Amended in Assembly March 26, 2015

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, Chiu, Chu, Dahle, Cristina Garcia,begin insert Gipson,end insert 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 services, and declaring the urgency thereof, to take effect immediately.

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 been issued. This bill would provide that it is unlawfulbegin insert for an attorneyend insert 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 been issued. This bill would provide that it is unlawfulbegin insert for an immigration consultantend insert 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.

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

Vote: 23. 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) (1) “Immigration reform act services” means services
21offered in connection with an immigration reform act that are
P4    1begin delete necessary in the preparation ofend deletebegin insert for the purpose of preparingend insert an
2application and other related initial processes in order for an
3undocumented immigrant, who either entered the United States
4without inspection or who did not depart after the expiration of a
5nonimmigrant visa, to attain a lawful status under an immigration
6reform act.

7(2) Immigration reform act services do not includebegin delete legalend delete services
8that have an independent value apart from the preparation ofbegin insert an
9application pursuant toend insert
an immigration reform act and other related
10initial processes, such as assisting a client in preventing removal
11from the United Statesbegin insert and achieving postconviction relief from
12prior criminal convictionsend insert
.

13

SEC. 2.  

Section 6242 of the Business and Professions Code is
14amended to read:

15

6242.  

(a) It is unlawful for an attorney to demand or accept
16the advance payment of any funds from a person for immigration
17reform act services in connection with any of the following:

18(1) An immigration reform act as defined in paragraph (1) of
19subdivision (a) of Section 6240, before the enactment of that act.

20(2) (A) Requests for expanded Deferred Action for Childhood
21Arrivals (DACA) under an immigration reform act as defined in
22paragraph (2) of subdivision (a) of Section 6240, before the date
23the United States Citizenship and Immigration Services begins
24accepting those requests.

25(B) Requests for Deferred Action for Parents of Americans and
26Lawful Permanent Residents (DAPA) under an immigration reform
27act as defined in paragraph (2) of subdivision (a) of Section 6240,
28before the date the United States Citizenship and Immigration
29Services begins accepting those requests.

30(C) begin insertRequests for end insertExpanded Provisional Waivers of Unlawful
31Presence under an immigration reform act as defined in paragraph
32(2) of subdivision (a) of Section 6240, before the issuance and
33effective date of new guidelines and regulations for those
34provisional waivers.

35(D) Any relief offered under any executive action announced
36or executive order issued, on or after the effective date of the act
37adding this subparagraph, that authorizes an undocumented
38immigrant who either entered the United States without inspection
39or who did not depart after the expiration of a nonimmigrant visa
P5    1to attain a lawful status under federal law, before the executive
2action or order has been implemented and the relief is available.

3(b) Any advance payment of funds for immigration reform act
4services that was received after October 5, 2013, but before the
5enactment or implementation of the immigration reform act for
6which the services were sought, shall be refunded to the client
7promptly, but no later than 30 days after the receipt of the funds.

8(c) (1) If an attorney providing immigration reform act services
9accepted funds for immigration reform act services prior to the
10effective date of this amendment to this section, and the services
11to be performed in connection with payment of those funds were
12rendered, the attorney shall promptly, but no later than 30 days
13after the effective date of this amendment to this section, provide
14the client with a statement of accounting describing the services
15rendered.

16(2) (A) Any funds received before the effective date of this
17amendment to this section for which immigration reform act
18services were not rendered prior to the effective date of this
19amendment to this section shall be either refunded to the client or
20deposited in a client trust account.

21(B) If an attorney deposits funds in a client trust account
22pursuant to this paragraph, he or she shall provide a written notice,
23in both English and the client’s native language, informing the
24client of the following:

25(i) That there are no benefits or relief available, and that no
26application for such benefits or relief may be processed, until
27enactment or implementation of an immigration reform act and
28the related necessary federal regulations or forms, and that,
29commencing with the effective date of this amendment to this
30section, it is unlawful for an attorney to demand or accept the
31advance payment of any funds from a person for immigration
32reform act services before the enactment or implementation of an
33immigration reform act.

34(ii) That he or she may report complaints to the Executive Office
35for Immigration Review of the United States Department of Justice,
36to the State Bar of California, or to the bar of the court of any state,
37possession, territory, or commonwealth of the United States or of
38the District of Columbia where the attorney is admitted to practice
39law. The notice shall include the toll-free telephone numbers and
40Internet Web sites of those entities.

P6    1

SEC. 3.  

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

3

22442.5.  

(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 either of the following:

9(A) Any pending or future act of Congress that is enacted after
10October 5, 2013, that authorizes an undocumented immigrant who
11either entered the United States without inspection or who did not
12depart after the expiration of a nonimmigrant visa, to attain a lawful
13status under federal law. The State Bar shall announce and post
14on its Internet Web site when an immigration reform act has been
15enacted.

16(B) The President’s executive actions on immigration announced
17on November 20, 2014, or any future executive action or order
18that authorizes an undocumented immigrant who either entered
19the United States without inspection or who did not depart after
20the expiration of a nonimmigrant visa to attain a lawful status under
21federal law. The State Bar shall announce and post on its Internet
22Web site when an executive action or order has been issued.

23(2) “Immigration reform act services” means services described
24in Section 22441 that are provided in connection with an
25immigration reform act.

26(c) The immigration consultant providing immigration reform
27act services for the client may withdraw funds received from that
28client only in compliance with either of the following:

29(1) After completing one or more of the itemized services
30described in paragraph (1) of subdivision (b) of Section 22442,
31and only in the amount identified as the cost of that service or
32those services pursuant to paragraph (2) of subdivision (b) of
33Section 22442.

34(2) After completing one or more of the documents listed, and
35only in the amounts listed, pursuant to paragraph (4) of subdivision
36(b) of Section 22442.

37

SEC. 4.  

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

39

22442.6.  

(a) It is unlawful for an immigration consultant to
40demand or accept the advance payment of any funds from a person
P7    1for immigration reform act services in connection with any of the
2following:

3(1) An immigration reform act as defined in subparagraph (A)
4of paragraph (1) of subdivision (b) of Section 22442.5, before the
5enactment of that act.

6(2) (A) Requests for expanded Deferred Action for Childhood
7Arrivals (DACA) under an immigration reform act as defined in
8subparagraph (B) of paragraph (1) of subdivision (b) of Section
922442.5, before the date the United States Citizenship and
10Immigration Services begins accepting those requests.

11(B) Requests for Deferred Action for Parents of Americans and
12Lawful Permanent Residents (DAPA) under an immigration reform
13act as defined in subparagraph (B) of paragraph (1) of subdivision
14(b) of Section 22442.5, before the date the United States
15Citizenship and Immigration Services begins accepting those
16requests.

17(C) begin insertRequests for end insertExpanded Provisional Waivers of Unlawful
18Presence under an immigration reform act as defined in
19subparagraph (B) of paragraph (1) of subdivision (b) of Section
2022442.5, before the issuance and effective date of new guidelines
21and regulations for those provisional waivers.

22(D) Any relief offered under any executive action announced
23or executive order issued, on or after the effective date of the act
24adding this subparagraph, that authorizes an undocumented
25immigrant who either entered the United States without inspection
26or who did not depart after the expiration of a nonimmigrant visa
27to attain a lawful status under federal law, before the executive
28action or order has been implemented and the relief is available.

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

34(c) (1) If an immigration consultant providing immigration
35reform act services accepted funds prior to the effective date of
36this amendment to this section, and the services provided in
37connection with payment of those funds were rendered, the
38consultant shall promptly, but no later than 30 days after the
39effective date of this amendment to this section, provide the client
40with a statement of accounting describing the services rendered.

P8    1(2) (A) Any funds received before the effective date of this
2amendment to this section for which immigration reform act
3services were not rendered prior to the effective date of this
4amendment to this section shall either be refunded to the client or
5shall be deposited in a client trust account pursuant to Section
622442.5.

7(B) If an immigration consultant deposits funds in a client trust
8account pursuant to this paragraph, he or she shall comply with
9all applicable provisions of this chapter, including Section 22442,
10and shall provide to the client a written notice, in both English and
11in the client’s native language, that there are no benefits or relief
12available, that no application for such benefits or relief may be
13processed until enactment or implementation of an immigration
14reform act and the related necessary federal regulations and forms,
15and that commencing with the effective date of this amendment
16to this section, it is unlawful for an immigration consultant to
17demand or accept the advance payment of any funds from a person
18for immigration reform act services before the enactment or
19implementation of an immigration reform act.

20(d) (1) In addition to the remedies and penalties prescribed in
21this chapter, a person who violates this section shall be subject to
22a civil penalty not to exceed one thousand dollars ($1,000) per day
23for each violation, to be assessed and collected in a civil action
24brought by any person injured by the violation or in a civil action
25brought in the name of the people of the State of California by the
26Attorney General, a district attorney, or a city attorney.

27(2) In assessing the amount of the civil penalty, the court may
28consider relevant circumstances presented by the parties to the
29case, including, but not limited to, the following:

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

31(B) The number of violations.

32(C) The length of time over which the misconduct occurred,
33and the persistence of the misconduct.

34(D) The willfulness of the misconduct.

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

36(3) If the Attorney General brings the action, one-half of the
37civil penalty collected shall be paid to the treasurer of the county
38in which the judgment was entered, and one-half to the General
39Fund. If a district attorney brings the action, the civil penalty
40collected shall be paid to the treasurer of the county in which the
P9    1 judgment was entered. If a city attorney brings the action, one-half
2of the civil penalty collected shall be paid to the treasurer of the
3city in which the judgment was entered, and one-half to the
4treasurer of the county in which the judgment was entered.

5(4) The court shall grant a prevailing plaintiff reasonable
6attorneys’ fees and costs.

7

SEC. 5.  

No reimbursement is required by this act pursuant to
8Section 6 of Article XIII B of the California Constitution because
9the only costs that may be incurred by a local agency or school
10district will be incurred because this act creates a new crime or
11infraction, eliminates a crime or infraction, or changes the penalty
12for a crime or infraction, within the meaning of Section 17556 of
13the Government Code, or changes the definition of a crime within
14the meaning of Section 6 of Article XIII B of the California
15Constitution.

16

SEC. 6.  

This act is an urgency statute necessary for the
17immediate preservation of the public peace, health, or safety within
18the meaning of Article IV of the Constitution and shall go into
19immediate effect. The facts constituting the necessity are:

20In order to implement measures as quickly as possible and as
21necessary to prevent fraud on immigrants by attorneys and other
22persons by making promises of benefits and relief under pending
23and proposed federal immigration reform acts before their
24enactment or before their relief and remedies become available, it
25is necessary that this act take effect immediately.



O

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