BILL ANALYSIS Ó
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)
**************