil action brought by any person injured by the violation or in a civil action brought in the name of the people of the State of California by the Attorney General, a district attorney, a county counsel, or a city attorney.
(2) In assessing the amount of the civil penalty, the court may
consider relevant circumstances presented by the parties to the case, including, but not limited to, the following:
(A) The nature and severity of the misconduct.
(B) The number of violations.
(C) The length of time over which the misconduct occurred, and the persistence of the misconduct.
(D) The willfulness of the misconduct.
(E) The defendant’s assets, liabilities, and net worth.
(3) If the Attorney General brings the action, one-half of the civil penalty collected shall be paid to the treasurer of the county in which the
judgment was entered, and one-half to the General Fund. If a district attorney brings the action, the civil penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If a county counsel brings the action, the civil penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If a city attorney brings the action, one-half of the civil penalty collected shall be paid to the treasurer of the city in which the judgment was entered, and one-half to the treasurer of the county in which the judgment was entered.
(4) The court shall grant a prevailing plaintiff reasonable attorneys’ fees and costs.
SEC. 12.
Section 22443 of the Business and Professions Code is amended to read:22443.
(a) A person engaged in the business of, or acting in the capacity(b) (1) A person engaged in the business
of, or acting in the capacity of of, a form preparer shall retain copies of all documents and forms of a client for not less than three years from the date of the last service to the client.
(2) Upon presentation of a written consent signed by a client, a form preparer shall provide a copy of the client file to law enforcement without a warrant or a subpoena.
(c) (1) A person engaged in the business of, or acting in the capacity of
of, a form preparer shall return to a client all original documents, including, but not limited to, original birth certificates, rental agreements, utility bills, employment stubs, Department of Motor Vehicle licenses with dates of entry, and passports, that the client has provided to the form preparer in support of the client’s application.
(2) Any original document that does not need to be submitted to immigration authorities as an original document shall be returned by the form preparer immediately after making a copy or reproduction thereof.
SEC. 13.
Section 22443.1 of the Business and Professions Code is amended to read:22443.1.
(a) (1) Prior to engaging in the(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 form preparer or the agents, representatives, or employees of the form preparer, while acting within the scope of that employment or agency.
(c) A form preparer 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 form preparer’s name, date of birth, residence address, business address, residence telephone number, and business telephone number.
(2) The name and address of the form preparer’s agent for service of process if one is required to be or has been appointed.
(3) Whether the form preparer has ever been convicted of a violation of this chapter or of Section 6126.
(4) Whether the form preparer 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 form preparer.
(d) A form preparer 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 website demonstrating that a form preparer 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 form preparer’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 only its 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 form preparer filing a bond pursuant to this section.
(g) A form preparer shall submit all of the following with the disclosure form:
(1) A copy of valid and current photo identification to determine the form preparer’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 the person 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) Beginning on July 1, 2023, and every two years thereafter, a form preparer currently registered with the Secretary of State shall file proof of completion satisfactory to the Secretary of State of a course on the limits of authorized services and prohibited activities for form
preparers.
(i) The Secretary of State shall charge and collect a filing fee to cover the reasonable cost of filing the bond and submitting proof of completion of the course described in subdivision (h).
(j) The Secretary of State shall enforce the provisions of this chapter that govern the filing and maintenance of bonds and submitting proof of completion of the course described in subdivision (h).
(k) 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 United States Board of Immigration Appeals under Section 292.2
of Title 8 of the Code of Federal Regulations.
SEC. 14.
Section 22443.3 of the Business and Professions Code is amended to read:22443.3.
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 of, or acts in the capacitySEC. 15.
Section 22444 of the Business and Professions Code is amended to read:22444.
It is unlawful for any person engaged in the business of, or acting in the capacity(a) Make false or misleading statements to a client while providing services to that client.
(b) Make any guarantee or promise to a client, unless the guarantee or promise is in writing
writing, and the form preparer has some basis in fact for making the that guarantee or promise.
(c) Make any statement that the form preparer can or will obtain special favors from or has special influence with the United States Citizenship and Immigration Services, or any other governmental agency, employee, or official, that may have a bearing on a client’s immigration matter.
(d) Charge a client a fee for referral of the client to another for services that the form preparer cannot or will not provide to the client. A sign setting forth this prohibition shall be conspicuously displayed
in the form preparer’s office.
SEC. 16.
Section 22445 of the Business and Professions Code is amended to read:22445.
(a) (1) A person who violates this chapter shall be subject to a civil penalty not to exceed one hundred thousand dollars ($100,000) for each violation, to be assessed and collected in a civil action brought by any person injured by the violation or in a civil action brought in the name of the people of the State of California by the Attorney General, a district attorney, a county counsel, or a city attorney. An action brought in the name of the people of the State of California shall not preclude an action being brought by an injured person.(2) The court shall impose a civil penalty for each violation of this chapter. In
assessing the amount of the civil penalty, the court may consider relevant circumstances presented by the parties to the case, including, but not limited to, the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.
(3) Any action brought pursuant to this section by the Attorney General, a district attorney, a county counsel, or a city attorney shall also seek relief under subdivision (c) of Section 22446.5.
(4) If the Attorney General brings the action, one-half of the civil penalty collected shall be paid to the treasurer of the county in which the judgment was entered,
and one-half to the General Fund. If a district attorney brings the action, the civil penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If a county counsel brings the action, the civil penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If a city attorney brings the action, one-half of the civil penalty collected shall be paid to the treasurer of the city in which the judgment was entered, and one-half to the treasurer of the county in which the judgment was entered.
(b) In addition to the provisions of subdivision (a), a violation of this chapter is a misdemeanor punishable by a fine of not less than two thousand dollars ($2,000) or more than ten thousand dollars ($10,000), as to each client with respect to whom a violation occurs, or
imprisonment in the county jail for not more than one year, or by both fine and imprisonment. However, payment of restitution to a client shall take precedence over payment of a fine.
(c) A second or subsequent violation of Sections 22442.2, 22442.3, and 22442.4 is a misdemeanor subject to the penalties specified in subdivisions (a) and (b). A second or subsequent violation of any other provision of this chapter is a felony punishable pursuant to subdivision (h) of Section 1170 of the Penal Code.
(d) An action brought pursuant to this section shall be commenced within four years after discovery of the commission of the offense.
SEC. 17.
Section 22446.5 of the Business and Professions Code is amended to read:22446.5.
(a) A person claiming to be aggrieved by a violation of this chapter by a form preparer may bring a civil action for injunctive relief or damages, or both. If the court finds that the defendant has violated a provision of this chapter, it shall award actual damages, plus an amount equal to treble the amount of actual damages or one thousand dollars ($1,000) per violation, whichever is greater. The court shall also grant a prevailing plaintiff reasonable attorneys’ fees and costs.(b) Any other party, who, upon information and belief, claims a violation of this chapter has been committed by a form preparer, may bring a civil action for injunctive
relief on behalf of the general public and, upon prevailing, shall recover reasonable attorneys’ fees and costs.
(c) The Attorney General, a district attorney, a county counsel, or a city attorney who claims a violation of this chapter has been committed by a form preparer, may bring a civil action for injunctive relief, restitution, and other equitable relief against the form preparer in the name of the people of the State of California.
(d) An action brought under this chapter shall be set for trial at the earliest possible date, and shall take precedence over all other cases, except older matters of the same character and matters to which special preference may be given by law.
SEC. 18.
Section 22447 of the Business and Professions Code is amended to read:22447.
(a) A person who is awarded damages in an action or proceeding for injuries caused by the acts of a person engaged in the business of, or acting in the capacity of, a form preparer, in the performance of their duties as a form preparer, may recover damages from the bond required by Section 22443.1. In an action brought by the Attorney General, a district attorney, a county counsel, or a city attorney, the court may order relief for benefit of the injured parties to be paid from the bond.(b) When any claim or claims against a bond have been paid so as to reduce the principal amount of the bond remaining available to pay claims below the principal
amount required by Section 22443.1, the form preparer shall cease to conduct any business unless and until the bond has been reinstated up to the minimum amount required by Section 22443.1.
SEC. 19.
Section 22449 of the Business and Professions Code is amended to read:22449.
(a) Form preparers, 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) Form preparers, 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 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.
SEC. 20.
Section 8223 of the Government Code is amended to read:8223.
(a) Notaries public that hold themselves out as being form preparers shall not advertise in any manner whatsoever that they are notaries public.(b) Notaries public that hold themselves out as being form preparers shall not use the title immigration consultant or immigration specialist, or any title or description reflecting an expertise in immigration matters.
(c) A notary public qualified and bonded as a form preparer 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.
(d) 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 a form preparer, 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 a form preparer 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 forms, nor otherwise perform the services of a form preparer.
