BILL ANALYSIS Ó AB 60 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 60 (Gonzalez) As Amended May 22, 2015 2/3 vote. Urgency -------------------------------------------------------------------- |ASSEMBLY: | 77-0 | (April 13, |SENATE: |37-0 |May 28, 2015 | | | |2015) | | | | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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 AB 60 Page 2 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 AB 60 Page 3 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 AB 60 Page 4 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 AB 60 Page 5 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 AB 60 Page 6 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 AB 60 Page 7 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 AB 60 Page 8 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