BILL ANALYSIS Ó
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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|ASSEMBLY: | 77-0 | (April 13, |SENATE: |37-0 |May 28, 2015 |
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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