BILL ANALYSIS Ó
AB 35
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Date of Hearing: April 9, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 35 (Hernández) - As Amended: April 4, 2013
As Proposed to be Amended
SUBJECT : IMMIGRANTS AND IMMIGRATION CONSULTANTS
KEY ISSUES :
1)SHOULD A NEW CLASS OF IMMIGRANTS BE SPECIFICALLY PROTECTED
AGAINST FRAUD AND ABUSE BY UNQUALIFIED PERSONS REGARDING
SPECIFIED IMMIGRATION FILINGS?
2)SHOULD PERSONS WHO HAVE RECEIVED A NOTICE OF DECISION FROM THE
FEDERAL GOVERNMENT GRANTING DEFERRED ACTION UNDER THE DEFERRED
ACTION FOR CHILDHOOD ARRIVALS PROGRAM BE ELIGIBLE FOR
UNEMPLOYMENT COMPENSATION BENEFITS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
By this measure the author seeks to improve the treatment of
immigrants who are approved by the federal government for
deferred action under the recently-announced deferred action for
childhood arrivals program. The bill has two provisions of
interest to this Committee: First, it would ensure that
immigration consultants and others do not prey upon applicants
under this program by specifying that only authorized persons
may provide specified services, and prohibits price-gouging for
covered services. Second, the bill would clarify that, as many
believe is already the law, persons who are approved for
deferred action and who receive federal work authorization are
eligible for unemployment compensation if they otherwise satisfy
the criteria for benefits. The bill has a third provision
authorizing the issuance of State Identification cards to those
who are granted deferred action; this provision will be
considered by the Transportation Committee. The bill has no
opposition.
SUMMARY : Seeks to improve the treatment of immigrants,
particularly those who have received a notice of decision from
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the federal government granting deferred action under the
deferred action for childhood arrivals program. Specifically,
this bill :
1)Clarifies that immigration consultants, attorneys, and
notaries public 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
deferred action for childhood arrivals program announced by
the United States Secretary of the Department of Homeland
Security on June 15, 2012.
2)Specifies that immigration consultants, attorneys, and
notaries public 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, and
defines "price gouging" as 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.
3)Provides that in addition to existing civil and criminal
penalties, a violation of this section by an attorney shall be
cause for discipline by the State Bar, and that 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.
4)Clarifies that a person who has received a notice of decision
from the federal government granting deferred action under the
deferred action for childhood arrivals program announced by
the United States Secretary of the Department of Homeland
Security on June 15, 2012, shall be eligible for unemployment
compensation contingent on receipt of employment authorization
from the federal government.
5)Clarifies that persons who demonstrate favorable action by the
federal government for acceptance of a person into the
deferred action for childhood arrivals program may be issued
an original California identification card.
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EXISTING LAW :
1)Under existing federal law, the Secretary of the Department of
Homeland Security has issued a directive allowing certain
undocumented individuals who meet several key criteria for
relief from removal from the United States or from entering
into removal proceedings to be eligible to receive deferred
action for a period of 2 years, subject to renewal, and who
will be eligible to apply for work authorization. (See
information at
http://www.dhs.gov/deferred-action-childhood-arrivals.)
2)Provides for the regulation of immigration consultants by the
Department of Consumer Affairs, the licensure and regulation
of attorneys by the State Bar of California, and the
commission of notaries public by the Secretary of State. A
violation of certain of these provisions is a crime.
(Business and Professions Code section 2240 et seq.)
Specifically, provides that 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
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 (section 22440).
Specifies that a person engages in the business or acts in the
capacity of an immigration consultant when that person gives
non-legal assistance or advice on an immigration matter
including but is not limited to: completing a form provided by
a federal or state agency but not advising a person as to
their answers on those forms; translating a person's answers
to questions posed in those forms; securing for a person
supporting documents, such as birth certificates, which may be
necessary to complete those forms; submitting completed forms
on a person's behalf and at their request to the United States
Citizenship and Immigration Services; making referrals to
persons who could undertake legal representation activities
for a person in an immigration matter. (Section 22441.)
3)Provides that immigrants who are authorized to work are
entitled to unemployment compensation if they otherwise
satisfy the eligibility requirements. (Unemployment Insurance
Code section 1264; 26 USC section 3304(a)(14)(A).)
4)Provides that any federal document demonstrating favorable
action by the federal government for acceptance of a person
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into this deferred action program shall satisfy specified
requirements for the purposes of being authorized to receive
an original driver's license from the Department of Motor
Vehicles, as described. (Vehicle Code section 12801.6.)
COMMENTS : The author explains the reason for the bill as
follows:
On July 15, 2012, the U.S. Department of Homeland Security
issued a directive calling for prosecutorial discretion in
the enforcement of the country's immigration laws toward
immigrants meeting several criteria. That criteria was set
to largely coincide with the nation's DREAMer population -
that is young undocumented immigrants who have been in the
country for several years, have graduated from a U.S. high
school, have served at least two years in college or the
military and have no felonies or serious criminal offenses.
The program was called the Deferred Action for Childhood
Arrivals and became more commonly known as "Deferred
Action" or DACA. The program was officially implemented on
August 15, 2012. According to USCIS statistics as issued
in the February 21, 2013 White House Immigration Action
Newsletter, 438,372 applications had been received through
February14, 2013, and 119,466 of those had come from
California. This means that 27.3% of the applications
submitted came from young immigrants currently residing in
California.
In the first several months of the program, our office
heard anecdotally CRLAF and the Mexican Consulate that many
young immigrants wishing to apply were scared of filling
out their own paperwork, for fear of filling something out
incorrectly and possibly facing deportation as a
consequence. While these two organizations were providing
assistance for free, many prospective applicants felt more
secure contracting professionals for pay, such as private
attorneys and notary publics. Accordingly, professionals
were providing services that were not within their scope of
practice and even worse, others without any license,
certification, or waiver were providing legal services for
pay upward of $1,000.
In a workshop I attended at the Mexican Consulate Office in
Sacramento, I heard presenters talk about the importance of
applying to the DACA program only after they are certain
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they meet the criteria. Otherwise, applicants could
potentially face deportation.
Since August 15, 2012, of the 438,372 applications
received, a total of 14,738 of applications have been
rejected. If 27.3% of these rejected applications came from
California, an estimated 4,023 applications were rejected
from our state in a matter of 6 months. That is an
estimated 670 CA applications rejected per month.
If any of these rejected applications were filled out with
the paid assistance of an individual without a license or
performing work outside of their scope of practice, this
should be considered consumer fraud.
Thus, the bill creates consumer protections by ensuring
that professional assistance acquired for purposes of
filling out a DACA application should be consistent with
scope of practice laws so that the consumer is protected
and has recourse to pursue action from the regulatory body
of the licensed or certified individual if any wrong doing
was committed by the professional.
The bill also clarifies that people becoming eligible for
the DACA program be eligible for a California
identification card and unemployment insurance benefits
consistent with the law. In addition, the bill calls for
people who have been approved to the DACA program be
eligible for state administered health care programs.
Specific Consumer Protections For DACA Applicants. Existing law
establishes minimum consumer protections regarding who may
engage in the business of preparing and advising on immigration
applications and the like. Supporters contend that these
protections would be strengthened by adding a provision that is
specific to DACA applicants particularly because the volume of
applicants under the DACA may lead to greater fraud and abuse in
a program that is not always well understood. The author
states:
With the creation of the DACA program, a new market was
created for professional immigration-related services.
This bill seeks to create consumer protections specifically
for people in the market for legal, consulting, and notary
services for the purpose of advice on the DACA program and
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assistance with applications.
Because the nation is expecting Comprehensive Immigration
Reform to become a reality in the near future, many
immigrants, beyond those eligible for the DACA program,
will be in the market for immigration services. The plural
majority of those will likely reside in California and
solicit services in California. Thus, there couldn't be a
better time for our state to crack down on fraudulent
activity targeting immigrants seeking to renew their
status. It is imperative that consumer protections be
strengthened given that a faulty solicitation will likely
end in deportation, causing the separation of families,
among other damage.
This Bill Clarifies That Persons Who Are Approved Under The
Deferred Action For Childhood Arrivals Program And Are
Authorized To Work Are Entitled To Unemployment Compensation If
They Are Otherwise Eligible . According to supporters,
applicants approved under the deferred action for childhood
arrivals program fall within the categories eligible for the
immigration classification known as PRUCOL (permanently residing
under color of law). (See, e..g.,
http://ows.doleta.gov/dmstree/uipl/uipl86/uipl_0186c1.htm.)
Accordingly, they typically are eligible under various state and
federal programs, and generally receive work authorization.
As such, these persons are arguably entitled to unemployment
compensation under existing law. (See Unemployment Insurance
Code section 1264.) This bill would simply clarify that if an
applicant for deferred action is approved, and if that person
also receives authorization to work, he or she may receive
unemployment compensation if they are otherwise eligible. While
it may be strictly speaking unnecessary and duplicative of
existing law, it would appear to be a sensible step to clarify
the matter so that there is no ambiguity.
As the author explains: "A ? purpose of the bill is to codify
that a person who is accepted to the DACA program shall be
eligible for unemployment insurance (UI) benefits, subject to
the same eligibility standards as other workers. Presently,
workers who wish to submit an UI claim must meet the following
eligibility requirements:
Have received enough wages during the base period to
establish a claim.
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Be totally or partially unemployed.
Be unemployed through no fault of his/her own.
Be physically able to work.
Be available for work which means to be ready and willing
to immediately accept work.
Be actively looking for work.
Meet eligibility requirements each week benefits are
claimed.
Be approved for training before training benefits can be
paid.
Upon acceptance to the DACA program, youth who are deemed to
have economic necessity, which virtually all people have, are
provided with a social security number for purposes of being
able to work to financially sustain themselves during the
two-year stay. The bill would codify that people authorized to
work by the federal government using their own social security
number, and who indeed work using their social security number
during a base period, and become unemployed for no fault of
their own, are able to access this safety net afforded to the
state's authorized workforce.
Given a 2012 bill, chaptered into law, codified access to driver
licenses, the office acknowledged that not all youth who are
approved to the DACA program may be eligible for a driver
license due to age requirements, for example. The bill thus has
the purpose of codifying eligibility to a state identification
card."
ARGUMENTS IN SUPPORT : In support of the bill, the California
Immigrant Policy Center (CIPC) states:
On June 15, 2012, President Barack Obama announced that the
U.S. Department of Homeland Security (DHS) would not deport
certain DREAM Act-eligible undocumented youth. Under a
directive from the secretary of DHS, these youth will be
given a type of temporary permission to stay in the U.S.
called "deferred action." This particular program often is
referred to as Deferred Action for Childhood Arrivals, or
DACA. Deferred action is a type of administrative relief
from deportation that has been around for many years.
Through it, the DHS authorizes a non-U.S. citizen to
temporarily remain in the United States.
AB 35 seeks to provide greater consumer protections to
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California youth who apply for the DACA program.
Specifically, it seeks to specify that only immigration
consultants, attorneys, notaries, and other accredited
organizations shall be authorized to charge applicants for
these services. Additionally, it seeks to prohibit these
designees from price gouging. Over the years, we have found
that immigrant communities are often targeted by a variety
of bad actors that rely on the fact that community members
may be afraid to report crimes and act as witnesses due to
fear of detention or deportation under federal immigration
enforcement policies. Additionally, applying for deferred
action is quite a difficult, often confusing process, and
mistakes or errors could have severe consequences that
could lead to a denial or potentially a Notice to Appear
(NTA) in an administrative proceeding for immigration
enforcement purposes, if fraud is involved among the
parties completing the application. Given these challenges,
CIPC believes that specifying who may engage in this work
is important to ensure that assisters of applicants
maintain a certain level of care. We also believe it is
necessary to protect the applicants themselves from being
price gouged by being pressured to contract for services or
end up working with someone who may push forward a
fraudulent application to DHS. California has 460,000
potential DACA applicants, more than any other state in the
country, and we believe they should be protected.
Currently, only about one-third, or 128,412 have applied as
of March 2013.
Additionally, AB 35 also seeks to codify that DACA approved
youth are entitled to unemployment insurance benefits. DACA
applicants may also apply for an employment authorization
document, "a work permit", for the period during which he
or she has deferred action. With lawful presence and a work
permit, individuals will be working, continuing to pay
taxes, and be fully contributing to California's economy.
Thus, CIPC believes that these individuals should be
eligible for a wide range of public benefits and privileges
similar to U.S. citizens living in California. However,
under current law DACA youth are only eligible for a
patchwork of public benefits; most notably California's
state-funded full-scope Medi-Cal program available for
lawfully present immigrants who may be ineligible for
federal benefits.
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Unemployment is another benefit which DACA approved
individuals are eligible for under federal law.
First, there would be a "base period", as all unemployment
insurance benefits (UIB) applicants need to have had a
connection to the work force as lawfully present
individuals during the base period, which goes back about
15 months, and then ahead for a year. DACA recipients would
generally need to work for at least 12-15 months with that
status first, and no unemployment insurance benefits would
become available for a while. Then if they are terminated
without good cause, they will need to have a valid work
permit at that time. Thus, under current law, some may
eventually become eligible for UIB in the future, if DACA
and their own work permits are still in place. AB 35 seeks
to codify eligibility for this population in California
law.
AB 35 also seeks to further clarify California law to
ensure that DACA approved individuals are eligible for a
California ID. Currently, the DMV already accepts the
lawful presence documents DACAs receive to be eligible for
a California ID. However, AB 35 (Hernandez) seeks to
clarify in California law that these individuals are
eligible for a license to ensure that there are not any
administrative issues moving forward which may cause a DACA
approved individual to be denied. Similarly, AB 2189
(Cedillo) of 2012 clarified existing law to ensure
eligibility for driver's licenses. CIPC believes that all
California residents should be eligible for a driver's
license and a California ID, but appreciates that AB 35
seeks to clarify the law as it relates to DACAs.
Author's Technical Amendments. In order to correct drafting
errors, the author appropriately proposes the following
clarifying amendments:
SEC. 1
22449. (a) Immigration consultants, attorneys, and 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,
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respectively, associated with filing an application under the
deferred action for childhood arrivals program announced by the
United States Secretary of the Department of Homeland Security
on June 15, 2012.
(b) (1) Immigration consultants, attorneys, and 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).
SEC 4. The provisions of this act are declarative of existing
law.
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
California Immigrant Policy Center
California Welfare Rights Organizations
Coalition for Humane Immigrants Rights of Los Angeles
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334