BILL ANALYSIS Ó AB 60 Page 1 Date of Hearing: March 17, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 60 (Gonzalez) - As Amended March 9, 2015 As Proposed to be Amended SUBJECT: IMMIGRATION SERVICES: ATTORNEYS KEY ISSUE: SHOULD IMPORTANT CONSUMER PROTECTIONS, ENACTED LAST YEAR TO PREVENT FRAUD UPON VULNERABLE IMMIGRANT CLIENTS WHO SEEK IMMIGRATION SERVICES IN ANTICIPATION OF PROSPECTIVE CONGRESSIONAL REFORM, ALSO EXTEND TO IMMIGRATION SERVICES OFFERED IN ANTICIPATION OF EXECUTIVE ACTION BY THE PRESIDENT? SYNOPSIS According to the author, this bill is an important consumer protection measure that will protect the vulnerable community seeking assistance under new immigration rules proposed by President Obama in a series of executive actions announced on November 20, 2014 (hereafter "November 20 executive actions"). Like its predecessor, AB 1159 (Ch. 574, Stats. 2013), this bill seeks to protect immigrants who seek relief under prospective immigration reform from being charged fees for certain services before the relief can possibly be obtained. This follow-up legislation is needed, however, because AB 1159 only applied to an immigration reform act that is "enacted" by Congress and signed by the President; thus it does not apply where prospective immigration reform arises through executive action. AB 60 Page 2 The bill closes this unanticipated loophole from AB 1159 by revising the definition of an immigration reform act to also mean an executive action or order on immigration, as specified, including the November 20 executive actions. In light of reported evidence that new scams have surfaced since the recent executive actions were announced, the author seeks to ensure that the protections established by AB 1159 also apply to immigrants who may seek potential relief pursuant to the executive actions by the President. Among the protections that would specifically apply in such cases, this bill would prohibit an attorney or an immigration consultant from demanding, or accepting the advance payment of, any funds for immigration reform act services before the enactment or implementation of an immigration reform act, as defined, and would require any funds received after the effective date of this bill, but before the enactment or implementation of an immigration reform act, to be refunded to the client. The bill would require any funds received before the effective date of the bill for services not yet rendered to be either refunded to the client, or deposited in a client trust account, as specified. The bill is strongly backed by a wide range of supporters, including immigrant advocates, Los Angeles city officials, civil rights organizations, and labor groups. They believe this bill, like its predecessor, will help reduce fraud and provide appropriate enforcement tools to curtail fraudulent behavior. The bill is opposed by a chapter of the American Immigration Lawyers Association (AILA), who contend that the definition of immigration reform services is overly broad and that it unnecessarily ties the hands of immigration attorneys who are trying to assist immigrants. Proposed amendments seek to address this concern by narrowing and clarifying that definition, making technical amendments to clarify the time frame for certain requirements, and adding an urgency clause. SUMMARY: Clarifies that existing protections against fraud related to immigration reform services apply when that immigration reform arises from executive action, in addition to AB 60 Page 3 Congressional action. Specifically, this bill: 1)Revises the definition of an "immigration reform act" to include 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. Further requires the State Bar to announce and post on its Internet Web site when such an executive action or order has been issued. 2)Clarifies that "immigration reform act services" do not include legal services that have an independent value apart from the preparation of an immigration reform act and other related initial processes, such as assisting a client in preventing removal from the United States. 3)Prohibits attorneys and immigration consultants from demanding or accepting advance payment of any funds from a person for immigration reform act services in connection with any of the following: a) Requests for expanded Deferred Action for Childhood Arrivals (DACA) pursuant to an immigration reform act, as defined, 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) pursuant to an immigration reform act, as defined, before the date the United States Citizenship and Immigration Services begins accepting those requests. c) Expanded Provisional Waivers of Unlawful Presence pursuant to an immigration reform act, as defined, before AB 60 Page 4 the issuance and effective date of new guidelines and regulation for those provisional waivers. d) Any relief offered under any executive action announced or executive order issued, on or after the effective date of this bill, 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. 4)Clarifies that 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. 5)Makes technical and clarifying changes to ensure that existing provisions for handling advance payments apply to funds that were received prior to the effective date of the amendments made by this bill, rather than October 5, 2013 (the date that AB 1159 became effective.) 6)Adds an urgency clause to have this bill take effect immediately upon being signed into law. EXISTING LAW: With respect to both attorneys and immigration consultants: 1)Defines "immigration reform act" as any pending or future act of Congress that is enacted after [October 5, 2013] but before January 1, 2017, including but not limited to the "Border AB 60 Page 5 Security, Economic Opportunity, and Immigration Modernization Act" (S. 744, 2013), as specified. Further requires the State Bar to announce and post on its Internet Web site when an immigration reform act has been enacted. (Business and Professions Code Sections 6240(a) and 22442.5(b)(1). All further references are to this code unless otherwise stated.) 2)Defines "immigration reform act services" as services offered in connection with an immigration reform act that are necessary in the preparation of an application and other related initial processes in order for an undocumented immigrant, as specified, to attain lawful status under the immigration reform act. (Sections 6240(b); Section 22442.5(b)(2).) 3)Provides that it is unlawful for an attorney or immigration consultant to demand, or accept advance payment of, any funds from a person for immigration reform act services before the enactment of an immigration reform act. Further provides that any funds received after [October 5, 2013] but before the enactment of an immigration reform act must be promptly refunded to the client, as specified. (Section 6242(a) and (b); Section 22442.6(a) and (b).) 4)Provides that if an attorney or immigration consultant providing immigration reform act services accepted funds prior to the effective date of this section, and the services provided in connection with payment of those funds were rendered, the client shall promptly be provided with a statement of accounting describing services rendered. Further provides that any funds received before [October 5, 2013], for which immigration reform act services were not rendered prior to the effective date, shall be either refunded to the client or shall be deposited in a client trust account. (Section 6242(c); Section 22442.6(c).) With respect to immigration consultants only: 5)Makes it unlawful for any person, for compensation, other than AB 60 Page 6 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, to engage in the business or act in the capacity of an immigration consultant within this state except as provided. (Section 22440.) 6)Prohibits an immigration consultant to literally translate from English into another language, in any document, any words or titles, including "notary public," "notary," "licensed," "attorney," or "lawyer" that imply the person is an attorney, as specified, and provides that a person who violates the translation prohibition is liable for a civil penalty not to exceed $1,000, as specified. (Section 22442.3.) 7)Requires an immigration consultant, as defined, who provides immigration reform act services to establish and deposit into a client trust account any funds received from a client prior to performing those services. Funds may be withdrawn only after certain services or documents have been completed, as specified by the written contract between the consultant and client. (Section 22442.5.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: According to the author: In 2013, AB 1159 (Gonzalez) was signed into law as a safeguard for immigrant families seeking immigration services in anticipation of Congress passing immigration reform. Families were protected from practices that have led to immigration fraud, such as "advance fees," in which a client provides payment to an attorney or consultant for immigration services prior to the enactment of the law by which the services would be executed. The statute does not, however, prevent an attorney AB 60 Page 7 from demanding or accepting the advance payment of immigration services relevant to the President's executive action because of the existing definition of an "immigration reform act." AB 60 aims to extend existing protection against advance fees to immigrant families seeking relief under President Obama's executive action relating to immigration (in order to) close this unexpected loophole under AB 1159. This bill will ensure that Californians do not fall prey to any ongoing immigration services fraud. Like AB 1159, This Bill Seeks to Prevent Immigration Fraud Associated with Services Offered to Obtain Relief Under Prospective Federal Immigration Reform. For several years, the Obama administration and Congressional Democrats and Republicans have been engaged in challenging political discussions over potentially sweeping changes to federal immigration law. While the outcome of that debate in Washington is far from certain, some individuals in California have apparently sought to charge immigrants for various legal and paralegal or quasi-legal services ("immigration reform act services") that cannot appropriately be performed prior to such reform taking place and some kind of relief actually being available. As evidenced by numerous examples of advertisements provided by the author to this Committee, various services in anticipation of prospective but uncertain immigration reform are being targeted to Spanish-speaking immigrants. According to the author and supporters, a large number of people are at risk of exploitation given the potential size of the immigrant pool that may be affected. Undocumented immigrants may be particularly vulnerable to abuse by unscrupulous businesses and individuals because of the risks they face in asserting their rights as consumers and victims of fraud or other wrongdoing. Like its predecessor, AB 1159 (Ch. 574, Stats. 2013), this bill seeks to protect immigrants seeking potential relief under prospective immigration reform from being charged fees for certain services before such relief can possibly be obtained pursuant to the relevant immigration reform act. This bill is specifically needed because AB 1159 was AB 60 Page 8 worded in a way that its protections only apply with respect to an "immigration reform act" that is "enacted," or in other words, the result of legislation passed by Congress and signed into law by the President. In light of the recent immigration executive actions announced by President Obama on November 20, 2014, the author subsequently introduced this legislation to ensure that the same protections established by AB 1159 in 2013 shall apply to protect immigrants who may be targeted by those now offering services to obtain potential relief pursuant to the executive actions set forth by the President. To mitigate the need for continual follow-up legislation every time new federal immigration reform is proposed and corresponding immigration reform services are offered in anticipation, the bill also seeks to apply these protections to future immigration reform efforts, whether they arise from either legislation enacted by Congress, or executive action ordered by the President. Background on Recent Immigration Reform Efforts. On June 27, 2013, the United States Senate passed S. 744, known as the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. Approved by a bipartisan 68-32 vote in the Senate, this historic legislation proposed to make broad changes to federal immigration law. Among other things, the bill would have created a pathway to citizenship for many immigrants who do not now have legal immigration status. These immigrants would have been able to apply for a special registered provisional immigrant (RPI) status if they had been physically present in the U.S. on or before December 31, 2011, and met various other criteria. On July 10, 2013, AB 1159 (which previously had a different author and addressed an unrelated subject) was amended to guard against immigration services fraud upon those seeking potential relief under S.744, should it have ultimately become federal law. AB 1159 was signed by Governor Brown as an urgency measure and its protections took effect on October 5, 2013. However, S. 744 was never passed by the U.S. House of Representatives and AB 60 Page 9 died later in the 113th Congress without reaching the President's desk. During that time, the protections established under AB 1159 were in effect under California law. On November 20, 2014, President Obama announced a series of executive actions on immigration. According to the United States Citizenship and Immigration Services (USCIS), the primary agency responsible for implementing them, these initiatives include: 1)Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. 2)Allowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, in a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, provided they have lived in the United States continuously since January 1, 2010, and pass required background checks. 3)Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens. (See http://www.uscis.gov/immigrationaction ) On December 10, 2014, this bill was introduced to further the objectives of AB 1159 and protect consumers seeking services in connection with the President's executive actions announced three weeks earlier. On February 16, 2015, however, a federal court in Texas issued a preliminary injunction to temporarily prevent the federal government from implementing the DAPA and expanded DACA programs pursuant to the November 20 executive actions executive actions. USCIS had planned to begin accepting applications for the expanded DACA program on February 18, 2015, while the DAPA program was expected to begin taking applications AB 60 Page 10 sometime in May 2015. At the time of this analysis, the Department of Homeland Security was not accepting requests for either DAPA, or the expanded DACA programs, pending an appeal of the case. (See "Federal Court Halts DAPA and Expanded DACA Programs", Center for Migration Studies, 2/17/15, located at http://cmsny.org/federal-court-halts-dapa-and-expanded-daca-progr ams .) Revised Definition of "Immigration Reform Act" and "Immigration Reform Act Services." Under existing law, an "immigration reform act" is defined as an act of Congress that is enacted after October 5, 2013 (the effective date of AB 1159) but before January 1, 2017 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 lawful status under federal law. "Immigration reform act services" are defined as services offered in connection with an immigration reform act that are necessary in the preparation of an application and other related initial processes in order for an undocumented immigrant to attain lawful status under the immigration reform act. In order to extend existing protections to immigration reform established by executive action, this bill redefines "immigration reform act" to explicitly include the President's November 20 executive actions on immigration as well as any future executive action or order that similarly authorizes a pathway to citizenship for undocumented immigrants. In opposition to the bill, the American Immigration Lawyers Association (AILA) contends that the definition of immigration reform act services (which includes the phrase "services offered in connection with an immigration reform act . . . and other related initial processes") is overly broad, particularly when applied to restrict fees for services related to the November 20 executive actions on immigration, as this bill seeks to do. AILA contends that this broad language unnecessarily restricts immigration attorneys from gathering even basic background information to assess a client's potential options (including, e.g. criminal background checks, USCIS client files, past court filings) regardless of whether immigration reform actually occurs. Furthermore, according to AILA, "Refusing to allow AB 60 Page 11 immigration attorneys to do their jobs and obtain the documentation necessary to determine a client's options places immigrants at a huge disadvantage legally and points them in the direction of the very people who take advantage of them - notarios, unlicensed document preparers and immigration consultants." The Committee notes, however, that an acknowledged purpose of the bill is to specifically regulate attorneys who are engaged for the purpose of serving clients regarding an immigration reform act, rather than any lawyer whose services in another type of matter might tangentially or incidentally touch on a client's potential eligibility for legalization or adjustment of immigration status. Such peripheral issues might arise, for example, in the course of representation in a criminal matter, employment dispute, domestic violence case or retaliatory eviction challenge where the purpose of the representation is not immigration status. Moreover, with respect to engagement for the purpose of immigration law, the Committee notes that the definition relates only to services regarding an immigration reform act and would not be implicated in the provision of lawful and appropriate preliminary or preparatory work for clients, such as obtaining records and documentation, for use in applications or filings under any other immigration or other law, or for lawful and appropriate procedures or processes for determining or obtaining legal relief under other immigration or other laws. Nevertheless, to address opponents' concerns that the definition is overly broad, the author proposes to amend the bill to clarify that immigration reform act services do not include legal services that have an independent value apart from the preparation of an immigration reform act and other related initial processes, such as assisting a client in preventing removal from the United States. Restrictions on Advance Fees Before Any Immigration Reform Takes Effect. Under existing law enacted by AB 1159, attorneys and immigration consultants are prohibited from demanding any funds, or from accepting advance payment of any funds, for immigration reform act services prior to the enactment of an immigration reform act. It should be noted that the prohibition is directed AB 60 Page 12 at services for a fee; if no fee is charged, this law is not triggered. Under AB 1159, the reason for this prohibition appears to be plain: before proposed legislation has been signed into law, it is impossible to know who might be eligible and what steps would be needed to submit an application. The prohibition therefore targeted attorneys and immigration consultants who were advertising and collecting fees for highly questionable services in connection with immigration reform that had not been enacted and may never have been enacted. At the time AB 1159 was approved by the Legislature, S. 744 awaited an uncertain fate in the U.S. House of Representatives. The fact that S. 744 was ultimately never enacted into law highlights the value of the kinds of protections that were established by AB 1159 during that interim period when it appeared that immigration reform might soon be enacted. This bill seeks to ensure that restrictions on advance fees established by AB 1159 apply to services offered in connection with prospective immigration reform arising either from legislation enacted by Congress (as is the case under existing law) or from executive action. In response to the November 20 executive actions 20, 2014 executive actions, the bill specifically prohibits advance fees for services related to requests for relief under the expanded DACA program and the DAPA program before the date the USCIS begins accepting those requests, as well as for services related to expanded Provisional Waivers of Unlawful Presence before the issuance and effective date of new guidelines and regulations for those waivers. In addition, for any future executive action or order that similarly authorizes an undocumented immigrant to attain a lawful status, as specified, the bill would prohibit advance fees for such services before the executive action or order has been implemented and the relief is available. In opposition to the bill, AILA contends that restrictions on advance fees for immigration reform services that currently only apply to prospective Congressional reform are less appropriate when imposed on immigration reform services related to the President's November 20 executive actions, as this bill seeks to do. The reason for this is that while it may be impossible to AB 60 Page 13 render services related to prospective Congressional action until the legislation is enacted and the parameters of such reform are known, in the case of the November 20 executive actions, they contend, the parameters of potential relief are already known and able to be acted upon right now, notwithstanding current litigation that led to the February 16, 2015 injunction. The author contends, however, that it is precisely because the potential relief proposed by the executive actions may never be available (i.e. if invalidated by a court) that this bill is necessary to protect vulnerable immigrants from being charged for services to prepare for relief that may never be made available. In order to reflect that the bill is not limited only to legislative immigration reform that is "enacted" by Congress, the author proposes to amend various provisions of the bill to apply to "enactment or implementation" of an immigration reform act to include reform established by executive action or order. Provisions on Handling Advance Fees Collected Before This Bill Takes Effect. AB 1159 became effective on October 5, 2013, immediately upon being signed by Governor Brown. It provides that if fees were collected before AB 1159 was in effect and the services were rendered, the attorney must provide the client with a statement of accounting for those services. For fees that were collected after AB 1159 took effect but before enactment of an immigration reform act, and where the services had not been rendered, the law requires those fees to be refunded or placed in a client trust account, presumably within 30 days of AB 1159 taking effect. If placed in a trust account, the attorney or immigration consultant must provide a specified notice in English and the client's native language. Any advance fees received after the effective date of the bill, but before the enactment of an immigration reform act, must be returned to the client. As proposed to be amended, the bill makes a series of technical amendments to ensure that these provisions for handling advance payments apply to funds that were received prior to the AB 60 Page 14 effective date of the amendments made by this bill, rather than October 5, 2013, the date that AB 1159 became effective. These proposed amendments are intended to ensure that the consumer protections established by AB 1159 and this bill seamlessly apply to fee agreements made since AB 1159 but also those made subsequent to the November 20 executive actions on immigration. Reform of Immigration Consultants Act. The Immigration Consultants Act (ICA) was enacted in 1986 to regulate activities of immigration consultants who perform a variety of services for persons who seek adjustment of their immigrant status at minimal cost. The explosion of immigration applications, a result of the 1986 federal amnesty law revisions, necessitated the regulation of these persons. Existing law imposes various requirements on those who act in the capacity of an immigration consultant. Consultants must pass a background check, provide clients with a written contract in English and the client's native language, conspicuously display a statutory notice with specified information (including that the consultant is not an attorney), and file a $100,000 surety bond with the Secretary of State. Existing law also prohibits consultants from making false or misleading statements, making guarantees or promises unless it is in writing and there is a basis in fact for the promise or guarantee, and making any statement that the consultant can obtain special favors. As described previously, AB 1159 prohibited not only lawyers but immigration consultants from demanding or accepting advance payment of any funds from a person for immigration reform act services before the reform is enacted. It also required consultants who provide immigration reform act services to deposit any funds received into a client trust account and only withdraw funds upon completing an itemized service or document. This bill revises the ICA to require immigration consultants to follow the same restrictions placed upon attorneys with respect to advance fee payments and required practices for depositing or refunding advance fees already collected. The bill revises the definitions of "immigration reform act" and "immigration reform act services" under the ICA to mirror those applied to immigration attorneys. The proposed technical amendments AB 60 Page 15 discussed above with respect to attorneys would also be made to appropriate corresponding sections of the ICA. ARGUMENTS IN SUPPORT: The bill is strongly supported by immigrant advocates, Los Angeles city officials, civil rights organizations, and labor, among others. For example, Asian Americans Advancing Justice (AAAJ) writes in support: There are approximately 1.6 million people in California that could potentially benefit from President Obama's executive action. As a result of the President's announcement, there has been an increase of eligible immigrants seeking immigration related services from attorneys and consultants. These services are being wrongly advertised as promises that they can get their documents via an expedited process, despite the fact that the United States Citizenship and Immigration Services (USCIS) has not even started to release and process applications. This bill will address the serious concerns that have been raised by law enforcement and the community as it pertains to potential immigration fraud. The newly created safeguards will prevent fraud from occurring within vulnerable immigrant communities in California. As an organization that provides immigration services, we have seen community members who have been taken advantage of by unscrupulous attorneys and immigration preparers, and notary services, more commonly known as "notarios". We understand the importance of laws that protect individuals and immigrant families from unscrupulous immigration services. As an official with practical experience in combatting immigration-related scams, Los Angeles City Attorney Mike Feuer writes in support: AB 60 Page 16 In the wake of President Obama's executive action on immigration my office is concerned that immigrants will be targeted and victimized by an increasing number of scams attempting to take advantage of the evolving immigration rules and regulations. In fact, this has become such a concern in Los Angeles that my office has initiated a comprehensive enforcement and education campaign. . . This legislation would close a loophole by applying safeguards and consumer protections to immigrants seeking services under the current executive action (and) is a much needed effort. ARGUMENTS IN OPPOSITION: In addition to the specific concerns cited above, AILA opposes this bill because of the purported negative impact the bill will have upon immigration attorneys and their clients. They state: This bill will further deter future immigration attorneys from entering into this field to begin with, directly reducing the amount of competent immigration attorneys willing and available to help serve this population. The majority of clients in immigrant communities will not be able to find or afford "good attorneys" who are in compliance, increasing the likelihood that those clients seek out less expensive services by notarios or unlicensed and unregistered attorneys. New legislation aimed at licensed attorneys that is so restrictive and overly broad and unnecessarily binds the help we can provide is not the solution to address this area of consumer fraud. The AILA Southern California chapter calls upon the California State Legislature to act responsibly by considering the significant concerns and negative ramifications such an overly broad bill will have on the practice of immigration law and vulnerable consumers in the State of California. AB 60 Page 17 REGISTERED SUPPORT / OPPOSITION: Support Asian Americans Advancing Justice- Los Angeles California Catholic Conference California Communities United Institute California Labor Federation Community Coalition Los Angeles City Attorney Mike Feuer Los Angeles Mayor Eric Garcetti Mujeres Unidas y Activas United Farm Workers (UFW) Over 20 individuals Opposition American Immigration Lawyers Association- Southern California Chapter (AILA) Analysis Prepared by: Anthony Lew/JUD./(916) 319-2334 AB 60 Page 18