Amended in Senate August 12, 2013

Amended in Senate July 10, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 1159


Introduced by Assembly Member Gonzalez

(Principal coauthor: Senator De León)

February 22, 2013


An act to amend Sections 22442 and 22443.1 of, to add Sections 22442.15 and 22442.20 to, and to add Article 16 (commencing with Section 6240) to Chapter 4 of Division 3 of, the Business and Professions Code, relating to immigrationbegin delete services.end deletebegin insert services, and declaring the urgency thereof, to take effect immediately.end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 1159, as amended, Gonzalez. Immigration services.

Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation.

This bill would require attorneys providing immigration reform act services, as defined, to register with the State Bar, as specified. The bill would require these attorneys to provide a client with a written contract containing specified information, including an itemized list, with costs, of each service to be performed; to provide to the client a statement of accounting for the services rendered and payments made every 2 months; and to deliver to the client a copy of each document or form completed on behalf of the client. The bill would require these attorneys to comply with certain requirements relating to document retention and the return of original documents to clients and to file with the State Bar a bond of $100,000 in accordance with specified provisions. The bill would require these attorneys to deposit in a client trust account any funds received from the client prior to performing those services for that client, and would impose certain requirements relating to the expenditure of funds from this trust account. The bill would authorize the State Bar to charge these attorneys certain fees for the reasonable regulatory costs of administering and enforcing these provisions and would require the State Bar to adopt rules and regulations for purposes of implementing these provisions.

Existing law provides for the regulation of a person engaged in the business or acting in the capacity of an immigration consultant, and provides that a violation of these provisions is a crime. Existing law requires an immigration consultant to provide a client with a written contract containing specified information prior to providing services. Existing law requires an immigration consultant to file a bond of $50,000 with the Secretary of State in accordance with specified provisions of law.

This bill would increase the amount of this bond to $100,000. The bill would require that the written contract contain additional information relating to an explanation of the purpose of each service to be performed. The bill would require an immigration consultant to establish a client trust account and to deposit in this account any funds received from the client prior to performing immigration reform act services, as defined, for that client, and would impose certain requirements relating to the expenditure of funds from this trust account.

The bill would prohibit an attorney or an immigration consultant from demanding or accepting the advance payment of any funds from a person before the enactment of a specified federal act, and would require any funds received after January 1, 2014, but before the enactment of the federal act, to be refunded to the client.

Because a violation of these provisions by an immigration consultant would be a crime, this bill would impose a state-mandated local program.

This bill would provide that certain of its provisions would become operative only upon the enactment of a specified federal act relating to immigration reform.

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.

begin insert

This bill would declare that it is to take effect immediately as an urgency statute.

end insert

Vote: begin deletemajority end deletebegin insert23end insert. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Article 16 (commencing with Section 6240) is
2added to Chapter 4 of Division 3 of the Business and Professions
3Code
, to read:

4 

5Article 16.  Attorneys Providing Immigration Reform Act
6Services
7

 

8

6240.  

(a) An attorney who provides immigration reform act
9services, and who meets the criteria described in subdivision (c),
10shall register with the State Bar as an attorney who provides
11immigration reform act services, and shall demonstrate compliance
12with this article, as may be required by the rules and regulations
13of the State Bar.

14(b) For purposes of this article, the following definitions apply:

15(1) “Immigration reform act” means the federal act known as
16the “Border Security, Economic Opportunity, and Immigration
17Modernization Act” (S. 744, 2013).

18(2) “Immigration reform act services” means consultation or
19 representation services related to immigration and citizenship
20status, benefits, or relief under the immigration reform act.

21(c) Except as provided in subdivision (d), this article shall apply
22to the following:

23(1) An attorney who is a member of the State Bar who provides
24immigration reform act services.

25(2) An attorney who is not a member of the State Bar, but who
26meets both of the following:

27(A) The attorney is authorized to practice law or authorized by
28federal law to represent persons before the Board of Immigration
29Appeals or the United States Citizenship and Immigration Services.

30(B) The attorney is providing immigration reform act services
31in an office or business in California.

P4    1(d) This article does not apply to an attorney providing
2immigration reform act services who is either of the following:

3(1) An employee of a qualified free legal service provider, that
4is on the current list maintained by the Office of the Chief
5Immigration Judge of the Executive Office for Immigration Review
6and that meets the qualifications under Section 1003.61 of Title 8
7of the Code of Federal Regulations.

8(2) An employee of a nonprofit, tax-exempt corporation who
9helps clients complete application forms in immigration matters
10free of charge, or for a fee, including reasonable costs, consistent
11with that authorized by the Board of Immigration Appeals under
12Section 292.2 of Title 8 of the Code of Federal Regulations.

13

6241.  

(a) An attorney providing immigration reform act
14services shall, prior to providing these services, provide the client
15with a written contract in a form approved by the State Bar. The
16written contract shall include, but is not limited to, all of the
17following provisions:

18(1) An itemized list specifying each service to be performed,
19with an explanation of the purpose and process of each service.

20(2) The cost of each itemized service described in paragraph
21(1).

22(3) An itemized list of the documents to be prepared by the
23attorney, with an explanation of the purpose and process of each
24document.

25(4) The cost of preparation of each itemized document described
26in paragraph (3).

27(5) A statement of the purpose for which the attorney has been
28hired and the actions to be taken by the attorney regarding each
29document described in paragraph (3), including the agency and
30office where each document will be filed and the approximate
31processing times according to applicable published agency
32guidelines.

33(6) A statement informing the client that he or she may report
34complaints to the Office of Immigrant Assistance of the
35Department of Justice and to the State Bar of California. This
36statement shall include the toll-free telephone numbers and Internet
37Web sites of those entities.

38(b) An attorney providing immigration reform act services shall
39not, in writing or orally, make either of the following statements:

40(1) A guarantee or promise regarding the results of the services.

P5    1(2) A statement that the attorney can or will obtain special favors
2from, or has special influence with, the United States Citizenship
3and Immigration Services or any other governmental agency,
4employee, or official that may have a bearing on a client’s
5immigration matter.

6(c) The provisions of the written contract shall be stated in
7English and in the client’s native language. A written contract is
8void if it is not written pursuant to this subdivision.

9(d) The client shall have the right to rescind the contract within
1072 hours of signing the contract. The written contract shall
11conspicuously state this right in both English and the client’s native
12language.

13

6242.  

A statement of accounting for the immigration reform
14act services rendered and payments made shall be provided to the
15client every two months, shall be typed or computer generated on
16the attorney’s letterhead, and shall display the itemized charges
17and total charges for services and the client’s payments offsetting
18those charges. The attorney shall provide the client a written
19translation of the statement in the client’s native language, if
20applicable.

21

6243.  

An attorney providing immigration reform act services
22shall do all of the following:

23(a) Deliver to the client a copy of each document or form
24completed on behalf of the client. Each document and form
25delivered shall include the name and address of the attorney who
26prepared the document or form.

27(b) Retain copies of all documents and forms of a client for not
28less than three years from the date of the last service to the client.

29(c) Return to a client all original documents that the client has
30provided to the attorney in support of the client’s application,
31including, but not limited to, original birth certificates, rental
32agreements, utility bills, employment stubs, Department of Motor
33Vehicle licenses with dates of entry, and passports. An original
34document that does not need to be submitted to immigration
35authorities as an original document shall be returned by the attorney
36immediately after making a copy or reproduction thereof.

37

6244.  

(a) (1) Prior to providing immigration reform act
38services, an attorney shall file with the State Bar a bond of one
39hundred thousand dollars ($100,000) executed by a corporate
40surety admitted to do business in this state and conditioned upon
P6    1compliance with this article. The total aggregate liability on the
2bond shall be limited to one hundred thousand dollars ($100,000).

3(2) The bond may be terminated pursuant to Section 995.440
4of, and Article 13 (commencing with Section 996.310) of Chapter
52 of Title 14 of Part 2 of, the Code of Civil Procedure.

6(b) The bond required by this section shall be in favor of, and
7payable to, the State Bar of California and shall be for the benefit
8of any person damaged by any fraud, misstatement,
9misrepresentation, unlawful act or omission, or failure to provide
10the immigration reform act services of the attorney or the agents,
11representatives, or employees of the attorney, while acting within
12the scope of that employment or agency.

13(c) An attorney shall notify the State Bar’s office in writing
14within 30 days when the surety bond required by this section is
15renewed, and of any change of name, address, telephone number,
16or agent for service of process.

17(d) The State Bar shall post information on its Internet Web site
18demonstrating that an attorney is registered to provide immigration
19reform act services and is in compliance with the requirements of
20this section. The State Bar shall update the information at least
21every 30 days. The State Bar shall remove this information if the
22attorney is out of compliance with the requirements of this section.

23(e) The State Bar shall adopt rules and regulations specifying
24the process by which a person may make a claim to recover
25damages from the bond.

26

6245.  

(a) An attorney who provides immigration reform act
27services shall deposit in a client trust account any funds received
28from the client prior to performing those services for that client.

29(b) The attorney providing the immigration reform act services
30for the client may withdraw funds received from that client only
31in compliance with either of the following:

32(1) After completing one or more of the itemized services
33described in paragraph (1) of subdivision (a) of Section 6241, and
34only in the amount identified as the cost of that service or those
35services pursuant to paragraph (2) of subdivision (a) of Section
366241.

37(2) After completing one or more of the itemized documents
38described in paragraph (3) of subdivision (a) of Section 6241, and
39only in the amount identified as the cost of the preparation of that
P7    1document or those documents pursuant to paragraph (4) of
2subdivision (a) of Section 6241.

3

6246.  

(a) It is unlawful for an attorney to demand or accept
4the advance payment of any funds from a person for immigration
5reform act services before the enactment of the immigration reform
6act.

7(b) Any funds received after January 1, 2014, but before the
8enactment of the immigration reform act, shall be refunded to the
9client.

10(c) This section shall become operative on January 1, 2014.

11

6247.  

The State Bar may charge and collect registration,
12renewal, and filing fees from attorneys providing immigration
13reform act services for the reasonable regulatory costs of
14administering and enforcing this article.

15

6248.  

(a) The State Bar shall adopt rules and regulations for
16purposes of implementing and enforcing this article.

17(b) Except as provided in Section 6246, this article shall become
18operative only upon the enactment of the immigration reform act.

19

SEC. 2.  

Section 22442 of the Business and Professions Code
20 is amended to read:

21

22442.  

(a) Every person engaged in the business, or acting in
22the capacity of, an immigration consultant who enters into a
23contract or agreement with a client to provide services shall, prior
24to providing any services, provide the client with a written contract,
25the contents of which shall be prescribed by the Department of
26Consumer Affairs in regulations.

27(b) The written contract shall include all provisions relating to
28the following:

29(1) The services to be performed. Each service to be performed
30shall be itemized with an explanation of the purpose and process
31of each service.

32(2) The cost of each itemized service to be performed.

33(3) There shall be printed on the face of the contract in 10-point
34boldface type a statement that the immigration consultant is not
35an attorney and may not perform the legal services that an attorney
36performs.

37(4) The written contract shall list the documents to be prepared
38by the immigration consultant, shall explain the purpose and
39process of each document, and shall list the cost for preparing each
40document.

P8    1(5) The written contract shall state the purpose for which the
2immigration consultant has been hired and the actions to be taken
3by the immigration consultant regarding each document, including
4the agency and office where each document will be filed and the
5approximate processing times according to current published
6agency guidelines.

7(6) The written contract shall include a provision that informs
8the client that he or she may report complaints relating to
9immigration consultants to the Office of Immigrant Assistance of
10the Department of Justice. The written contract shall also include
11a provision stating that complaints concerning the unauthorized
12 practice of law may be reported to the State Bar of California.
13These required provisions shall include the toll-free telephone
14numbers and Internet Web sites of those entities.

15(c) An immigration consultant shall not include provisions in
16the written contract relating to either of the following:

17(1) Any guarantee or promise, unless the immigration consultant
18has some basis in fact for making the guarantee or promise.

19(2) Any statement that the immigration consultant can or will
20obtain special favors from or has special influence with the United
21States Citizenship and Immigration Services, or any other
22governmental agency, employee, or official, that may have a
23bearing on a client’s immigration matter.

24(d) The provisions of the written contract shall be stated both
25in English and in the client’s native language.

26(e) A written contract is void if it is not written pursuant to
27subdivision (d).

28(f) The client shall have the right to rescind the contract within
2972 hours of signing the contract. The contents of this subdivision
30shall be conspicuously set forth in the written contract in both
31English and the client’s native language.

32(g) An immigration consultant shall not make the statements
33described in subdivision (c) orally to a client.

34(h) This section does not apply to employees of nonprofit,
35tax-exempt corporations who help clients complete application
36forms in an immigration matter free of charge or for a fee, including
37reasonable costs, consistent with that authorized by the Board of
38Immigration Appeals under Section 292.2 of Title 8 of the Code
39of Federal Regulations.

P9    1

SEC. 3.  

Section 22442.15 is added to the Business and
2Professions Code
, to read:

3

22442.15.  

(a) An immigration consultant who provides
4immigration reform act services shall establish and deposit into a
5client trust account any funds received from a client prior to
6performing those services for that client.

7(b) For purposes of this section, the following definitions apply:

8(1) “Immigration reform act” means the federal act known as
9the “Border Security, Economic Opportunity, and Immigration
10Modernization Act”begin delete (S.744,end deletebegin insert (S. 744,end insert 2013).

11(2) “Immigration reform act services” means consultation or
12representation services related to immigration and citizenship
13status, benefits, or relief under the immigration reform act.

14(c) The immigration consultant providing immigration reform
15act services for the client may withdraw funds received from that
16client only in compliance with either of the following:

17(1) After completing one or more of the itemized services
18described in paragraph (1) of subdivision (b) of Section 22442,
19and only in the amount identified as the cost of that service or
20those services pursuant to paragraph (2) of subdivision (b) of
21Section 22442.

22(2) After completing one or more of the documents listed, and
23only in the amounts listed, pursuant to paragraph (4) of subdivision
24(b) of Section 22442.

25(d) This section shall become operative only upon the enactment
26of the immigration reform act.

27

SEC. 4.  

Section 22442.20 is added to the Business and
28Professions Code
, to read:

29

22442.20.  

(a) It is unlawful for an immigration consultant to
30demand or accept the advance payment of any funds from a person
31for immigration reform act services before the enactment of the
32immigration reform act, as defined in subdivision (b) of Section
3322442.15.

34(b) Any funds received after January 1, 2014, but before the
35enactment of the immigration reform act, as defined in subdivision
36(b) of Section 22442.15, shall be refunded to the client.

37

SEC. 5.  

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

39

22443.1.  

(a) (1) Prior to engaging in the business, or acting
40in the capacity, of an immigration consultant, each person shall
P10   1file with the Secretary of State a bond of one hundred thousand
2dollars ($100,000) executed by a corporate surety admitted to do
3business in this state and conditioned upon compliance with this
4chapter. The total aggregate liability on the bond shall be limited
5to one hundred thousand dollars ($100,000).

6(2) The bond may be terminated pursuant to Section 995.440
7of, and Article 13 (commencing with Section 996.310) of Chapter
82 of Title 14 of Part 2 of, the Code of Civil Procedure.

9(b) The bond required by this section shall be in favor of, and
10payable to, the people of the State of California and shall be for
11the benefit of any person damaged by any fraud, misstatement,
12misrepresentation, unlawful act or omission, or failure to provide
13the services of the immigration consultant or the agents,
14representatives, or employees of the immigration consultant, while
15acting within the scope of that employment or agency.

16(c) An immigration consultant who is required to file a surety
17bond with the Secretary of State shall also file a disclosure form
18with the Secretary of State that contains all of the following
19information:

20(1) The immigration consultant’s name, date of birth, residence
21address, business address, residence telephone number, and
22business telephone number.

23(2) The name and address of the immigration consultant’s agent
24for service of process if one is required to be or has been appointed.

25(3) Whether the immigration consultant has ever been convicted
26of a violation of this chapter or of Section 6126.

27(4) Whether the immigration consultant has ever been arrested
28or convicted of a crime.

29(5) If applicable, the name, business address, business telephone
30number, and agent for service of process of the corporation or
31partnership employing the immigration consultant.

32(d) An immigration consultant shall notify the Secretary of
33State’s office in writing within 30 days when the surety bond
34required by this section is renewed, and of any change of name,
35address, telephone number, or agent for service of process.

36(e) The Secretary of State shall post information on its Internet
37Web site demonstrating that an immigration consultant is in
38compliance with the bond required by this section and has
39satisfactorily passed the background check required under Section
4022441.1, and shall also post a copy of the immigration consultant’s
P11   1photograph. The Secretary of State shall ensure that the information
2is current and shall update the information at least every 30 days.
3The Secretary of State shall only post this information and
4photograph on its Internet Web site if the person has filed and
5maintained the bond, filed the disclosure form and photograph
6required to be filed with the Secretary of State, and passed the
7background check required by Section 22441.1.

8(f) The Secretary of State shall develop the disclosure form
9required to file a bond under this section and make it available to
10any immigration consultant filing a bond pursuant to this section.

11(g) An immigration consultant shall submit all of the following
12with the disclosure form:

13(1) A copy of valid and current photo identification to determine
14the immigration consultant’s identity, such as a California driver’s
15license or identification card, passport, or other identification
16acceptable to the Secretary of State.

17(2) A photograph of himself or herself with the dimensions and
18in the style that would be acceptable to the U.S. Department of
19State for obtaining a United States passport, as instructed by the
20Secretary of State. An immigration consultant bonded on or before
21December 31, 2006, shall submit the photograph on or before July
221, 2007.

23(h) The Secretary of State shall charge and collect a filing fee
24to cover the cost of filing the bond.

25(i) The Secretary of State shall enforce the provisions of this
26chapter that govern the filing and maintenance of bonds.

27(j) This section does not apply to employees of nonprofit,
28tax-exempt corporations who help clients complete application
29forms in an immigration matter free of charge or for a fee, including
30reasonable costs, consistent with that authorized by the Board of
31Immigration Appeals under Section 292.2 of Title 8 of the Code
32of Federal Regulations.

33

SEC. 6.  

No reimbursement is required by this act pursuant to
34Section 6 of Article XIII B of the California Constitution because
35the only costs that may be incurred by a local agency or school
36district will be incurred because this act creates a new crime or
37infraction, eliminates a crime or infraction, or changes the penalty
38for a crime or infraction, within the meaning of Section 17556 of
39the Government Code, or changes the definition of a crime within
P12   1the meaning of Section 6 of Article XIII B of the California
2Constitution.

3begin insert

begin insertSEC. 7.end insert  

end insert
begin insert

This act is an urgency statute necessary for the
4immediate preservation of the public peace, health, or safety within
5the meaning of Article IV of the Constitution and shall go into
6immediate effect. The facts constituting the necessity are:

end insert
begin insert

7In order to implement measures as quickly as possible and as
8necessary to prevent fraud on immigrants by attorneys and other
9persons by making promises of benefits and relief under pending
10and proposed federal immigration reform acts before their
11enactment, it is necessary that this act take effect immediately.

end insert


O

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