Amended in Senate May 22, 2015

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 Bill No. 60

Introduced by Assembly Member Gonzalez

(Principal coauthor: Senator De León)

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

begin insert

(Coauthor: Senator Hall)

end insert

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 begin delete either end delete entered the United States without begin delete inspection or end delete begin insert inspection, end insert who did not depart after the expiration of a nonimmigrant visa, begin insert or who stayed beyond an approved period, end insert to attain a lawful status under federal begin delete law. end delete begin insert law or to otherwise remain in the country. end insert 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 unlawful for an attorney 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, begin delete expanded Provisional Waivers of Unlawful Presence, end delete or other future relief, as provided, under federal law. begin insert This bill would also provide that an advance payment of funds for immigration reform act services may be placed into a client trust account, as specified. end insert

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 unlawful for an immigration consultant 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: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

SECTION 1.  

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

6240.  

For purposes of this article, the following definitions
apply:

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

(1) Any pending or future act of Congress that is enacted after
October 5, 2013, that authorizes an undocumented immigrant who
begin delete either end delete entered the United States without begin delete inspection or end delete begin insert inspection, end insert
who did not depart after the expiration of a nonimmigrant visa, begin insert or
who stayed beyond an authorized period, end insert to attain a lawful status
under federal begin delete law. end delete begin insert law or to otherwise remain in the country. end insert The
State Bar shall announce and post on its Internet Web site when
an immigration reform act has been enacted.

(2) 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 begin delete either end delete entered
the United States without begin delete inspection or end delete begin insert inspection, end insert who did not
depart after the expiration of a nonimmigrant begin delete visa end delete begin insert visa, or who
stayed beyond an approved period pursuant to a visa, end insert to attain a
lawful status under federal begin delete law. end delete begin insert law or to otherwise remain in the
country. end insert The State Bar shall announce and post on its Internet Web
site when an executive action or order has been issued.

(b) (1) “Immigration reform act services” means services
offered in connection with an immigration reform act that are
begin insert exclusively end insert for the purpose of preparing an application and other
related initial processes in order for an undocumented immigrant,
who begin delete either end delete entered the United States without begin delete inspection or end delete
begin insert inspection, end insert who did not depart after the expiration of a
nonimmigrant visa, begin insert or who stayed beyond an approved period
pursuant to a visa, end insert to attain a lawful status under begin delete an immigration
reform act. end delete begin insert federal law or to otherwise remain in the country. end insert

(2) Immigration reform act services do not include services that
have an independent value apart from the preparation of an
application pursuant to an immigration reform act and other related
initial processes, begin delete such as end delete begin insert including, but not limited to, end insert assisting a
client in preventing removal from the United begin delete States end delete begin insert States,
preventing any other adverse action related to the ability to remain
in the United States, including pending legal action, end insert and achieving
postconviction relief from prior criminal convictions.

SEC. 2.  

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

6242.  

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

(1) An immigration reform act as defined in paragraph (1) of
subdivision (a) of Section 6240, before the enactment of that begin delete act. end delete
begin insert act, when the relevant form or application is released or announced
and is not subject to any pending legal action, or when the
acceptance date of the relevant form or application has been
announced, whichever is sooner. end insert

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

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

begin delete

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

end delete begin delete

(D)

end delete

begin insert (C) end insert  Any relief offered under any executive action announced
or executive order issued, on or after the effective date of the act
adding this subparagraph, 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, before the executive
action or order has been implemented and the relief is available.

(b) Any advance payment of funds for immigration reform act
services that was received after October 5, 2013, but before the
enactment or implementation of the immigration reform act for
which the services were sought, shall be refunded to the client
promptly, but no later than 30 days after the receipt of the begin delete funds. end delete
begin insert funds or placed into a client trust account, which must be returned
or utilized under the provisions of the act amending this subdivision
no later than January 20, 2017. end insert

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

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

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

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

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

SEC. 3.  

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

22442.5.  

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

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

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

(A) Any pending or future act of Congress that is enacted after
October 5, 2013, 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. The State Bar shall announce and post
on its Internet Web site when an immigration reform act has been
enacted.

(B) 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. The State Bar shall announce and post on its Internet
Web site when an executive action or order has been issued.

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

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

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

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

SEC. 4.  

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

22442.6.  

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

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

(2) (A) Requests for expanded Deferred Action for Childhood
Arrivals (DACA) under an immigration reform act as defined in
subparagraph (B) of paragraph (1) of subdivision (b) of Section
22442.5, before the date the United States Citizenship and
Immigration Services begins accepting those requests.

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

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

(D) Any relief offered under any executive action announced
or executive order issued, on or after the effective date of the act
adding this subparagraph, 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, before the executive
action or order has been implemented and the relief is available.

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

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

(2) (A) Any funds received before the effective date of this
amendment to this section for which immigration reform act
services were not rendered prior to the effective date of this
amendment to this section shall either be refunded to the client or
shall be deposited in a client trust account pursuant to Section
22442.5.

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

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

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

(A) The nature and severity of the misconduct.

(B) The number of violations.

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

(D) The willfulness of the misconduct.

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

(3) If the Attorney General brings the action, one-half of the
civil penalty collected shall be paid to the treasurer of the county
in which the judgment was entered, and one-half to the General
Fund. If a district attorney brings the action, the civil penalty
collected shall be paid to the treasurer of the county in which the
judgment was entered. If a city attorney brings the action, one-half
of the civil penalty collected shall be paid to the treasurer of the
city in which the judgment was entered, and one-half to the
treasurer of the county in which the judgment was entered.

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

SEC. 5.  

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

SEC. 6.  

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

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