BILL ANALYSIS Ó
AB 60
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ASSEMBLY THIRD READING
AB
60 (Gonzalez)
As Amended March 26, 2015
2/3 vote. Urgency
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|Committee |Votes |Ayes |Noes |
|----------------+------+--------------------------+------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Cristina Garcia, | |
| | |Gallagher, Holden, | |
| | |Maienschein, O'Donnell | |
|----------------+------+--------------------------+------------------|
|Appropriations |16-0 |Gomez, Bigelow, Bonilla, | |
| | |Bonta, Calderon, Chang, | |
| | |Daly, | |
| | | | |
| | | | |
| | |Eduardo Garcia, Eggman, | |
| | |Gallagher, Holden, Quirk, | |
| | |Rendon, Wagner, Weber, | |
| | |Wood | |
| | | | |
| | | | |
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SUMMARY: Clarifies that existing protections against fraud
related to immigration reform services apply when that immigration
reform arises from executive action, in addition to congressional
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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)Defines "immigration reform act services" to means services
offered in connection with an immigration reform act that are
for the purpose of preparing an application and other related
initial processes in order for 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 an immigration reform act.
Clarifies that they 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, such as assisting a client in preventing removal from
the United States and achieving postconviction relief from prior
criminal convictions.
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
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requests.
c) Requests for Expanded Provisional Waivers of Unlawful
Presence pursuant to an immigration reform act, as defined,
before 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
(Gonzalez), Chapter 574, Statutes of 2013, became effective.)
6)Contains an urgency clause allowing the provisions of this bill
to take effect immediately upon enactment.
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
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1)Violations by attorneys and immigration consultants of the
underlying statutes amended by this bill are misdemeanors, and
immigration consultants are also subject to civil penalties.
This bill could therefore result in addition non-reimbursable
costs to local governments for prosecution, offset to some
extent by fine revenue. In addition, there could be minor state
and local revenue increases from civil actions brought against
immigration consultants by the Attorney General or local
prosecutors for violations of the bill's provisions.
2)This bill will not result in any additional state costs beyond
the minor one-time costs previously identified to implement AB
1159.
COMMENTS: 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.
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, 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
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immigration reform act. This bill is specifically needed because
AB 1159 was 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 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 Proposed Executive Actions. On November 20, 2014,
President Obama announced a series of executive actions on
immigration (President's November 20th executive actions).
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 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.
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2)Allowing parents of United States citizens and lawful permanent
residents to request deferred action and employment
authorization for three years, in a new 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 United States 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 November 20th executive actions.
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 President's November 20th 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 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-program
s .)
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. In order to extend existing
protections to immigration reform established by executive action,
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this bill redefines "immigration reform act" to explicitly include
the President's November 20th executive actions on immigration as
well as any future executive action or order that similarly
authorizes a pathway to citizenship for undocumented immigrants.
To address concerns that the bill is overly broad and
unnecessarily restricts immigration attorneys from performing
basic tasks to assess a client's potential options, the author
recently amended 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 application pursuant to an
immigration reform act and other related initial processes, such
as assisting a client in preventing removal from the United
States, or achieving postconviction relief from prior criminal
convictions. Importantly, this definition relates only to
services regarding an immigration reform act and should 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 law or other law.
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
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. This bill seeks to
ensure that restrictions on advance fees 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
President's November 20th executive actions, this bill
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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 requests for 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.
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. 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.
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 FN: 0000113
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