BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
William W. Monning, Chair
Date of Hearing: June 12, 2013 2013-2014 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 35
Author: Hernandez
As Introduced/Amended: April 15, 2013
SUBJECT
Deferred action for childhood arrivals
KEY ISSUES
Should a new class of immigrants be specifically protected
against fraud and abuse by unqualified persons filing
immigration applications or giving legal advice?
Should immigration consultants, attorneys, notaries public, and
organizations accredited by the U.S. Board of Immigration
Appeals be the only persons authorized to charge fees for
providing services associated with the filing of an application
under the federal Deferred Action for Childhood Arrivals
program?
Should persons who have been granted deferred action and given
employment authorization under the federal Deferred Action for
Childhood Arrivals program be eligible to receive unemployment
compensation benefits?
ANALYSIS
Under existing federal law, the Deferred Action for Childhood
Arrivals (DACA) program , the Secretary of the Department of
Homeland Security (DHS) 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 would be
eligible for work authorization. Determinations are made on a
case-by-case basis under the guidelines set forth by the
department.
Existing law 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.
Additionally, the Board of Immigration Appeals (BIA), within the
U.S. Department of Justice and the highest administrative body
for interpreting and applying immigration laws, is also
responsible for the recognition of organizations and
accreditation of representatives requesting permission to
practice before DHS, the immigration courts, and the BIA.
Existing law 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 (USCIS)] to engage in the
business or act in the capacity of an immigration consultant
within the state except as provided by law. (Business and
Professions Code §22440)
Under existing law, 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 that
includes but is not limited to the following (Business and
Professions Code §22441):
1. Completing a form provided by a federal or state agency
but not advising a person as to their 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
their request to the United States Citizenship and
Immigration Services;
Hearing Date: June 12, 2013 AB 35
Consultant: Alma Perez Page 2
Senate Committee on Labor and Industrial Relations
5. Making referrals to persons who could undertake legal
representation activities for a person in an immigration
matter.
Existing law provides that immigrants who are authorized to work
are entitled to unemployment compensation if they otherwise
satisfy the eligibility requirements. (Unemployment Insurance
Code §1264) The Unemployment Insurance (UI) program,
administered by the Employment Development Department (EDD), is
a federal-state program that provides weekly unemployment
insurance payments to eligible workers who lose their jobs
through no fault of their own.
Existing law provides that any federal document demonstrating
favorable action by the federal government for acceptance of a
person 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 §12801.6)
This Bill seeks to extend consumer protections and improve the
treatment of immigrants, particularly those who have been
granted legal temporary status under the federal Deferred Action
for Childhood Arrivals (DACA) program.
Specifically, this bill would:
1) Specify that immigration consultants, attorneys,
notaries public, and organizations accredited by the U.S.
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 the filing of an
application.
2) Prohibit immigration consultants, attorneys, notaries
public, and organizations accredited by the U.S. Board of
Immigration Appeals from participating in practices that
amount to price gouging when a client or prospective client
solicits services associated with the filing of a DACA
application.
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Senate Committee on Labor and Industrial Relations
3) Define "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 paying of a higher price for
the same services.
4) Provide that in addition to existing civil and criminal
penalties, a violation of these provisions by an attorney
shall be cause for discipline by the State Bar, and
violations by a notary public shall be cause for the
revocation or suspension of his/her commission as a notary
public by the Secretary of State.
5) Clarify that a person who has been granted deferred
action by the federal government under the DACA program
shall be eligible for UI benefits contingent on receipt of
employment authorization from the federal government.
6) Clarify that a person who has been granted deferred
action under the DACA program may be issued an original
California identification card - in addition to the
currently allowed issuance of a driver's license.
COMMENTS
1. Background on the federal Deferred Action for Childhood
Arrivals (DACA) program:
The issue of immigration reform has been the subject of
discussions, rallies and protests, and more recently,
negotiations, by many including Congress and the immigrant
community of the United States for many years. According to
the U.S. Department of Homeland Security, the current federal
administration has consistently pressed for passage of
comprehensive immigration reform, including the DREAM Act,
because the President believes these steps are critical to
building a 21st century immigration system that meets our
nation's economic and security needs. Although comprehensive
immigration reform has yet to be passed, the administration
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Senate Committee on Labor and Industrial Relations
has undertaken an unprecedented effort to transform the
immigration enforcement system into one that focuses on public
safety, border security and the integrity of the immigration
system.
On June 15, 2012, the Secretary of the United States
Department of Homeland Security announced that certain people
who came to the United States as children and meet several key
guidelines are eligible to request consideration of deferred
action for a period of two years, subject to renewal, and
would then be eligible for work authorization. The person has
to meet the following requirements and apply with the U.S.
Citizenship and Immigration Service (USCIS):
1) Were under the age of 31 as of June 15,
2012;
2) Came to the United States before reaching
your 16th birthday;
3) Have continuously resided in the U.S. since
June 15, 2007, up to the present;
4) Were physically present in the U.S. on June
15, 2012, and at the time of making your request
for consideration of deferred action with USCIS;
5) Entered without inspection before June 15,
2012, or your lawful immigration status expired as
of June 15, 2012;
6) Are currently in school, have graduated or
obtained a certificate of completion from high
school, have obtained a general education
development (GED) certificate, or are an honorably
discharged veteran of the Coast Guard or Armed
Forces of the United States; and
7) Have not been convicted of a felony,
significant misdemeanor, three or more other
misdemeanors, and do not otherwise pose a threat to
national security or public safety.
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Senate Committee on Labor and Industrial Relations
On August 15, 2012, the USCIS began accepting applications for
the Deferred Action for Childhood Arrivals program. According
to USCIS, as of May 8th, 2013, there had been a total of
515,922 applications for deferred action received of which
291,859 have been approved. In California alone, 141,367
individuals had DACA applications accepted, of which 87,142
were approved.
2. Need for this bill?
Immigrant workers, both documented and undocumented, are a
significant presence in California's workplace and economy.
According to a National Employment Law Project (NELP) report,
in 2010, 23.1 million foreign-born persons participated in the
civilian labor force. While comprehensive immigration reform
tackling the legalization of the millions of foreign-born is
still pending, the President did take a very significant step
in addressing the lives of individuals who were brought to
this country very young and whose life is adversely affected
by their immigration status. The "dreamers," the young
undocumented immigrants who for decades have had to put their
lives on hold or let their dreams and aspirations go because
of their immigration status - are now able to 'legally'
contribute to our country. With the help of the federal
Deferred Action for Childhood Arrivals program, qualifying
individuals have the opportunity to gain temporary legal
status granting them work authorization and driver's licenses
in California [AB 2189 (Cedillo) from 2012].
This bill seeks to extend consumer protections and improve the
treatment of immigrants, particularly those who have been
granted legal temporary status under the federal Deferred
Action for Childhood Arrivals (DACA) program. With the
creation of DACA, 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 - a market which will
undoubtedly grow if comprehensive immigration reform is
realized.
Hearing Date: June 12, 2013 AB 35
Consultant: Alma Perez Page 6
Senate Committee on Labor and Industrial Relations
This bill 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.
Additionally, this bill would also 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. Lastly, the bill has a
third provision authorizing the issuance of CA identification
cards to those who are granted deferred action - current law
already authorizes these individuals to receive a driver's
license in CA.
3. Proponent Arguments :
According to the author, in the first several months of the
DACA program, their office heard anecdotally from the CA Rural
Legal Assistance Foundation 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. The author argues that, accordingly, professionals
are providing services that may not be within their scope of
practice or even worse, without a license or certification.
Proponents note that individuals are being advised about the
importance of applying to the DACA program only after they are
certain they meet the criteria, otherwise, applicants could
potentially face deportation. As of May 2013, 17,962 DACA
applications have been rejected in the U.S. and 2,352 denied.
The author argues that 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,
this bill creates consumer protections by ensuring that
professional assistance acquired for purposes of filling out a
DACA application is consistent with scope of practice laws so
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Senate Committee on Labor and Industrial Relations
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.
Additionally, proponents argue that this bill would further
integrate those involved in the DACA program into our economy
by establishing eligibility for state identification cards and
unemployment insurance benefits.
4. Opponent Arguments :
None received.
5. Double Referral :
This bill has been double referred and, if approved by this
committee, it will be sent to the Senate Judiciary Committee
for a hearing.
6. Prior or Related Legislation :
AB 2189 (Cedillo) of 2012: Chaptered
AB 2189, among other things, created the Labor Code section
authorizing individuals granted temporary legal status under
the federal Deferred Action for Childhood Arrivals program to
receive an original driver's license from the CA Department of
Motor Vehicles.
SB 666 (Steinberg) of 2013: Pending Referral at Assembly Desk
SB 666 would strengthen the retaliation laws that currently
protect all workers while emphasizing that reports or threats
against a worker based on his or her immigration
status are not acceptable and will place the employer, or
his/her representative, at risk of incurring civil penalties,
potential loss of their business license or, if an attorney,
disbarment.
SUPPORT
Hearing Date: June 12, 2013 AB 35
Consultant: Alma Perez Page 8
Senate Committee on Labor and Industrial Relations
American Academy of Pediatrics, California
American Federation of State, County and Municipal Employees,
AFL-CIO
California Immigrant Policy Center
California Primary Care Association
Coalition for Humane Immigrant Rights of Los Angeles
Coalition of California Welfare Rights Organizations, Inc.
Community Clinic Association of Los Angeles County
Mexican American Legal Defense and Educational Fund
OPPOSITION
None received
Hearing Date: June 12, 2013 AB 35
Consultant: Alma Perez Page 9
Senate Committee on Labor and Industrial Relations