Bill Text

Bill Information

PDF |Add To My Favorites |Track Bill | print page

AB-638 Immigration consultants.(2017-2018)

SHARE THIS:share this bill in Facebookshare this bill in Twitter
Date Published: 07/18/2017 09:00 PM
AB638:v93#DOCUMENT

Amended  IN  Senate  July 18, 2017
Amended  IN  Senate  June 26, 2017
Amended  IN  Senate  June 22, 2017
Amended  IN  Assembly  May 30, 2017
Amended  IN  Assembly  April 24, 2017
Amended  IN  Assembly  March 23, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 638


Introduced by Assembly Members Caballero and Gonzalez Fletcher
(Coauthor: Assembly Member Gipson)
(Coauthor: Senator Wiener)

February 14, 2017


An act to amend Section 22443.1 of, to amend and repeal Section 6126.4 of, to amend, repeal, and add Section 6126.7 of, to add Section 22449.5 to, and to repeal and add Chapter 19.5 (commencing with Section 22440) of Division 8 of, the Business and Professions Code, and to amend and repeal Section 8223 of the Government Code, amend and repeal Sections 22441.1, 22442.2, 22442.4, 22443.1, 22443.2, and 22443.3 of, and to amend, repeal, and add Sections 22440 and 22449 of, the Business and Professions Code, relating to immigration consultants.


LEGISLATIVE COUNSEL'S DIGEST


AB 638, as amended, Caballero. Immigration consultants.
(1) Existing law regulates the practice of immigration consultants who provide nonlegal assistance or advice in an immigration matter. 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 the regulations in 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 requires a person seeking to engage in the business or act in the capacity of an immigration consultant in this state to file a bond of a specified amount, and other related forms, with the Secretary of State. Existing law requires the Secretary of State to conduct a background check of any person who files a bond of that nature, and requires the Secretary of State to post on its Internet Web site information on any person who has complied with the requirement to file a bond and passed the requisite background check. Existing law provides that 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 a fee for providing services associated with filing an application under a federal program referred to as the deferred action program, and prohibits immigration consultants, attorneys, notaries public, and organizations accredited by the United States Board of Immigration Appeals from participating in practices that amount to price gouging, as defined, when a client or prospective client solicits these services. Existing law establishes both criminal and civil penalties for a violation of specified provisions related to immigration consultants.
This bill, beginning on January 1, 2019, would make it unlawful for a person, for compensation, other than a person authorized to practice law in this state, including a paralegal who is supervised by a person authorized to practice law, or a person authorized to represent others under federal law in an immigration matter, or a paralegal acting under the active supervision of an attorney, to engage in the business or act in the capacity of an immigration consultant in this state. This bill would remove notaries public from the provisions described above relating to the federal deferred action program, and would, instead, authorize a paralegal to charge fees for services related to the deferred action program and subject a paralegal to the price gouging prohibition described above. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.
(2) 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.

This bill, the Immigration Fraud Prevention Act of 2017, would prohibit a person who was not listed on the Secretary of State’s Internet Web site as being in compliance with the bond and background check requirements described above before January 1, 2018, from submitting a bond after that date or from engaging in the business or acting in the capacity of an immigration consultant. This bill would repeal those provisions, as well as related provisions, as of January 1, 2019, and, instead, beginning January 1, 2019, would make it unlawful for a person, other than a person authorized to practice law in this state, including a paralegal who is supervised by a person authorized to practice law, or a person authorized to represent others under federal law in an immigration matter, to engage in the practice of law in an immigration matter. The bill would also make it unlawful for a person, 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, to engage in specified acts and practices. The bill would prohibit a person licensed as a notary public from advertising in a manner that conveys or implies that he or she possesses professional legal skills in the areas of immigration law. The bill also would prohibit a person authorized to practice law in this state or to represent others under federal law in an immigration matter from participating in practices that amount to price gouging, as defined, when a client or prospective client solicits these services. The bill would make it unlawful for any person providing any assistance in an immigration matter, including a person authorized to practice law in this state, to do specified acts.

The bill would require the Secretary of State, by January 1, 2019, to notify any person who was registered as an active immigration consultant at any time on or after January 1, 2016, that immigration consulting is prohibited as of January 1, 2019. The bill would require a person who was registered as an active immigration consultant at any time on or after January 1, 2016, to provide each existing client specified files in his or her possession by March 1, 2018, and to, until January 1, 2020, post a sign on his or her place of business informing the public of the prohibition on immigration consulting.

This bill would establish both criminal and civil penalties for a violation of the provisions described above, and would thereby impose a state-mandated local program.

(2)Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation. Existing law provides it is a violation of specified provisions of law relating to the unauthorized practice of law for any person who is not an attorney to literally translate from English into another language the phrases “notary public,” “notary,” “licensed,” “attorney,” “lawyer,” or any other terms that imply that the person is an attorney. Existing law requires that a civil action brought under those provisions be commenced within 4 years after the cause of action accrues.

This bill, on or after January 1, 2019, would require a civil action brought under the provisions described above to be commenced within 5 years, instead of 4 years, after the cause of action accrues, and would require that the cause of action would not be deemed to accrue until the discovery, by the aggrieved party, of the facts constituting the violation. The bill would provide that it would be a violation of the provision described above as an unlawful practice of law for a person to hold himself or herself out as an immigration consultant or as a person authorized to provide advice in an immigration matter, unless that person is otherwise authorized to practice law or otherwise permitted to represent others under federal law in an immigration matter.

(3)Existing law provides that, under specified conditions, a public entity has a privilege to refuse, and to prevent another from disclosing, official information acquired in confidence by a public employee in the course of his or her duty, and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. Under existing law, custodial or peace officer records are accessible provided that the information is relevant to the subject matter involved in the pending litigation.

This bill would deem any client records or information obtained during the scope of an investigation relating to immigration consultants as privileged as official information.

(4)Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

(5)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.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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 United States 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, 2019, 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 authorized to practice law, or authorized by federal law to represent persons before the United States Board of Immigration Appeals or the United States Citizenship and Immigration Services, or a paralegal acting under the active supervision of an attorney, to engage in the business or act in the capacity of an immigration consultant within this state.
(b) This section shall become operative on January 1, 2019.

SEC. 3.

 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, 2019, and as of that date is repealed.

SEC. 4.

 Section 22442.2 of the Business and Professions Code is amended to read:

22442.2.
 (a) An immigration consultant shall conspicuously display in his or her 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:
(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 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, 2019, and as of that date is repealed.

SEC. 5.

 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 his or her 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.
(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 information received from the Department of Justice.
(g) This section shall remain in effect only until January 1, 2019, and as of that date is repealed.

SEC. 6.

 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 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 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 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.

(k) This section shall remain in effect only until January 1, 2019, and as of that date is repealed.

SEC. 7.

 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, 2019, and as of that date is repealed.

SEC. 8.

 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, 2019, and as of that date is repealed.

SEC. 9.

 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 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, 2019, and as of that date is repealed.

SEC. 10.

 Section 22449 is added to the Business and Professions Code, to read:

22449.
 (a) Attorneys, paralegals, 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 paralegal 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) Attorneys, paralegals, 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) 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, 2019.

SEC. 11.

 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.