BILL NUMBER: AB 630 CHAPTERED
BILL TEXT
CHAPTER 605
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2006
APPROVED BY GOVERNOR SEPTEMBER 29, 2006
PASSED THE ASSEMBLY AUGUST 29, 2006
PASSED THE SENATE AUGUST 28, 2006
AMENDED IN SENATE AUGUST 22, 2006
AMENDED IN SENATE AUGUST 14, 2006
AMENDED IN SENATE AUGUST 7, 2006
AMENDED IN SENATE JUNE 27, 2006
AMENDED IN SENATE JUNE 21, 2006
AMENDED IN SENATE JUNE 19, 2006
AMENDED IN SENATE MAY 30, 2006
INTRODUCED BY Assembly Member Chu
(Coauthors: Assembly Members Chan and Laird)
(Coauthors: Senators Ortiz and Romero)
FEBRUARY 17, 2005
An act to amend Sections 22442, 22443.1, 22443.3, and 22445 of,
and to add Sections 6126.4, 22441.1, 22442.4, and 22443.2 to, the
Business and Professions Code, relating to immigration consultants.
LEGISLATIVE COUNSEL'S DIGEST
AB 630, Chu Immigration consultants.
Existing law provides for the regulation of a person engaged in
the business or acting in the capacity of an immigration consultant.
Existing law requires an immigration consultant to file a bond with,
and submit a disclosure form and a copy of a photograph
identification to, the Secretary of State. Existing law requires the
Secretary of State to post on its Internet Web site information
demonstrating that an immigration consultant is in compliance with
the bond requirement.
This bill would also require a person engaged in the business or
acting in the capacity of an immigration consultant to submit to the
Department of Justice (DOJ) fingerprint images and other information
required by DOJ to obtain the person's criminal history information,
as specified. The bill would require DOJ to forward the person's
fingerprint images and other information to the Federal Bureau of
Investigation to obtain federal criminal history information and
would require DOJ to report the criminal history information to the
Secretary of State. The bill would require an immigration consultant
to pass a background check, and would require his or her
disqualification for specified reasons. The bill would require the
Secretary of State to post on its Internet Web site information,
other than criminal history information received from DOJ,
demonstrating that an immigration consultant has passed the
background check and a copy of his or her photograph, and would only
allow posting of this information and the information regarding bond
compliance if he or she has met those requirements. The bill would
require the Secretary of State to issue a cease and desist order to a
person who has failed to maintain a valid bond or to pass the
background check, after giving the person notice and an opportunity
to demonstrate that grounds do not exist for the order, and to give
notice of the failure to the Attorney General.
Existing law requires an immigration consultant to provide a
client with a written contract prior to providing services. Existing
law makes it unlawful for a person to disseminate any statement that
the person acts or proposes to act as an immigration consultant
without having a bond on file with the Secretary of State.
This bill would require an immigration consultant to include
information in the written contract regarding reporting complaints to
the California Department of Justice and the State Bar of
California. The bill would also make it unlawful for a person to
disseminate a statement that the person acts or proposes to act as an
immigration consultant without having a disclosure statement on file
with the Secretary of State.
Existing law makes a violation of the provisions regulating
immigration consultants a misdemeanor, subject to specified fines.
This bill would specify that an action for a violation of those
provisions must be commenced within 4 years after discovery of the
commission of the offense.
Because this bill would create a new crime, the bill would impose
a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6126.4 is added to the Business and Professions
Code, to read:
6126.4. Section 6126.3 shall apply to a person acting in the
capacity of an immigration consultant pursuant to Chapter 19.5
(commencing with Section 22440) who advertises or holds himself or
herself out as practicing or entitled to practice law, or otherwise
practices law.
SEC. 2. Section 22441.1 is added to the Business and Professions
Code, 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.
SEC. 3. Section 22442 of the Business and Professions Code is
amended to read:
22442. (a) Every person engaged in the business or acting in the
capacity of an immigration consultant who enters into a contract or
agreement with a client to provide services shall, prior to providing
any services, provide the client with a written contract, the
contents of which shall be prescribed by the Department of Consumer
Affairs in regulations.
(b) The written contract shall include all provisions relating to
the following:
(1) The services to be performed.
(2) The costs of the services to be performed.
(3) There shall be printed on the face of the contract in 10-point
boldface type a statement that the immigration consultant 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 immigration consultant, and shall explain the purpose and
process of each document.
(5) The written contract shall state the purpose for which the
immigration consultant has been hired and the actions to be taken by
the immigration consultant 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 he or she may report complaints relating to
immigration consultants to the Office of Immigrant Assistance of the
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 Web sites of those entities.
(c) An immigration consultant may not include provisions in the
written contract relating to the following:
(1) Any guarantee or promise, unless the immigration consultant
has some basis in fact for making the guarantee or promise.
(2) Any statement that the immigration consultant 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 contents of this subdivision
shall be conspicuously set forth in the written contract in both
English and the client's native language.
(g) An immigration consultant may not make the statements
described in subdivision (c) orally to a client.
(h) 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 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.
SEC. 4. Section 22442.4 is added to the Business and Professions
Code, 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.
SEC. 5. 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 fifty thousand dollars
($50,000) 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 fifty
thousand dollars ($50,000).
(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 U.S. Department of State
for obtaining a United States passport, as instructed by the
Secretary of State. An immigration consultant bonded on or before
December 31, 2006, shall submit the photograph on or before July 1,
2007.
(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 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.
SEC. 6. Section 22443.2 is added to the Business and Professions
Code, 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.
SEC. 7. 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 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.
SEC. 8. 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, 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, 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 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 by
imprisonment in state prison.
(d) An action brought pursuant to this section shall be commenced
within four years after discovery of the commission of the offense.
SEC. 9. 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.