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AB-638 Immigration consultants.(2017-2018)

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Date Published: 08/24/2018 09:00 PM
AB638:v91#DOCUMENT

Amended  IN  Senate  August 24, 2018
Amended  IN  Senate  August 21, 2017
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 and repeal Sections 22442.2, 22442.4, 22443.1, 22443.2, and 22443.3 of, and to amend, repeal, and add Sections 22440, 22441, 22441.1, and 22449 of, the Business and Professions Code, and to amend and repeal Section 8223 of the Government Code, relating to immigration consultants.


LEGISLATIVE COUNSEL'S DIGEST


AB 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 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, 2020, would make it unlawful for a person, for compensation, other than a person authorized to practice law in this state, or a person authorized to represent others under federal law in an immigration matter, 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. The bill would provide that the provisions described above do not apply to an automated immigration form population service. The bill would require the Secretary of State, in coordination with specified state agencies, to develop an Internet Web site that would include specified information related to immigration services available in California, including information related to persons recognized or accredited as authorized providers of immigration services by the United States Department of Justice. The bill 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.
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, 2020, and as of that date is repealed.

SEC. 2.

 Section 22440 is added to the Business and Professions Code, to read:

22440.
 (a) It is unlawful for any person, for compensation, other than a person described in subdivision (b), to engage in the business or act in the capacity of an immigration consultant within this state.
(b) The following persons may, for compensation, engage in the business or act in the capacity of an immigration consultant within this state consistent with the requirements of this chapter:
(1) A person authorized to practice law.
(2) A person authorized by federal law to represent persons before the United States Department of Homeland Security or the United States Department of Justice.
(3) A paralegal acting under the active supervision of an attorney.
(c) This chapter does not apply to a person who operates an automated immigration form population service. This subdivision does not authorize a person who operates an automated immigration form population service to provide legal advice or otherwise engage in the unauthorized practice of law.
(d) This section shall become operative on January 1, 2019. 2020.

SEC. 3.

 Section 22441 of the Business and Professions Code is amended to read:

22441.
 (a) A person engages in the business or acts in the capacity of an immigration consultant when that person gives nonlegal assistance or advice on an immigration matter. That assistance or advice includes, but is not limited to, the following:
(1) Completing a form provided by a federal or state agency but not advising a person as to his or her answers on those forms.
(2) Translating a person’s answers to questions posed in those forms.
(3) Securing for a person supporting documents, such as birth certificates, which may be necessary to complete those forms.
(4) Submitting completed forms on a person’s behalf and at his or her request to the United States Citizenship and Immigration Services.
(5) Making referrals to persons who could undertake legal representation activities for a person in an immigration matter.
(b) For purposes of this chapter:
(1) “Immigration matter” means any proceeding, filing, or action affecting the immigration or citizenship status of any person which 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.
(2) “Compensation” means money, property, or anything else of value.
(c) Every person engaged in the business or acting in the capacity of an immigration consultant shall only offer nonlegal assistance or advice in an immigration matter as defined in subdivision (a). Any act in violation of subdivision (a) is a violation of this chapter.
(d) This section shall remain in effect only until January 1, 2019, 2020, and as of that date is repealed.

SEC. 4.

 Section 22441 is added to the Business and Professions Code, to read:

22441.
 (a) A person engages in the business or acts in the capacity of an immigration consultant when that person gives nonlegal assistance or advice on an immigration matter. That assistance or advice includes, but is not limited to, the following:
(1) Completing a form provided by a federal or state agency but not advising a person as to his or her answers on those forms.
(2) Translating a person’s answers to questions posed in those forms.
(3) Securing for a person supporting documents, such as birth certificates, which may be necessary to complete those forms.
(4) Submitting completed forms on a person’s behalf and at his or her request to the United States Citizenship and Immigration Services.
(5) Making referrals to persons who could undertake legal representation activities for a person in an immigration matter.
(b) For purposes of this chapter:
(1) “Immigration matter” means any proceeding, filing, or action affecting the immigration or citizenship status of any person which 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.
(2) “Compensation” means money, property, or anything else of value.
(3) “Automated immigration form population service” means an Internet Web site or mobile application that assists a user of that site or application to complete a form provided by a federal or state agency that is to be used in an immigration matter. That assistance includes providing guidance to the user on how to fill out the form, and reviewing the form for errors. However, that assistance does not include providing the user legal advice.
(c) Every person engaged in the business or acting in the capacity of an immigration consultant shall only offer nonlegal assistance or advice in an immigration matter as defined in subdivision (a). Any act in violation of subdivision (a) is a violation of this chapter.
(d) This section shall become operative on January 1, 2019. 2020.

SEC. 5.

 Section 22441.1 of the Business and Professions Code is amended to read:

22441.1.
 (a) A person engaged in the business or acting in the capacity of an immigration consultant shall satisfactorily pass a background check conducted by the Secretary of State.
(b) The Secretary of State shall disqualify an individual from acting as an immigration consultant for any of the following reasons:
(1) Conviction of a felony.
(2) Conviction of a disqualifying misdemeanor where not more than 10 years have passed since the completion of probation. A conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this paragraph. The list of disqualifying misdemeanors shall be the same as the disqualifying misdemeanors applicable to notaries public appointed and commissioned pursuant to Chapter 3 (commencing with Section 8200) of Division 1 of Title 2 of the Government Code.
(3) Failure to disclose any arrest or conviction in the disclosure form required pursuant to subdivision (c) of Section 22443.1.
(c) The Secretary of State shall complete a background check on every person engaged in the business or acting in the capacity of an immigration consultant who was bonded and qualified pursuant to this chapter on or before December 31, 2006.
(d) The Secretary of State shall not file a bond, disclosure form, or photograph from a person who has failed to pass the background check required by this section.
(e) This section shall remain in effect only until January 1, 2019, 2020, and as of that date is repealed.

SEC. 6.

 Section 22441.1 is added to the Business and Professions Code, to read:

22441.1.
 (a) The Secretary of State shall, in coordination with the Attorney General, the Office of Immigrant Assistance of the Department of Justice, Justice and the State Bar, establish an Internet Web site that does all of the following:
(1) Inform the public about how a person may become recognized or accredited as an authorized provider of immigration services by the United States Department of Justice.
(2) Provide the public with a list, to be updated annually, of persons or entities recognized or accredited as authorized providers of immigration services by the United States Department of Justice.
(3) Provide the public with a list of entities funded by the state that provide assistance in immigration matters, including, but not limited to, the Office of Immigrant Assistance of the Department of Justice. matters.
(4) Provide any other legal resources related to immigration matters.
(5) Provide the public with information of any complaint hotline regarding immigration related immigration-related services operated by the Office of Immigrant Assistance of the Department of Justice, and provide the public with information on how to file a complaint with the State Bar.
(b) This section shall become operative on January 1, 2019. 2020.

SEC. 7.

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

22442.2.
 (a) An immigration consultant shall conspicuously display in 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, 2020, and as of that date is repealed.

SEC. 8.

 Section 22442.4 of the Business and Professions Code is amended to read:

22442.4.
 (a) A person engaged in the business or acting in the capacity of an immigration consultant shall submit to the Department of Justice, fingerprint images and related information required by the Department of Justice for the purpose of obtaining information as to the existence and content of a record of state and federal convictions and arrests and information as to the existence and content of a record of state and federal arrests for which the Department of Justice establishes that the person is free on bail, or on his or her own recognizance, pending trial or appeal. An immigration consultant who has been issued a bond as described in Section 22443.1 on or before December 31, 2006, shall submit the fingerprint images and related information to the Department of Justice on or before July 1, 2007.
(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, 2020, and as of that date is repealed.

SEC. 9.

 Section 22443.1 of the Business and Professions Code is amended to read:

22443.1.
 (a) (1) Prior to engaging in the business, or acting in the capacity, of an immigration consultant, each person shall file with the Secretary of State a bond of one hundred thousand dollars ($100,000) executed by a corporate surety admitted to do business in this state and conditioned upon compliance with this chapter. The total aggregate liability on the bond shall be limited to one hundred thousand dollars ($100,000).
(2) The bond may be terminated pursuant to Section 995.440 of, and Article 13 (commencing with Section 996.310) of Chapter 2 of Title 14 of Part 2 of, the Code of Civil Procedure.
(b) The bond required by this section shall be in favor of, and payable to, the people of the State of California and shall be for the benefit of any person damaged by any fraud, misstatement, misrepresentation, unlawful act or omission, or failure to provide the services of the immigration consultant or the agents, representatives, or employees of the immigration consultant, while acting within the scope of that employment or agency.
(c) An immigration consultant who is required to file a surety bond with the Secretary of State shall also file a disclosure form with the Secretary of State that contains all of the following information:
(1) The immigration consultant’s name, date of birth, residence address, business address, residence telephone number, and business telephone number.
(2) The name and address of the immigration consultant’s agent for service of process if one is required to be or has been appointed.
(3) Whether the immigration consultant has ever been convicted of a violation of this chapter or of Section 6126.
(4) Whether the immigration consultant has ever been arrested or convicted of a crime.
(5) If applicable, the name, business address, business telephone number, and agent for service of process of the corporation or partnership employing the immigration consultant.
(d) An immigration consultant shall notify the Secretary of State’s office in writing within 30 days when the surety bond required by this section is renewed, and of any change of name, address, telephone number, or agent for service of process.
(e) The Secretary of State shall post information on its Internet Web site 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 remain in effect only until January 1, 2019, 2020, and as of that date is repealed.

SEC. 10.

 Section 22443.2 of the Business and Professions Code is amended to read:

22443.2.
 (a) The Secretary of State shall issue a cease and desist order to a person subject to this chapter’s provisions who has failed to comply with the provisions governing the filing and maintenance of bonds or who does not satisfactorily pass a background check required by Section 22441.1, and shall give notice of the person’s noncompliance or failure to satisfactorily pass the background check to the Attorney General. Prior to issuing a cease and desist order to a person pursuant to this subdivision, the Secretary of State shall provide the person with notice and an opportunity to demonstrate that grounds do not exist for disqualification.
(b) For orders issued for failure to comply with the provisions governing the filing and maintenance of bonds, the order shall include a statement that notice of the person’s noncompliance shall be sent to the Attorney General.
(c) This section shall remain in effect only until January 1, 2019, 2020, and as of that date is repealed.

SEC. 11.

 Section 22443.3 of the Business and Professions Code is amended to read:

22443.3.
 (a) It is unlawful for any person to disseminate by any means any statement indicating directly or by implication that the person engages in the business or acts in the capacity of an immigration consultant, or proposes to engage in the business or act in the capacity of an immigration consultant, unless the person has on file with the Secretary of State a disclosure statement and a bond, in the amount of, and subject to the terms described in, Section 22443.1, that is maintained throughout the period covered by the statement, such as, but not limited to, the period of a Yellow Pages listing.
(b) This section shall remain in effect only until January 1, 2019, 2020, and as of that date is repealed.

SEC. 12.

 Section 22449 of the Business and Professions Code is amended to read:

22449.
 (a) Immigration consultants, attorneys, notaries public, and organizations accredited by the United States Board of Immigration Appeals shall be the only persons 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, 2020, and as of that date is repealed.

SEC. 13.

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

22449.
 (a) Attorneys, paralegals, and organizations accredited by the United States Department of Justice shall be the only persons authorized to charge clients or prospective clients fees for providing consultations, legal advice, or 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 Department of Justice 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. 2020.

SEC. 14.

 Section 8223 of the Government Code is amended to read:

8223.
 (a) A notary public who holds himself or herself out as being an immigration specialist, immigration consultant, or any other title or description reflecting an expertise in immigration matters shall not advertise in any manner whatsoever that he or she is a notary public.
(b) A notary public qualified and bonded as an immigration consultant under Chapter 19.5 (commencing with Section 22440) of Division 8 of the Business and Professions Code may enter data, provided by the client, on immigration forms provided by a federal or state agency. The fee for this service shall not exceed fifteen dollars ($15) per individual for each set of forms. If notary services are performed in relation to the set of immigration forms, additional fees may be collected pursuant to Section 8211. This fee limitation shall not apply to an attorney, who is also a notary public, who is rendering professional services regarding immigration matters.
(c) This section shall not be construed to exempt a notary public who enters data on an immigration form at the direction of a client, or otherwise performs the services of an immigration consultant, as defined by Section 22441 of the Business and Professions Code, from the requirements of Chapter 19.5 (commencing with Section 22440) of Division 8 of the Business and Professions Code. A notary public who is not qualified and bonded as an immigration consultant under Chapter 19.5 (commencing with Section 22440) of Division 8 of the Business and Professions Code may not enter data provided by a client on immigration forms nor or otherwise perform the services of an immigration consultant.
(d) This section shall remain in effect only until January 1, 2019, 2020, and as of that date is repealed.

SEC. 15.

 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.