BILL NUMBER: AB 60 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 22, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
AMENDED IN ASSEMBLY MARCH 19, 2015
AMENDED IN ASSEMBLY MARCH 9, 2015
INTRODUCED BY Assembly Member Gonzalez
(Principal coauthor: Senator De León)
(Coauthors: Assembly Members Alejo, Baker, Chávez, Chiu, Chu,
Dahle, Cristina Garcia, Gipson, Lackey, Mathis,
and Weber)
( Coauthor: Senator Hall
)
DECEMBER 10, 2014
An act to amend Sections 6240, 6242, 22442.5, and 22442.6 of the
Business and Professions Code, relating to immigration services, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 60, as amended, Gonzalez. Immigration services.
Existing law, the State Bar Act, provides for the licensure and
regulation of attorneys by the State Bar of California, a public
corporation. 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. Existing law requires the State Bar to provide specified
information relating to immigration reform act services on its
Internet Web site.
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
inspection, who did not depart after the expiration of a
nonimmigrant visa, or who stayed beyond an approved period,
to attain a lawful status under federal law.
law or to otherwise remain in the country. This bill
would require the State Bar to announce and post on its Internet Web
site when an executive action or order described above has been
issued. 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
also provide that an advance payment of funds for immigration reform
act services may be placed into a client trust account, as specified.
Existing law provides for the regulation of a person engaged in
the business or acting in the capacity of an immigration consultant,
and provides that a violation of these provisions is a crime.
Existing law requires an immigration consultant to establish a client
trust account and to deposit in this account any funds received from
the client prior to performing immigration reform act services, as
defined, for that client. Existing law prohibits an immigration
consultant 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. Existing law prescribes
civil penalties, not to exceed $1,000 per day for each violation,
for immigration consultants who violate these provisions.
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 require the State Bar to announce and post on its
Internet Web site when an executive action or order described above
has been issued. This bill would provide that it is unlawful for an
immigration consultant 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.
Because a violation of these provisions by an immigration
consultant would be a crime, this bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6240 of the Business and Professions Code is
amended to read:
6240. For purposes of this article, the following definitions
apply:
(a) "Immigration reform act" means either of the following:
(1) Any pending or future act of Congress that is enacted after
October 5, 2013, that authorizes an undocumented immigrant who
either entered the United States without
inspection or 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. law or to otherwise remain in
the country. The State Bar shall announce and post on its
Internet Web site when an immigration reform act has been enacted.
(2) 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
inspection, who did not depart after the expiration of a
nonimmigrant visa visa, or who stayed beyond
an approved period pursuant to a visa, to attain a lawful
status under federal law. law or to
otherwise remain in the country. The State Bar shall announce
and post on its Internet Web site when an executive action or order
has been issued.
(b) (1) "Immigration reform act services" means services offered
in connection with an immigration reform act that are
exclusively 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 inspection, who
did not depart after the expiration of a nonimmigrant visa, or
who stayed beyond an approved period pursuant to a visa, to
attain a lawful status under an immigration reform act.
federal law or to otherwise remain in the country.
(2) 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, such as including, but not
limited to, assisting a client in preventing removal from the
United States States, preventing any other
adverse action related to the ability to remain in the United States,
including pending legal action, and achieving postconviction
relief from prior criminal convictions.
SEC. 2. Section 6242 of the Business and Professions Code is
amended to read:
6242. (a) 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:
(1) An immigration reform act as defined in paragraph (1) of
subdivision (a) of Section 6240, before the enactment of that
act. act, 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.
(2) (A) Requests for expanded Deferred Action for Childhood
Arrivals (DACA) under an immigration reform act as defined in
paragraph (2) of subdivision (a) of Section 6240, 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) under an immigration reform act as
defined in paragraph (2) of subdivision (a) of Section 6240, before
the date the United States Citizenship and Immigration Services
begins accepting those requests.
(C) Requests for Expanded Provisional Waivers of Unlawful Presence
under an immigration reform act as defined in paragraph (2) of
subdivision (a) of Section 6240, before the issuance and effective
date of new guidelines and regulations for those provisional waivers.
(D)
(C) Any relief offered under any executive action
announced or executive order issued, on or after the effective date
of the act adding this subparagraph, 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.
(b) 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.
funds or placed into a client trust account, which
must be returned or utilized under the provisions of the act amending
this subdivision no later than January 20, 2017.
(c) (1) If an attorney providing immigration reform act services
accepted funds for immigration reform act services prior to the
effective date of this amendment to this section, and the services to
be performed in connection with payment of those funds were
rendered, the attorney shall promptly, but no later than 30 days
after the effective date of this amendment to this section, provide
the client with a statement of accounting describing the services
rendered.
(2) (A) Any funds received before the effective date of this
amendment to this section for which immigration reform act services
were not rendered prior to the effective date of this amendment to
this section shall be either refunded to the client or deposited in a
client trust account.
(B) If an attorney deposits funds in a client trust account
pursuant to this paragraph, he or she shall provide a written notice,
in both English and the client's native language, informing the
client of the following:
(i) That there are no benefits or relief available, and that no
application for such benefits or relief may be processed, until
enactment or implementation of an immigration reform act and the
related necessary federal regulations or forms, and that, commencing
with the effective date of this amendment to this section, it is
unlawful for an attorney to demand or accept the advance payment of
any funds from a person for immigration reform act services before
the enactment or implementation of an immigration reform act.
(ii) That he or she may report complaints to the Executive Office
for Immigration Review of the United States Department of Justice, to
the State Bar of California, or to the bar of the court of any
state, possession, territory, or commonwealth of the United States or
of the District of Columbia where the attorney is admitted to
practice law. The notice shall include the toll-free telephone
numbers and Internet Web sites of those entities.
SEC. 3. Section 22442.5 of the Business and Professions Code is
amended to read:
22442.5. (a) An immigration consultant who provides immigration
reform act services shall establish and deposit into a client trust
account any funds received from a client prior to performing those
services for that client.
(b) For purposes of this section, the following definitions apply:
(1) "Immigration reform act" means either of the following:
(A) Any pending or future act of Congress that is enacted after
October 5, 2013, 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. The State Bar shall announce and post on
its Internet Web site when an immigration reform act has been
enacted.
(B) 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.
The State Bar shall announce and post on its Internet Web site when
an executive action or order has been issued.
(2) "Immigration reform act services" means services described in
Section 22441 that are provided in connection with an immigration
reform act.
(c) The immigration consultant providing immigration reform act
services for the client may withdraw funds received from that client
only in compliance with either of the following:
(1) After completing one or more of the itemized services
described in paragraph (1) of subdivision (b) of Section 22442, and
only in the amount identified as the cost of that service or those
services pursuant to paragraph (2) of subdivision (b) of Section
22442.
(2) After completing one or more of the documents listed, and only
in the amounts listed, pursuant to paragraph (4) of subdivision (b)
of Section 22442.
SEC. 4. Section 22442.6 of the Business and Professions Code is
amended to read:
22442.6. (a) 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 in connection with any of the
following:
(1) An immigration reform act as defined in subparagraph (A) of
paragraph (1) of subdivision (b) of Section 22442.5, before the
enactment of that act.
(2) (A) Requests for expanded Deferred Action for Childhood
Arrivals (DACA) under an immigration reform act as defined in
subparagraph (B) of paragraph (1) of subdivision (b) of Section
22442.5, 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) under an immigration reform act as
defined in subparagraph (B) of paragraph (1) of subdivision (b) of
Section 22442.5, before the date the United States Citizenship and
Immigration Services begins accepting those requests.
(C) Requests for Expanded Provisional Waivers of Unlawful Presence
under an immigration reform act as defined in subparagraph (B) of
paragraph (1) of subdivision (b) of Section 22442.5, before the
issuance and effective date of new guidelines and regulations for
those provisional waivers.
(D) Any relief offered under any executive action announced or
executive order issued, on or after the effective date of the act
adding this subparagraph, 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.
(b) 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.
(c) (1) If an immigration consultant providing immigration reform
act services accepted funds prior to the effective date of this
amendment to this section, and the services provided in connection
with payment of those funds were rendered, the consultant shall
promptly, but no later than 30 days after the effective date of this
amendment to this section, provide the client with a statement of
accounting describing the services rendered.
(2) (A) Any funds received before the effective date of this
amendment to this section for which immigration reform act services
were not rendered prior to the effective date of this amendment to
this section shall either be refunded to the client or shall be
deposited in a client trust account pursuant to Section 22442.5.
(B) If an immigration consultant deposits funds in a client trust
account pursuant to this paragraph, he or she shall comply with all
applicable provisions of this chapter, including Section 22442, and
shall provide to the client a written notice, in both English and in
the client's native language, that there are no benefits or relief
available, that no application for such benefits or relief may be
processed until enactment or implementation of an immigration reform
act and the related necessary federal regulations and forms, and that
commencing with the effective date of this amendment to this
section, 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 before the enactment or implementation of an
immigration reform act.
(d) (1) In addition to the remedies and penalties prescribed in
this chapter, a person who violates this section shall be subject to
a civil penalty not to exceed one thousand dollars ($1,000) per day
for each violation, to be assessed and collected in a civil action
brought by any person injured by the violation or in a civil action
brought in the name of the people of the State of California by the
Attorney General, a district attorney, or a city attorney.
(2) In assessing the amount of the civil penalty, the court may
consider relevant circumstances presented by the parties to the case,
including, but not limited to, the following:
(A) The nature and severity of the misconduct.
(B) The number of violations.
(C) The length of time over which the misconduct occurred, and the
persistence of the misconduct.
(D) The willfulness of the misconduct.
(E) The defendant's assets, liabilities, and net worth.
(3) If the Attorney General brings the action, one-half of the
civil penalty collected shall be paid to the treasurer of the county
in which the judgment was entered, and one-half to the General Fund.
If a district attorney brings the action, the civil penalty collected
shall be paid to the treasurer of the county in which the judgment
was entered. If a city attorney brings the action, one-half of the
civil penalty collected shall be paid to the treasurer of the city in
which the judgment was entered, and one-half to the treasurer of the
county in which the judgment was entered.
(4) The court shall grant a prevailing plaintiff reasonable
attorneys' fees and costs.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 6. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to implement measures as quickly as possible and as
necessary to prevent fraud on immigrants by attorneys and other
persons by making promises of benefits and relief under pending and
proposed federal immigration reform acts before their enactment or
before their relief and remedies become available, it is necessary
that this act take effect immediately.