BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          AB 60 (Gonzalez)
          Version: March 26, 2015
          Hearing Date:  May 5, 2015
          Fiscal: Yes
          Urgency: Yes
          BCP:rm
                    

                                        SUBJECT
                                           
                                Immigration services

                                      DESCRIPTION  

          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.  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 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, expanded Provisional Waivers of Unlawful Presence, or  
          other future relief, as provided, under federal law.

          This bill would make similar changes with respect to immigration  
          consultants.








          AB 60 (Gonzalez)
          Page 2 of ? 


                                      BACKGROUND  

          Under existing law, attorneys and immigration consultants are  
          prohibited from demanding or accepting advance payment for  
          immigration reform act services before the enactment of an  
          "immigration reform act."  That restriction was enacted by AB  
          1159 (Gonzalez, Chapter 574, Statutes of 2013) to proactively  
          address the fraud that was expected to occur as a result of the  
          passage of the then-pending proposal for reform, the Border  
          Security, Economic Opportunity, and Immigration Modernization  
          Act of 2013. To tailor the bill to the issue raised by the  
          pending reform, AB 1159 generally defined "immigration reform  
          act" as any pending or future act of Congress, including, but  
          not limited to, the Border Security, Economic Opportunity, and  
          Immigration Modernization Act (Sen. No. 744, 113th Cong., 1st  
          Sess. (2013).).  While Sen. No. 744 passed the Senate on June  
          27, 2013, the House of Representatives never acted on the bill.

          Subsequently, on November 20, 2014, President Obama announced a  
          series of executive actions relating to immigration, including  
          the following initiatives:
           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 (U.S.) continuously since January 1,  
            2010, and extending the period of DACA and work authorization  
            from two years to three years.
           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 program,  
            provided they have lived in the U.S. continuously since  
            January 1, 2010, and pass required background checks.
           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.
           Modernizing, improving and clarifying immigrant and  
            nonimmigrant visa programs to grow our economy and create  
            jobs.
           Promoting citizenship education and public awareness for  
            lawful permanent residents and providing an option for  
            naturalization applicants to use credit cards to pay the  
            application fee.  (U.S. Citizenship and Immigration Services,  







          AB 60 (Gonzalez)
          Page 3 of ? 

            Executive Actions on Immigration (Apr. 15, 2015)  
             [as of May 1,  
            2015].)

          As the result of the issuance of a temporary injunction by a  
          federal judge in Texas, the U.S. Citizenship and Immigration  
          Services (USCIS) currently informs the public that:  "Due to  
          [the] order, USCIS will not begin accepting requests for the  
          expansion of DACA on February 18[, 2015,] as originally planned  
          and has suspended implementation of Deferred Action for Parents  
          of Americans and Lawful Permanent Residents.  The court's  
          temporary injunction, issued February 16, does not affect the  
          existing DACA.  Individuals may continue to come forward and  
          request an initial grant of DACA or renewal of DACA under the  
          original guidelines."  

          To update the provisions of AB 1159 and reflect recent events,  
          this bill seeks to apply the protections enacted by that bill to  
          executive orders or actions, as specified, by expanding the  
          definition of what constitutes an "immigration reform act."   
          This bill would make other clarifying changes consistent with  
          the President's executive actions and provide that immigration  
          reform act services do not include services that have a value  
          apart from the preparation of an application pursuant to an  
          immigration reform act.

                                CHANGES TO EXISTING LAW
           
          1.    Existing law  requires all attorneys who practice law in  
            California to be members of the State Bar of California (State  
            Bar) and establishes the State Bar for the purpose of  
            regulating the legal profession.  (Bus. & Prof. Code Sec. 6000  
            et seq.)

             Existing law  provides that it is unlawful for an attorney 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.  Any funds received after the  
            effective date of the section, but, before the enactment of an  
            immigration reform act, must be promptly refunded to the  
            client, as specified.  (Bus. & Prof. Code Sec. 6242(a).)

             Existing law  further provides that:
                 if an attorney providing immigration reform act services  
               accepted funds prior to the effective date of the section,  







          AB 60 (Gonzalez)
          Page 4 of ? 

               and the services provided in connection with payment of  
               those funds were rendered, the attorney shall promptly  
               provide the client with a statement of accounting  
               describing services rendered; and
                 any funds received before the effective date of the  
               section 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.  If the attorney elects to deposit funds in  
               a client trust account, he or she shall provide a specified  
               written notice to the client, in English and the client's  
               native language.  (Bus. & Prof. Code Sec. 6242(b).)

             Existing law  provides that when a contract for legal services  
            is required to be in writing, as specified, an attorney  
            providing immigration reform act services shall provide a  
            written notice informing the client where he or she may report  
            complaints, as specified.  (Bus. & Prof. Code Sec. 6243.)

             Existing law  defines "immigration reform act" as any pending  
            or future act of Congress that is enacted after the effective  
            date, as specified, but before January 1, 2017, including but  
            not limited to the "Border Security, Economic Opportunity, and  
            Immigration Modernization Act" (Sen. No. 744, 2013), as  
            specified.  (Bus. & Prof. Code Sec. 6240.)  Existing law  
            further requires the State Bar to announce and post on its  
            Internet Web site when an immigration reform act has been  
            enacted.  (Id.)  
             
            Existing law  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. (Bus. & Prof. Code Sec. 6240.)  

             This bill  would revise the definition of "immigration reform  
            act" by:  (1) clarifying that it applies to any pending or  
            future act of Congress that is enacted after October 5, 2013;  
            and (2) expanding the definition 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 into the United  
            States without inspection or who did not depart after the  
            expiration of a nonimmigrant visa to attain lawful status  







          AB 60 (Gonzalez)
          Page 5 of ? 

            under federal law.  The State Bar would be required to  
            announce and post on its Internet Web site when an executive  
            action or order has been issued.

             This bill  would clarify that 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, as  
            specified.

             This bill  would provide that 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: 
                 requests for expanded Deferred Action for Childhood  
               Arrivals (DACA) under an immigration reform act before the  
               date the United States Citizenship and Immigration Services  
               (USCIS) begins accepting those requests; 
                 requests for Deferred Action for Parents of Americans  
               and Lawful Permanent Residents (DAPA) under an immigration  
               reform act, before the date the USCIS begins accepting  
               those requests; 
                 requests for Expanded Provisional Waivers of Unlawful  
               Presence under an immigration reform act, before the  
               issuance and effective date of the new guidelines and  
               regulations for those provisional waivers; and 
                 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 lawful status under federal law, before the  
               executive action or order has been implemented and the  
               relief is available.

             This bill would clarify that 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 funds.

          2.    Existing law  , the Immigration Consultants Act (ICA),  
            regulates the activities of immigration consultants by  
            requiring them to pass a background check conducted by the  







          AB 60 (Gonzalez)
          Page 6 of ? 

            Secretary of State (SOS), file a $100,000 bond with the SOS,  
            to comply with specified notice requirements, and to provide  
            clients with written contracts in their native language, as  
            specified.  (Bus. & Prof. Code Sec. 22440 et seq.)

             Existing law  requires an immigration consultant 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, and, provides that 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, as specified.  (Bus. & Prof. Code Sec.  
            22442.5.)

             This bill  would, consistent with the changes described above:   
            (1) update the definition of "immigration reform act" to  
            include the President's executive actions on immigration, or  
            other future actions or orders, as specified; and (2)  
            additionally prohibit an immigration consultant from demanding  
            or accepting funds in connection with request for expanded  
            DACA, DAPA, or Expanded Provisional Waivers of Unlawful  
            Presence under an immigration reform act, as specified, and,  
            any additional relief under an executive order or action that  
            authorizes an undocumented immigrant to attain lawful status,  
            as specified.

             This bill  would make other clarifying and conforming changes  
            with respect to immigration consultants.
          
                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author:

            AB 60 will create consumer protection measures for people  
            that are seeking legal assistance from immigration attorneys  
            and consultants relating to the President's executive  
            actions announced on November 20, 2014.  As of now, there is  
            no formal application process for either the extended DACA  
            or DAPA program.

            However, unscrupulous attorneys are currently taking  
            advantage of the uncertainty and future of the deferred  
            action programs by continuing to provide legal assistance at  







          AB 60 (Gonzalez)
          Page 7 of ? 

            the expense of vulnerable Californians.

            AB 60 will prohibit immigration attorneys and consultants  
            from performing immigration services directly related to  
            executive actions announced by the President.

          2.   Applying provisions of AB 1159 to executive orders or  
          actions  

          As noted above, the provisions of AB 1159 (Gonzalez, Chapter  
          574, Statutes of 2013), which placed restrictions on attorneys  
          who offer immigration reform act services, are limited by the  
          definition of "immigration reform act services."  Those  
          restrictions, among other things, prohibited attorneys from  
          demanding or accepting the advance payment of any funds from a  
          person for immigration reform act services before the enactment  
          of an "immigration reform act" and required an attorney who  
          provides immigration reform act services to provide a written  
          notice informing the client where he or she may report  
          complaints, provided that the contract for legal services is  
          required to be in writing.  In light of the President's  
          executive actions on immigration announced on November 20, 2014,  
          this bill now seeks to include those executive actions within  
          the definition of "immigration reform act," as well as 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.   
          To ensure that the public is aware of when a qualifying  
          executive action or order has been issued, the State Bar would  
          be required to announce and post that fact on its Internet Web  
          site.

          The California Labor Federation, in support, notes that "[t]he  
          California Legislature, by passing . . . AB 1159 (Gonzalez) last  
          year, has worked to ensure that Californians are protected from  
          immigration services fraud in the event that California passed  
          an Immigration Reform Bill.  However, current law does not  
          protect Californians from fraud as it relates to Presidential  
          executive action.  Further, the United States Citizenship and  
          Immigration Services (USCIS) has yet to finalize a formal  
          process for implementation of the Executive Order.  Despite  
          that, there are ongoing practices by immigration attorneys,  
          consultants, and con artists that prey on families' hopes and  
          uncertainties with the promise of providing relief under a  







          AB 60 (Gonzalez)
          Page 8 of ? 

          federal process that does not even exist yet." The Service  
          Employees International Union (SEIU), in support, asserts that  
          this bill will address the serious concerns that have been  
          raised by law enforcement and the community as it pertains to  
          potential immigration fraud, and, notes that "[t]here 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 via an  
          expedited process despite the fact that the [USCIS] has not even  
          started to process applications."

          It should be noted that, in addition to modifying the definition  
          of immigration reform act, this bill would modify the existing  
          provision that prohibits attorneys from demanding or accepting  
          advance payment of any funds from a person for reform act  
          services before the enactment of an immigration reform act by  
          additionally prohibiting advance fees for:  (1) requests for  
          expanded DACA, or DAPA, under an immigration reform act, before  
          USCIS begins accepting those requests; (2) requests for Expanded  
          Provisional Waivers of Unlawful Presence under an immigration  
          reform act before the issuance and effective date of new  
          guidelines and regulations for those provisional waivers; and  
          (3) any relief offered under an executive order or action that  
          authorizes an undocumented immigrant to attain lawful status, as  
          specified, before the action or order has been implemented and  
          the relief is available.  Staff notes that those categories  
          generally track the scope of the President's executive actions  
          and appear to include future executive actions on immigration.  

          3.   Opposition concerns  

          The Northern California Chapter, Southern California Chapter,  
          San Diego Chapter, and Santa Clara Valley Chapter of the  
          American Immigration Lawyers Association (AILA), in opposition,  
          argue that AB 60 "inappropriately undermines the ability of  
          well-trained attorneys to provide critical assistance to  
          thousands of Californians."  AILA raises various concerns  
          related to the ability to do preparatory work, repayment terms  
          for fees already accepted, and that the bill will cause undue  
          delay and misuses several immigration terms.

          Specifically, AILA notes that this bill is premised on the  







          AB 60 (Gonzalez)
          Page 9 of ? 

          notion that preparatory work is unnecessary until an application  
          process has been officially launched; however, AILA notes that  
          the USCIS Web site states:  "While USCIS is not accepting  
          requests or applications at this time, if you believe you may be  
          eligible for one of the initiatives listed above, you can  
          prepare by gathering documents that establish factors such as  
          your:  Identity; Relationship to a U.S. citizen or lawful  
          permanent resident, if necessary; and Continuous residence in  
          the United States over the last five years or more." (USCIS,  
          Executive Actions on Immigration (Apr. 15, 2015)  
           [as of May 1, 2015].)   
          In addition to that statement, it should also be noted that the  
          USCIS Web site also states:  "Beware of anyone who offers to  
          help you submit an application or a request for any of these  
          actions before they are available.  You could become a victim of  
          an immigration scam."  Furthermore, the author notes that  
          amendments were previously accepted in the Assembly that sought  
          to address the issue of preparatory work by clarifying that  
          "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.  Despite that language, AILA asserts  
          that, similar to AB 1159, a letter should be submitted to the  
          Assembly Journal to "clearly allow [] attorneys to protect our  
          clients by doing background checks and other work to assess  
          eligibility for immigration relief, in order to clearly permit  
          us to effectively represent the interests of our clients and  
          their families."

          AILA further objects to applying the repayment provisions of  
          existing law to any fees already accepted for work under the  
          President's November 20, 2014, executive orders.  Staff notes  
          that, pursuant to AB 1159, attorneys may not accept advance fees  
          for immigration reform act services before the enactment of an  
          immigration reform act.  Similarly, advance fees received before  
          the enactment of AB 1159 for which services were not rendered  
          must either be refunded to the client or deposited in a client  
          trust account.  As a result of expanding the provisions of AB  
          1159 to apply to the November 20, 2014, executive orders, the  
          provision restricting advance fees would now apply to advance  
          fees that have been collected by immigration attorneys in  
          connection with those executive orders.  In explaining their  
          concerns with that expansion, AILA contends that the USCIS has  
          provided consistent and meaningful context for the expanded DACA  
          and DAPA programs, that the framework has allowed experienced  







          AB 60 (Gonzalez)
          Page 10 of ? 

          attorneys to begin critical preparation, and that refunding fees  
          to clients would not afford any added protection to these  
          individuals.  

          Lastly, AILA contends that the proposed starting dates to begin  
          substantive work unduly delays accrual of benefits and puts  
          clients at risk, that attorneys should be permitted to prepare  
          for expanded provisional waivers prior to implementing  
          regulations, and that the bill is overly broad because it  
          misuses several immigration terms.  Notably, much of the  
          concerns raised by AILA appear connected to the ability to do  
          preparatory work and whether the bill's language expressly  
          allowing services that have an "independent value" would provide  
          sufficient flexibility - for example, AILA states "it is unclear  
          whether filing an immigrant visa petition in anticipation of an  
          expanded provisional waiver application would be prohibited." 

          4.   Immigration consultant provisions similarly updated  

          As noted above, AB 1159 added similar prohibitions on advance  
          fees that applied to both attorneys and immigration consultants.  
           Accordingly, this bill would similarly update the definition of  
          "immigration reform act" as it applies to the prohibition on  
                                                                     immigration consultants receiving advance fees for immigration  
          reform act services.  The bill would also make conforming  
          changes to specifically prohibit immigration consultants from  
          accepting advance fees in connection with requests for expanded  
          DACA, DAPA, Expanded Provision Waivers of Unlawful Presence, and  
          any relief offered under any executive action or order  
          authorizing an undocumented immigrant to attain lawful status,  
          before the action or order has been implemented and the relief  
          is available. 


           Support  :  American Federation of State, County and Municipal  
          Employees (AFSCME); Asian Americans Advancing Justice-LA;  
          California Catholic Conference; California Communities United  
          Institute; California Labor Federation, AFL-CIO; Coalition for  
          Humane Immigrant Rights of Los Angeles; Community Coalition;  
          Consumer Attorneys of California; Eric Garcetti, Mayor of the  
          City of Los Angeles; Mike Feuer, Los Angeles City Attorney;  
          Mujeres Unidas y Activas; United Farm Workers; San Francisco  
          Immigrant Rights Commission; Service Employees International  
          Union (SEIU); Vision y Compromiso








          AB 60 (Gonzalez)
          Page 11 of ? 

           Opposition  :  Northern California Chapter, Southern California  
          Chapter, San Diego Chapter, and Santa Clara Valley Chapter of  
          the American Immigration Lawyers Association

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation : AB 1159 (Gonzalez, Chapter 574, Statutes of  
          2013) See Background.

           Prior Vote  :

          Assembly Floor (Ayes 77, Noes 0)
          Assembly Appropriations Committee (Ayes 16, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

                                   **************