BILL ANALYSIS                                                                                                                                                                                                    



                                                                        AB 60


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          60 (Gonzalez)


          As Amended  May 22, 2015


          2/3 vote.  Urgency


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          Original Committee Reference:  JUD.




          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  
          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 entered the United  
            States without inspection, who did not depart after the  
            expiration of a nonimmigrant visa, or who stayed beyond an  
            authorized period, to attain a lawful status under federal law  
            or to otherwise remain in the country.  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  








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            for the purpose of preparing an application and other related  
            initial processes in order for an undocumented immigrant, who  
            entered the United States without inspection, who did not depart  
            after the expiration of a nonimmigrant visa, or who stayed  
            beyond an authorized period, to attain a lawful status under  
            federal law or to otherwise remain in the country.  


          3)Clarifies that "immigration reform act services" does 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, including but not  
            limited to, assisting a client in preventing removal from the  
            United States, preventing any other adverse action related to  
            the ability to remain in the United States, including pending  
            legal action, and achieving post-conviction relief from prior  
            criminal convictions.


          4)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)   Pending or future acts of Congress, enacted after October  
               5, 2013, as specified, before the enactment of such acts when  
               the relevant form or application is released or announced and  
               is not subject to any pending legal action, or when the  
               acceptance date of the relevant form or application has been  
               announced, whichever is sooner.


             b)   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.


             c)   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  








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               Citizenship and Immigration Services begins accepting those  
               requests.


             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.


          5)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, or placed into a client trust account, which must be  
            returned or utilized, as specified, no later than January 20,  
            2017.
          6)Contains an urgency clause allowing the provisions of this bill  
            to take effect immediately upon enactment.


          The Senate amendments:  


          1)Revise the definition of "immigration reform act" and  
            "immigration reform act services" to clarify that they apply to  
            undocumented immigrants who may have stayed beyond an authorized  
            period of remaining in the United States.


          2)Clarify that "immigration reform act services" do not include  
            services like preventing other adverse action related to the  
            ability to remain in the United States.


          3)Clarify the timing of the prohibition on advance payment for  
            immigration reform act services arising from prospective  








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            Congressional enactment of legislation.


          4)Delete the prohibition on advance payment for immigration reform  
            act services with respect to requests for Expanded Provisional  
            Waivers of Unlawful Presence.


          5)Clarify that advance payment of funds for immigration reform act  
            services received after October 5, 2013 but before enactment or  
            implementation of the reform act itself shall, if not refunded  
            to the client, be placed into a client trust account which then  
            must be returned or utilized under this act, as specified, no  
            later than January 20, 2017.


          FISCAL EFFECT:  According to the Senate Appropriations Committee,  
          pursuant to Senate Rule 28.8, negligible state costs.


          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 (Gonzalez), Chapter 574, Statutes of  
          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  








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          obtained pursuant to the relevant 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.  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.


          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  








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            they have lived in the United States continuously since January  
            1, 2010, and pass required background checks.
          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,  
          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.


          Under the bill, 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, preventing  
          any other adverse legal action related to the ability to remain in  








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          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  
          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.  
           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  








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          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: 0000521