California Immigration Consultants Act (AB 1753): Protecting Vulnerable Immigrants From Unscrupulous Providers of “Legal Advice”

Abuses of immigrants by unscrupulous “notarios” providing legal advice to desperate immigrants has long been a problem in many regions of the United States, including California.  According to one recent news report, “Growing fear within the undocumented immigrant community has bred opportunity for fraudulent immigration services as more people seeking protection from deportation flock toward immigration consultants posing as lawyers. According to Arnold Jaffe, a Santa Barbara attorney who specializes in immigration law, more than half of his clients report that they had been `ripped off’ by immigration consultants misrepresenting themselves as attorneys.”

To address that concern, the California Legislature is considering Assembly Bill 1753, which would ensure that immigrants and their families receive legal services in high-stakes immigration matters only from individuals who are qualified to provide those services.  It is sponsored by Assembly Member Wendy Carrillo.  The Immigration Consultants Act (ICA) regulates persons who provide immigration assistance and are neither attorneys nor accredited by the federal government. The ICA authorizes immigration consultants to provide mainly clerical assistances and prohibits them from providing legal advice or representing clients in immigration court. Specifically, immigration consultants can: 1) complete forms provided by a Federal or State Agency, but not advise a person as to their answers on those forms; 2) translate a person’s answers to questions posed in those forms; 3) secure for a person supporting documents, such as birth certificates, which may be necessary to complete those forms; and 4) submit completed forms on a person’s behalf and at their request to the United States Citizenship and Immigration Services. 
 
Among other things, the ICA requires immigration consultants to register with the State, pass background checks, post a $100,000 bond, establish client trust accounts, provide mandatory disclosures regarding the consultants’ inability to practice law and execute written contracts before providing services.
 
Although the ICA allows immigration consultants to perform only limited, non-legal tasks, immigration consultants sometimes disregard state law restrictions and dispense legal advice. Since the ICA was enacted in 1986, it has been repeatedly amended to tighten regulations on consultants, who face civil and/or criminal liability for violating the law. Still, many immigration consultants engage in the unauthorized practice of immigration law. Even well-intentioned immigration consultants who go outside the ICA’s limits by providing legal services can cause great harm to immigrants and their families. Immigration law is a complex area. Such complexities can lead to mistakes and wrong legal advice, even if unintended, and leave undocumented immigrants vulnerable to the consequences, which are often irreversible when immigrants are deported and families are torn apart. Immigration consultants may claim to charge less than an attorney, but the risks of deportation and the denial of citizenship or residency involved in hiring an immigration consultant far outweigh any cost savings. Additionally, the State is continuing to increase its funding of free and low-cost immigration legal services
 
The consequences of a mishandled immigration matter have never been more serious. In June of 2018, federal policy was changed in a way that puts immigrants at greater risk of deportation. U.S. Citizenship and Immigration Services (USCIS) officials now have increased discretion to deny immigration applications, petitions or requests. They can also start the deportation process for denied immigration petitions and refer cases to the Immigration and Customs Enforcement (ICE) on criminal or security grounds. This change has effectively turned USCIS from an immigration benefit adjudicator into an enforcement entity, which leaves little room for error in the immigration process. 
  
Federal law authorizes only the following people to represent individuals in immigration matters: (1) attorneys in good standing; (2) law students, provided they are under the supervision of an attorney and do not receive compensation; (3) “reputable individuals,” who are of good moral character, provided they have a preexisting relationship with the client and do not receive compensation; (4) “accredited representatives,” who have been authorized by the Executive Office for Immigration Review (EOIR); and (5) “accredited officials” of the client’s foreign government.
 
Federal law allows unauthorized individuals to assist solely by completing blank spaces on immigration forms, as long as assistance is only: (1) for a nominal fee and (2) by one who does not hold himself/herself out to be qualified in legal matters or immigration procedure. Federally-unauthorized individuals who do anything beyond completing blank spaces (such as helping choose which immigration forms, if any, to fill out), charge more than a nominal fee, or claim to have expertise in immigration matters, are violating federal law.  
  
AB 1753 makes it unlawful for a person, other than a licensed attorney, a paralegal acting under the supervision of an attorney, or a person or organization federally-authorized to represent individuals in immigration matters, to provide immigration-related services for a fee in California. The bill also stablishes clear, simple and accessible procedures for victims and others to report immigration services fraud to state and local consumer protection agencies.