Bill Text: MI HB4528 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Occupations; immigration clerical assistants; regulation of immigration clerical assistants; revise. Amends title & secs. 3, 13, 17 & 21 of 2004 PA 161 (MCL 338.3453 et seq.) & repeals secs. 4, 7, 9 & 15 of 2004 PA 161 (MCL 338.3454 et seq.).
Spectrum: Bipartisan Bill
Status: (Passed) 2014-07-16 - Assigned Pa 174'14 With Immediate Effect [HB4528 Detail]
Download: Michigan-2013-HB4528-Introduced.html
HOUSE BILL No. 4528
April 10, 2013, Introduced by Reps. Kesto, Tlaib, Crawford, McCready, Cavanagh, Zemke, Hovey-Wright, Lauwers and McBroom and referred to the Committee on Regulatory Reform.
A bill to amend 2004 PA 161, entitled
"Michigan immigration clerical assistant act,"
by amending the title and sections 3, 13, 17, and 21 (MCL 338.3453,
338.3463, 338.3467, and 338.3471); and to repeal acts and parts of
acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to regulate certain transactions involved in
immigration matters and the providing of services in those matters;
to set standards and security requirements involving certain
immigration
matters and persons engaged in immigration matters; to
create
a list of immigration clerical assistants; to provide for
certain
powers and duties for certain state agencies; and to
provide for remedies and penalties.
Sec. 3. As used in this act:
(a) "Business relationship" means a relationship with any of
the following:
(i) An individual serving who serves as a designated school
official or principal designated school official as defined by the
United
States citizenship and immigration services, but only where
when acting within the scope of authority in that capacity on
behalf of the designated educational institution.
(ii) An individual serving who serves as a responsible officer
or alternate responsible officer as defined by the United States
department
of state, but only where when
acting within the scope of
authority in that capacity on behalf of the designated exchange
visitor program.
(iii) An individual who is regularly employed by an employer
other than a sole proprietorship in a position that requires that
employee to process immigration matters on behalf of and as a
representative of the employer relative to employment by an
employee or prospective employee only with the employer and who
receives no compensation, directly or indirectly, from those
employees or prospective employees.
(iv) An individual who is employed by a federal or state
elected official involved in the processing of a visa application
or petition on behalf of or as a representative of a constituent.
(b) "Compensation" means money, donations, property, promise
of payment, or anything else of value required in exchange for a
person's services.
(c)
"Consumer" means a person an individual who utilizes
or
seeks to utilize the services of an immigration clerical assistant.
(d)
"Department" means the department of labor and economic
growth.
(d) (e)
"Immigration clerical
assistant" means any individual
providing
or offering who provides or
offers to provide services,
for compensation, relating to any immigration matter.
(e) (f)
"Immigration matter"
means any matter affecting the
immigrant status, nonimmigrant status, or citizenship status of any
individual and includes, but is not limited to, federal or state
administrative or court proceedings or the filing of accompanying
documents in those proceedings, or both.
(g)
"List" means the list of immigration clerical assistants
established
by the department.
(f) (h)
"Services" means any
action taken on behalf of any
consumer for the benefit of that consumer or another individual
regarding the immigrant status, nonimmigrant status, or citizenship
status of any consumer or other individual, and includes, but is
not limited to, the following:
(i) Transcribing responses onto government agency forms on
behalf of a consumer relating to an immigration matter.
(ii) Translating information from a government agency form to a
language other than English and translating responses on behalf of
a consumer relating to an immigration matter.
(iii) Drafting or completing an application or other paper on
behalf of a consumer in an immigration matter.
(iv) Giving advice to a consumer in an immigration matter.
(g) (i)
"Solicit" means any
contact with a specific consumer
by an immigration clerical assistant or his or her agent,
representative,
or employee regarding the provision of about
providing services, for compensation, regarding an immigration
matter. or
the provision of services. Solicit does not include
letters or advertising distributed generally to persons that are
not known to need the services of an immigration clerical
assistant.
Sec. 13. (1) An immigration clerical assistant shall enter
into a written contract with a consumer before any service is
rendered and before accepting any compensation.
(2)
The A contract described
in subsection (1) shall be
written in English and shall include a written translation into the
primary language understood by the consumer if the consumer is not
a native speaker of English. The contract shall embody all the
terms and conditions of the agreement to provide services,
including, but not limited to, the following:
(a) The name and address of the immigration clerical
assistant.
(b) The date and time of the transaction.
(c) A description of the services to be provided and the
itemized cost of each service.
(d)
The name and address of the bonding company or other
surety
that has issued the bond required under section 15.
(3) An immigration clerical assistant shall not orally amend
or
supplement the a written contract described in subsection (1)
and shall not make any statement that contradicts or is
inconsistent with the terms of the written contract. A copy of the
executed contract shall be provided to the consumer at the time of
execution.
(4)
The A consumer has 72 hours from the execution of the a
contract described in subsection (1) to rescind the transaction. A
notice of the consumer's right to rescind shall be included in the
contract in English and shall be translated with substantially
similar meaning into the primary language understood by the
consumer in substantially the following form:
"You, the consumer, may cancel this transaction at any time
prior to 72 hours following the date and time that this contract is
signed by you. You may cancel this transaction, without any penalty
or obligation, by writing "CANCEL" across your signature and
returning a copy to the immigration clerical assistant or his/her
authorized representative.".
(5)
Upon rescission of the transaction, an If a transaction is
rescinded under subsection (4), the immigration clerical assistant
shall
promptly return to the person so entitled to receive it
any
deposit, down payment, or other compensation received from or on
behalf of the consumer and shall return to the consumer, or the
individual upon whose behalf the consumer is acting, all original
documents, including notices, letters, approvals, denials,
receipts, or other correspondence received on behalf of the
consumer in any immigration matter.
(6)
The A contract described
in subsection (1) shall state in
a prominent place, in type not smaller than 12-point font, a notice
in
English that shall be is translated with substantially similar
meaning into the primary language understood by the consumer, as
follows:
"NOTICE: An immigration clerical assistant is NOT an attorney
and is not authorized to provide legal services or offer legal
advice of any kind.".
Sec. 17. (1) An immigration clerical assistant shall not do
any of the following:
(a) Offer or give legal advice including, but not limited to,
selecting the type of application or form to be submitted to a
government agency, recommending a procedure to be followed in
seeking a benefit under the immigration and nationality act,
chapter
477, 66 Stat. 163, 8 USC 1101, et seq., and altering or
deleting language on standard immigration forms.
(b) Engage in the unauthorized practice of law as determined
by a court of competent jurisdiction.
(c)
Represent that the offering or the provision of services
is
he or she offers or provides
are legal advice or legal services.
(d)
Falsely represent that the offering or the provision of
services
is he or she offers or
provides are necessary.
(e)
Falsely represent that the offering or the provision of
services
is he or she offers or
provides are in response to a
request by or on behalf of a consumer.
(f) Represent that the life, safety, or welfare of the
consumer and his or her family would be adversely affected if the
services of an immigration clerical assistant are not provided.
(g) Fail to reveal a material fact regarding an immigration
matter
or regarding services , which fact that could not be
reasonably known to the consumer, the omission of which tends to
mislead or deceive the consumer.
(h) Take advantage of a consumer's inability to protect his or
her
interests when if the immigration clerical assistant knows or
should reasonably know of a consumer's disability, illiteracy, or
inability to understand the language of any documentation or
government form.
(i) Regarding services not described in section 11, charge a
consumer a price for services that is not reasonable under the
circumstances.
(j) Make a false or fraudulent representation of fact or
statement material to the services provided.
(k) Fail to reveal facts material to the services provided in
light of representations of fact made in a positive manner.
(l) Engage in any method, act, or practice that is unfair or
deceptive.
(m) Act as an intermediary between the consumer and the
federal government in an immigration matter.
(n)
Make any representation orally or in writing that the
immigration
clerical assistant he or she guarantees or promises a
specific immigration benefit or result.
(o)
Represent or imply that the immigration clerical assistant
he or she will be able to obtain any special influence over, or
treatment from, any government entity with respect to an
immigration matter.
(p)
Make a false statement or representation to the department
as
part of the application process for initial or renewal placement
on
the list.
(p) (q)
Use a term implying that the
individual placed on the
list
he or she is approved, certified, or licensed by the state of
Michigan or the federal government.
(2) An immigration clerical assistant shall not, in any
document, advertisement, stationery, letterhead, business card, or
other comparable written material describing the role of the
immigration clerical assistant, literally translate from English
into another language terms or titles including, but not limited
to, notary public, notary, licensed, attorney, lawyer, or any other
term that implies that the person is an attorney. As used in this
subsection, "literally translate" means the translation of a word
or phrase without regard to the true meaning of the word or phrase
in the language that is being translated.
Sec.
21. (1) A person who that violates this act is guilty of
the following:
(a) In the case of a first conviction, a misdemeanor
punishable by imprisonment for not more than 93 days or a fine of
not more than $1,000.00, or both.
(b) In the case of a second or subsequent conviction, a felony
punishable by imprisonment for not more than 2 years or a fine of
not more than $10,000.00, or both.
(2) A person that is injured by a violation of this act by an
immigration clerical assistant may bring an action in a court of
competent jurisdiction for equitable relief or damages, or both. In
an action for damages, the court shall award a prevailing plaintiff
the amount of actual damages, or, if the court finds that the
violation was willful, 3 times the plaintiff's actual damages. The
court shall also grant a prevailing plaintiff reasonable attorney
fees
and costs. and may order removal from the list for at least
5
years
or as otherwise ordered by the court.
(3)
A person who, upon that,
on information and belief, claims
a violation of this act has been committed by an immigration
clerical assistant may bring an action in a court of competent
jurisdiction for equitable relief on behalf of the general public.
The court shall award a prevailing plaintiff reasonable attorney
fees
and costs. and may order removal from the list for at least
5
years
or as otherwise ordered by the court.
(4) The remedies and penalties in this act are cumulative and
use of 1 remedy under this act does not bar the use of any remedy
allowed under the Michigan consumer protection act, 1976 PA 331,
MCL 445.901 to 445.922, or the use of any other remedy allowed
under law.
(5)
Notwithstanding any other provision of this section, a
first
violation of the list requirement of section 7 or bonding
requirement
of section 15, or both, shall subject the immigration
clerical
assistant only to a notice of noncompliance issued by the
department.
The department shall issue the notice of noncompliance
promptly,
and the notice of noncompliance shall indicate a time
period
for compliance not to exceed 90 days. A second or subsequent
violation
of either or both of the requirements described in this
subsection
shall subject a person to the other provisions of this
section.
(6)
Upon notification of any kind to the department of an
individual
acting as an immigration clerical assistant without
being
placed on the list, failure to comply with the list
requirements,
or of the failure to be in compliance with the
bonding
requirement imposed under section 15, the department shall
issue
a notice of noncompliance to that individual.
(7)
As a precondition to the prosecution of an individual
under
subsection (1) for failure of an individual acting as an
immigration
clerical assistant to be placed on the list, failure to
comply
with the list requirements, or for failure to comply with
the
bonding requirement under section 15, the complainant shall
demonstrate
that the department had sent a notice of noncompliance
to
the person alleged to have violated this act.
(5) (8)
An immigration clerical assistant
that is acting on
behalf of a tax-exempt nonprofit organization under section
501(c)(3)
of the internal revenue code of 1986 that applies to and
is
placed on the list and complies
with the bonding requirement of
section
15 and the service charge
requirements of section 11, or an
employee or volunteer of such an organization, is exempt from this
section.
Enacting section 1. Sections 4, 7, 9, and 15 of the Michigan
immigration clerical assistant act, 2004 PA 161, MCL 338.3454,
338.3457, 338.3459, and 338.3465, are repealed.
