Amended in Assembly March 19, 2015

Amended in Assembly March 9, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 60


Introduced by Assembly Member Gonzalez

(Principal coauthor: Senator De León)

(Coauthors: Assembly Members Alejo, Baker, Chávez,begin insert Chiu,end insert Chu, Dahle, Cristina Garcia, and Weber)

December 10, 2014


An act to amend Sections 6240, 6242, 22442.5, and 22442.6 of the Business and Professions Code, relating to immigration servicesbegin insert, and declaring the urgency thereof, to take effect immediatelyend insert.

LEGISLATIVE COUNSEL’S DIGEST

AB 60, 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. Existing law prohibits an attorney from demanding or accepting the advance payment of any funds from a person before the enactment of an immigration reform act, as defined, that is enacted after October 5, 2013, and before January 1, 2017, and requires any funds received during a specified time to be refunded to the client promptly, but no later than 30 days after the receipt of any funds, as provided. Existing law requires the State Bar to provide specified information relating to immigration reform act services on its Internet Web site.

This bill would revise the definition of an immigration reform act to include any immigration reform act enacted after October 5, 2013, the President’s executive actions on immigration announced on November 20, 2014, or any future executive action or order that authorizes an undocumented immigrant who either entered the United States without inspection or who did not depart after the expiration of a nonimmigrant visa, to attain a lawful status under federal law. This bill would require the State Bar to announce and post on its Internet Web site when an executive action or order described above has beenbegin delete enactedend deletebegin insert issuedend insert. This bill would provide that it is unlawful to demand or accept the advance payment of any funds for immigration reform act services in connection with requests for expanded Deferred Action for Childhood Arrivals, requests for Deferred Action for Parents of Americans and Lawful Permanent Residents, expanded Provisional Waivers of Unlawful Presence, or other future relief, as provided, under federal law.

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 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. Existing law prohibits an immigration consultant from demanding or accepting the advance payment of any funds from a person before the enactment of an immigration reform act, as defined, that is enacted after October 5, 2013, and before January 1, 2017, and requires any funds received during a specified time to be refunded to the client promptly, but no later than 30 days after the receipt of any funds, as provided. Existing law prescribes civil penalties, not to exceed $1,000 per day for each violation, for immigration consultants who violate these provisions.

This bill would revise the definition of an immigration reform act to include any immigration reform act enacted after October 5, 2013, the President’s executive actions on immigration announced on November 20, 2014, or any future executive action or order that authorizes an undocumented immigrant who either entered the United States without inspection or who did not depart after the expiration of a nonimmigrant visa, to attain a lawful status under federal law. This bill would require the State Bar to announce and post on its Internet Web site when an executive action or order described above has beenbegin delete enactedend deletebegin insert issuedend insert. This bill would provide that it is unlawful to demand or accept the advance payment of any funds for immigration reform act services in connection with requests for expanded Deferred Action for Childhood Arrivals, requests for Deferred Action for Parents of Americans and Lawful Permanent Residents, expanded Provisional Waivers of Unlawful Presence, or other future relief, as provided, under federal law.

Because a violation of these provisions by an immigration consultant would be a crime, this 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.

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.  

Section 6240 of the Business and Professions
2Code
is amended to read:

3

6240.  

For purposes of this article, the following definitions
4apply:

5(a) “Immigration reform act” means either of the following:

6(1) Any pending or future act of Congress that is enacted after
7October 5, 2013, that authorizes an undocumented immigrant who
8either entered the United States without inspection or who did not
9depart after the expiration of a nonimmigrant visa, to attain a lawful
10status under federal law. The State Bar shall announce and post
11on its Internet Web site when an immigration reform act has been
12enacted.

13(2) The President’s executive actions on immigration announced
14 on November 20, 2014, or any future executive action or order
15that authorizes an undocumented immigrant who either entered
16the United States without inspection or who did not depart after
17the expiration of a nonimmigrant visa to attain a lawful status under
18federal law. The State Bar shall announce and post on its Internet
19Web site when an executive action or order has been issued.

20(b) begin insert(1)end insertbegin insertend insert“Immigration reform act services” means services
21offered in connection with an immigration reform act that are
22necessary in the preparation of an application and other related
23initial processes in order for an undocumented immigrant, who
P4    1either entered the United States without inspection or who did not
2depart after the expiration of a nonimmigrant visa, to attain a lawful
3status under an immigration reform act.

begin insert

4(2) Immigration reform act services do not include legal services
5that have an independent value apart from the preparation of an
6immigration reform act and other related initial processes, such
7as assisting a client in preventing removal from the United States.

end insert
8

SEC. 2.  

Section 6242 of the Business and Professions Code is
9amended to read:

10

6242.  

(a) It is unlawful for an attorney to demand or accept
11the advance payment of any funds from a person for immigration
12reform act services in connection with any of the following:

13(1) An immigration reform act as defined in paragraph (1) of
14subdivision (a) of Section 6240, before the enactment of that act.

15(2) (A) Requests for expanded Deferred Action for Childhood
16Arrivals (DACA) under an immigration reform act as defined in
17paragraph (2) of subdivision (a) of Section 6240, before the date
18the United States Citizenship and Immigration Services begins
19accepting those requests.

20(B) Requests for Deferred Action for Parents of Americans and
21Lawful Permanent Residents (DAPA) under an immigration reform
22act as defined in paragraph (2) of subdivision (a) of Section 6240,
23before the date the United States Citizenship and Immigration
24Services begins accepting those requests.

25(C) Expanded Provisional Waivers of Unlawful Presence under
26an immigration reform act as defined in paragraph (2) of
27subdivision (a) of Section 6240, before the issuance and effective
28date of new guidelines and regulations for those provisional
29waivers.

30(D) Any relief offered under any executive action announced
31or executive order issued, on or after the effective date of the act
32adding this subparagraph, that authorizes an undocumented
33immigrant who either entered the United States without inspection
34or who did not depart after the expiration of a nonimmigrant visa
35to attain a lawful status under federal law, before the executive
36action or order has been implemented and the relief is available.

begin delete

37(b) Any funds received after October 5, 2013, but before the
38enactment of an immigration reform act, shall be refunded to the
39client promptly, but no later than 30 days after the receipt of the
40funds.

end delete
begin insert

P5    1(b) Any advance payment of funds for immigration reform act
2services that was received after October 5, 2013, but before the
3enactment or implementation of the immigration reform act for
4which the services were sought, shall be refunded to the client
5promptly, but no later than 30 days after the receipt of the funds.

end insert

6(c) (1) If an attorney providing immigration reform act services
7accepted funds for immigration reform act services prior tobegin delete October
85, 2013,end delete
begin insert the effective date of this amendment to this section,end insert and
9the services to be performed in connection with payment of those
10funds were rendered, the attorney shall promptly, but no later than
1130 days afterbegin delete October 5, 2013,end deletebegin insert the effective date of this amendment
12to this section,end insert
provide the client with a statement of accounting
13describing the services rendered.

14(2) (A) Any funds received beforebegin delete October 5, 2013,end deletebegin insert end insertbegin insertthe effective
15date of this amendment to this sectionend insert
for which immigration
16reform act services were not rendered prior tobegin delete October 5, 2013,end delete
17begin insert the effective date of this amendment to this sectionend insert shall be either
18refunded to the client or deposited in a client trust account.

19(B) If an attorney deposits funds in a client trust account
20pursuant to this paragraph, he or she shall provide a written notice,
21in both English and the client’s native language, informing the
22client of the following:

23(i) That there are no benefits or relief available, and that no
24application for such benefits or relief may be processed, until
25enactmentbegin insert or implementationend insert of an immigration reform act and
26the related necessary federal regulations or forms, and that,
27commencing withbegin delete October 5, 2013,end deletebegin insert the effective date of this
28amendment to this section,end insert
it is unlawful for an attorney to demand
29or accept the advance payment of any funds from a person for
30immigration reform act services before the enactmentbegin insert or
31implementationend insert
of an immigration reform act.

32(ii) That he or she may report complaints to the Executive Office
33for Immigration Review of the United States Department of Justice,
34to the State Bar of California, or to the bar of the court of any state,
35possession, territory, or commonwealth of the United States or of
36the District of Columbia where the attorney is admitted to practice
37law. The notice shall include the toll-free telephone numbers and
38Internet Web sites of those entities.

39

SEC. 3.  

Section 22442.5 of the Business and Professions Code
40 is amended to read:

P6    1

22442.5.  

(a) An immigration consultant who provides
2immigration reform act services shall establish and deposit into a
3client trust account any funds received from a client prior to
4performing those services for that client.

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

6(1) “Immigration reform act” means either of the following:

7(A) Any pending or future act of Congress that is enacted after
8October 5, 2013, that authorizes an undocumented immigrant who
9either entered the United States without inspection or who did not
10depart after the expiration of a nonimmigrant visa, to attain a lawful
11status under federal law. The State Bar shall announce and post
12on its Internet Web site when an immigration reform act has been
13enacted.

14(B) The President’s executive actions on immigration announced
15on November 20, 2014, or any future executive action or order
16that authorizes an undocumented immigrant who either entered
17the United States without inspection or who did not depart after
18the expiration of a nonimmigrant visa to attain a lawful status under
19federal law. The State Bar shall announce and post on its Internet
20Web site when an executive action or order has been issued.

21(2) “Immigration reform act services” means services described
22in Section 22441 that are provided in connection with an
23immigration reform act.

24(c) The immigration consultant providing immigration reform
25act services for the client may withdraw funds received from that
26client only in compliance with either of the following:

27(1) After completing one or more of the itemized services
28described in paragraph (1) of subdivision (b) of Section 22442,
29and only in the amount identified as the cost of that service or
30those services pursuant to paragraph (2) of subdivision (b) of
31Section 22442.

32(2) After completing one or more of the documents listed, and
33only in the amounts listed, pursuant to paragraph (4) of subdivision
34(b) of Section 22442.

35

SEC. 4.  

Section 22442.6 of the Business and Professions Code
36 is amended to read:

37

22442.6.  

(a) It is unlawful for an immigration consultant to
38demand or accept the advance payment of any funds from a person
39for immigration reform act services in connection with any of the
40following:

P7    1(1) An immigration reform act as defined in subparagraph (A)
2of paragraph (1) of subdivision (b) of Section 22442.5, before the
3enactment of that act.

4(2) (A) Requests for expanded Deferred Action for Childhood
5Arrivals (DACA) under an immigration reform act as defined in
6subparagraph (B) of paragraph (1) of subdivision (b) of Section
722442.5, before the date the United States Citizenship and
8Immigration Services begins accepting those requests.

9(B) Requests for Deferred Action for Parents of Americans and
10Lawful Permanent Residents (DAPA) under an immigration reform
11act as defined in subparagraph (B) of paragraph (1) of subdivision
12(b) of Section 22442.5, before the date the United States
13Citizenship and Immigration Services begins accepting those
14requests.

15(C) Expanded Provisional Waivers of Unlawful Presence under
16an immigration reform act as defined in subparagraph (B) of
17paragraph (1) of subdivision (b) of Section 22442.5, before the
18issuance and effective date of new guidelines and regulations for
19those provisional waivers.

20(D) Any relief offered under any executive action announced
21or executive order issued, on or after the effective date of the act
22adding this subparagraph, that authorizes an undocumented
23immigrant who either entered the United States without inspection
24or who did not depart after the expiration of a nonimmigrant visa
25to attain a lawful status under federal law, before the executive
26action or order has been implemented and the relief is available.

begin delete

27(b) Any funds received after October 5, 2013, but before the
28enactment of an immigration reform act, as defined in subdivision
29(b) of Section 22442.5, shall be refunded to the client promptly,
30but no later than 30 days after receipt of any funds.

end delete
begin insert

31(b) Any advance payment of funds for immigration reform act
32services that was received after October 5, 2013, but before the
33enactment or implementation of the immigration reform act for
34which the services were sought, shall be refunded to the client
35promptly, but no later than 30 days after the receipt of the funds.

end insert

36(c) (1) If an immigration consultant providing immigration
37reform act services accepted funds prior tobegin delete October 5, 2013,end deletebegin insert end insertbegin insertthe
38effective date of this amendment to this section,end insert
and the services
39provided in connection with payment of those funds were rendered,
40the consultant shall promptly, but no later than 30 days after
P8    1begin delete October 5, 2013,end deletebegin insert end insertbegin insertthe effective date of this amendment to this
2section,end insert
provide the client with a statement of accounting describing
3the services rendered.

4(2) (A) Any funds received before begin delete October 5, 2013,end delete begin insert end insertbegin insertthe effective
5date of this amendment to this sectionend insert
for which immigration
6reform act services were not rendered prior tobegin delete October 5, 2013,end deletebegin insert end insert
7begin insertthe effective date of this amendment to this sectionend insert shall either be
8refunded to the client or shall be deposited in a client trust account
9pursuant to Section 22442.5.

10(B) If an immigration consultant deposits funds in a client trust
11account pursuant to this paragraph, he or she shall comply with
12all applicable provisions of this chapter, including Section 22442,
13and shall provide to the client a written notice, in both English and
14in the client’s native language, that there are no benefits or relief
15available, that no application for such benefits or relief may be
16processed until enactmentbegin insert or implementationend insert of an immigration
17reform act and the related necessary federal regulations and forms,
18and that commencing withbegin delete October 5, 2013,end deletebegin insert end insertbegin insertthe effective date of
19this amendment to this section,end insert
it is unlawful for an immigration
20consultant to demand or accept the advance payment of any funds
21from a person for immigration reform act services before the
22enactmentbegin insert or implementationend insert of an immigration reform act.

23(d) (1) In addition to the remedies and penalties prescribed in
24this chapter, a person who violates this section shall be subject to
25a civil penalty not to exceed one thousand dollars ($1,000) per day
26for each violation, to be assessed and collected in a civil action
27brought by any person injured by the violation or in a civil action
28brought in the name of the people of the State of California by the
29Attorney General, a district attorney, or a city attorney.

30(2) In assessing the amount of the civil penalty, the court may
31consider relevant circumstances presented by the parties to the
32case, including, but not limited to, the following:

33(A) The nature and severity of the misconduct.

34(B) The number of violations.

35(C) The length of time over which the misconduct occurred,
36and the persistence of the misconduct.

37(D) The willfulness of the misconduct.

38(E) The defendant’s assets, liabilities, and net worth.

39(3) If the Attorney General brings the action, one-half of the
40civil penalty collected shall be paid to the treasurer of the county
P9    1in which the judgment was entered, and one-half to the General
2Fund. If a district attorney brings the action, the civil penalty
3collected shall be paid to the treasurer of the county in which the
4 judgment was entered. If a city attorney brings the action, one-half
5of the civil penalty collected shall be paid to the treasurer of the
6city in which the judgment was entered, and one-half to the
7treasurer of the county in which the judgment was entered.

8(4) The court shall grant a prevailing plaintiff reasonable
9attorneys’ fees and costs.

10

SEC. 5.  

No reimbursement is required by this act pursuant to
11Section 6 of Article XIII B of the California Constitution because
12the only costs that may be incurred by a local agency or school
13district will be incurred because this act creates a new crime or
14infraction, eliminates a crime or infraction, or changes the penalty
15for a crime or infraction, within the meaning of Section 17556 of
16the Government Code, or changes the definition of a crime within
17the meaning of Section 6 of Article XIII B of the California
18Constitution.

19begin insert

begin insertSEC. 6.end insert  

end insert
begin insert

This act is an urgency statute necessary for the
20immediate preservation of the public peace, health, or safety within
21the meaning of Article IV of the Constitution and shall go into
22immediate effect. The facts constituting the necessity are:

end insert
begin insert

23In order to implement measures as quickly as possible and as
24necessary to prevent fraud on immigrants by attorneys and other
25persons by making promises of benefits and relief under pending
26and proposed federal immigration reform acts before their
27enactment or before their relief and remedies become available,
28it is necessary that this act take effect immediately.

end insert


O

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