Enacts provisions regulating immigration assistance services; provides civil and criminal penalties therefor; applicable to assistance provided for a fee or other compensation to persons who have, or plan to, come to the US from a foreign country in relation to immigration, citizenship, resident status, eligibility to be employed, or eligibility to receive government services or benefits; includes provisions to be included in any immigrant assistance services contracts.
STATE OF NEW YORK
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S. 3314--B A. 7137--B
2003-2004 Regular Sessions
SENATE - ASSEMBLY
March 24, 2003
___________
IN SENATE -- Introduced by Sen. PADAVAN -- read twice and ordered print-
ed, and when printed to be committed to the Committee on Consumer
Protection -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- recommitted to the
Committee on Consumer Protection in accordance with Senate Rule 6,
sec. 8 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
IN ASSEMBLY -- Introduced by M. of A. McLAUGHLIN, PERALTA, PERRY --
Multi-Sponsored by -- M. of A. ALFANO, McENENY -- read once and
referred to the Committee on Economic Development, Job Creation,
Commerce and Industry -- reported and referred to the Committee on
Codes -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- recommitted to the
Committee on Rules in accordance with Assembly Rule 3, sec. 2 -- Rules
Committee discharged, bill amended, ordered reprinted as amended and
recommitted to the Committee on Rules
AN ACT to amend the general business law, in relation to immigrant
assistance services
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The general business law is amended by adding a new article
2 28-C to read as follows:
3 ARTICLE 28-C
4 IMMIGRANT ASSISTANCE SERVICES
5 Section 460-a. Definitions.
6 460-b. Immigrant assistance service contracts.
7 460-c. Posting of signs.
8 460-d. Notice in advertisements.
9 460-e. Prohibited acts.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04512-05-4
S. 3314--B 2 A. 7137--B
1 460-f. Retention of documents.
2 460-g. Surety requirement.
3 460-h. Enforcement.
4 460-i. Violations.
5 460-j. Other remedies.
6 § 460-a. Definitions. For the purpose of this article the following
7 terms shall have the following meanings:
8 1. "Immigrant assistance service" means providing assistance, for a
9 fee or other compensation, to persons who have, or plan to, come to the
10 United States from a foreign country, or their representatives, in
11 relation to any proceeding, filing or action affecting the non-immi-
12 grant, immigrant or citizenship status of a person which arises under
13 the immigration and nationality law, executive order or presidential
14 proclamation, or which arises under actions or regulations of the United
15 States bureau of citizenship and immigration services, the United States
16 department of labor, or the United States department of state.
17 2. "Provider" means any person, including but not limited to a corpo-
18 ration, partnership, limited liability company, sole proprietorship or
19 natural person, that provides immigrant assistance services, but shall
20 not include (a) any person duly admitted to practice law in this state
21 and any person working directly under the supervision of the person
22 admitted; (b) any not-for-profit tax exempt organization that provides
23 immigrant assistance without a fee or other payment from individuals or
24 at nominal fees as defined by the federal board of immigration appeals,
25 and the employees of such organization when acting within the scope of
26 such employment; (c) any organization recognized by the federal board of
27 immigration appeals that provides services via representatives accred-
28 ited by such board to appear before the bureau of citizenship and immi-
29 gration services and/or executive office for immigration review, that
30 does not charge a fee or charges nominal fees as defined by the board of
31 immigration appeals; or (d) any authorized agency under subdivision ten
32 of section three hundred seventy-one of the social services law and the
33 employees of such organization when acting within the scope of such
34 employment.
35 § 460-b. Immigrant assistance service contracts. No immigrant assist-
36 ance service shall be provided until the customer has executed a written
37 contract with the provider who will provide such services. The contract
38 shall be in a language understood by the customer, either alone or with
39 the assistance of an available interpreter, and, if that language is not
40 English, an English language version of the contract must also be
41 provided. A copy of the contract shall be provided to the customer upon
42 the customer's execution of the contract. The customer has the right to
43 cancel the contract within three business days after his or her
44 execution of the contract, without fee or penalty. The right to cancel
45 the contract within three days without payment of any fee may be waived
46 when services must be provided immediately to avoid a forfeiture of
47 eligibility or other loss of rights or privileges, and the customer
48 furnishes the provider with a separate dated and signed statement, by
49 the customer or his or her representative, describing the need for
50 services to be provided within three days and expressly acknowledging
51 and waiving the right to cancel the contract within three days. The
52 contract may be cancelled at any time after execution. If the contract
53 is cancelled after three days, or within three days if the right to
54 cancel without fee has been waived, the provider may retain fees for
55 services rendered, and any additional amounts actually expended on
56 behalf of the customer. All other amounts must be returned to the
S. 3314--B 3 A. 7137--B
1 customer within fifteen days after cancellation. The written contract
2 shall be in plain language, in at least twelve point type and shall
3 include the following:
4 1. The name, address and telephone number of the provider.
5 2. Itemization of all services to be provided to the customer, as well
6 as the fees and costs to be charged to the customer.
7 3. A statement that original documents required to be submitted in
8 connection with an application made to the federal bureau of citizenship
9 and immigration services or for other certifications, benefits or
10 services provided by government may not be retained by the immigrant
11 assistance service provider for any reason, including payment of fees or
12 costs.
13 4. A statement that the provider shall give the customer a copy of
14 each document filed with a governmental entity.
15 5. A statement that the customer is not required to obtain supporting
16 documents through the immigrant assistance service provider, but may
17 obtain such documents himself or herself.
18 6. The statement: "You have three (3) business days to cancel this
19 contract. Notice of cancellation must be in writing, signed by you and
20 mailed by registered or certified United States mail to (specify
21 address). If you cancel this contract within three days, you will get
22 back your documents and any fees that you paid".
23 7. A statement that the immigration services provider has financial
24 surety in effect for the benefit of any customer in the event that the
25 customer is owed a refund, or is damaged by the actions of the provider,
26 together with the name, address and telephone number of the surety.
27 8. The statement: "The individual providing assistance to you under
28 this contract is not an attorney licensed to practice law or accredited
29 by the board of immigration appeals to provide representation to you
30 before the bureau of citizenship and immigration services, the depart-
31 ment of labor, the department of state or any immigration authorities
32 and may not give legal advice or accept fees for legal advice".
33 9. The statement: "The individual providing assistance to you under
34 this contract is prohibited from disclosing any information or filing
35 any forms or documents with immigration or other authorities without
36 your knowledge and consent."
37 10. The statement: "A copy of all forms completed and documents accom-
38 panying the forms shall be kept by the service provider for three years.
39 A copy of the customers file shall be provided to the client on demand
40 and without fee."
41 § 460-c. Posting of signs. Every provider shall post signs, at every
42 location where such provider meets with customers, setting forth infor-
43 mation in English and in every other language in which the person
44 provides or offers to provide immigrant assistance. There shall be a
45 separate sign for each language, and each shall be posted in a location
46 where it will be visible to customers.
47 1. One sign shall be at least eleven inches by seventeen inches, and
48 shall contain the following in not less than sixty point type:
49 "THE INDIVIDUAL PROVIDING ASSISTANCE TO YOU UNDER THIS CONTACT IS NOT
50 AN ATTORNEY LICENSED TO PRACTICE LAW OR ACCREDITED BY THE BOARD OF IMMI-
51 GRATION APPEALS TO PROVIDE REPRESENTATION TO YOU BEFORE THE BUREAU OF
52 CITIZENSHIP AND IMMIGRATION SERVICES, THE DEPARTMENT OF LABOR, THE
53 DEPARTMENT OF STATE OR ANY IMMIGRATION AUTHORITIES AND MAY NOT GIVE
54 LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE".
55 2. A separate sign shall be posed in a location visible to customers
56 in conspicuous size type and which contains the schedule of fees for
S. 3314--B 4 A. 7137--B
1 services offered and the statement: "YOU MAY CANCEL ANY CONTRACT WITHIN
2 3 BUSINESS DAYS AND GET BACK YOUR DOCUMENTS AND ANY MONEY YOU PAID."
3 § 460-d. Notice in advertisements. Every provider who advertises
4 immigrant assistance services, whether by signs, pamphlets, newspapers,
5 or any other written communication shall post or otherwise include with
6 such advertisement a notice in the language in which the advertisement
7 appears. This notice shall be of a conspicuous size and shall state:
8 "THE INDIVIDUAL PROVIDING ASSISTANCE TO YOU IS NOT AN ATTORNEY LICENSED
9 TO PRACTICE LAW OR ACCREDITED BY THE BOARD OF IMMIGRATION APPEALS TO
10 PROVIDE REPRESENTATION TO YOU BEFORE THE BUREAU OF CITIZENSHIP AND IMMI-
11 GRATION SERVICES, THE DEPARTMENT OF LABOR, THE DEPARTMENT OF STATE OR
12 ANY IMMIGRATION AUTHORITIES AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES
13 FOR LEGAL ADVICE".
14 § 460-e. Prohibited acts. No provider shall:
15 1. Give legal advice, or otherwise engage in the practice of law.
16 2. Assume, use or advertise the title of lawyer or attorney at law, or
17 equivalent terms in the English language or any other language, or
18 represent or advertise other titles or credentials, including but not
19 limited to "notary public", "accredited representative of the board of
20 immigration appeals" or "immigration consultant," that could cause a
21 customer to believe that the person possesses special professional
22 skills or is authorized to provide advice on an immigration matter;
23 provided that a notary public licensed by the secretary of state may use
24 the term "notary public."
25 3. State or imply that the person can or will obtain special favors
26 from or has special influence with the bureau of citizenship and immi-
27 gration services or any other governmental entity, or threaten to report
28 the client to immigration or other authorities or undermine in any way
29 the client's immigration status or attempt to secure lawful status.
30 4. Demand or retain any fees or compensation for services not
31 performed, or costs that are not actually incurred.
32 5. Advise, direct or permit a customer to answer questions on a
33 government document, or in a discussion with a government official, in a
34 specific way where the provider knows or has reasonable cause to believe
35 that the answers are false or misleading.
36 6. Disclose any information to, or file any forms or documents with,
37 immigration or other authorities without the knowledge or consent of the
38 customer.
39 7. Fail to provide customers with copies of documents filed with a
40 governmental entity or refuse to return original documents supplied by,
41 prepared on behalf of, or paid for by the customer, upon the request of
42 the customer, or upon termination of the contract. Original documents
43 must be returned promptly upon request and upon cancellation of the
44 contract, even if there is a fee dispute between the immigration assist-
45 ance service provider and the customer.
46 8. Make any misrepresentation or false statement, directly or indi-
47 rectly.
48 9. Make any guarantee or promise to a customer, unless there is a
49 basis in fact for such representation, and the guarantee or promise is
50 in writing.
51 10. Represent that a fee may be charged, or charge a fee for the
52 distribution, provision or submission of an official document or form
53 issued or promulgated by a state or federal governmental entity, or for
54 a referral of the customer to another person or entity that is qualified
55 to provide services or assistance which the immigrant assistance service
56 provider will not provide.
S. 3314--B 5 A. 7137--B
1 § 460-f. Retention of documents. Every provider shall retain copies
2 of all documents prepared or obtained in connection with a customer's
3 request for assistance for a period of three years after a written
4 contract is executed by the provider and the customer, whether or not
5 such contract is subsequently cancelled.
6 § 460-g. Surety requirement. Every provider shall maintain in full
7 force and effect a bond, contract of indemnity, or irrevocable letter of
8 credit, payable to the people of the state of New York, in the principal
9 amount of fifty thousand dollars; provided, however, that every provider
10 that receives in excess of two hundred fifty thousand dollars in total
11 fees and other compensation for providing immigrant assistance service
12 during any twelve-month period shall maintain in full force and effect a
13 bond, contract of indemnity, or irrevocable letter of credit, payable to
14 the people of the state of New York, in the principal amount of twenty
15 percent of such total fees and compensation. Such surety shall be for
16 the benefit of any customer who does not receive a refund of fees from
17 the provider to which he or she is entitled, or is otherwise injured by
18 the provider. The attorney general on behalf of the customer or the
19 customer in his or her own name, may maintain an action against the
20 provider and the surety.
21 § 460-h. Enforcement. Upon any violation of this article, an applica-
22 tion may be made by the attorney general in the name of the people of
23 the state to a court having jurisdiction to issue an injunction, and
24 upon notice to the respondent of not fewer than five days, to enjoin and
25 restrain the continuance of the violation. If it shall appear to the
26 satisfaction of the court or justice that the defendant has, in fact,
27 violated this article, an injunction may be issued by such court or
28 justice, enjoining and restraining any further violation, without
29 requiring proof that any person has, in fact, been injured or damaged
30 thereby. In any such proceeding, the court may make allowances to the
31 attorney general as provided in paragraph six of subdivision (a) of
32 section eighty-three hundred three of the civil practice law and rules,
33 and direct restitution. Whenever the court shall determine that a
34 violation of this article has occurred, the court may impose a civil
35 penalty of not more than seven thousand five hundred dollars for each
36 violation.
37 § 460-i. Violations. Any violation of any provision of this article
38 shall be a class A misdemeanor, and upon conviction the court may order
39 as part of the sentence imposed restitution or reparation to the victim
40 of the crime pursuant to section 60.27 of the penal law.
41 § 460-j. Other remedies. The civil and criminal remedies set forth in
42 this article shall not preclude any individual or entity or government
43 authority from seeking relief under any other statutory or common law
44 right to relief.
45 § 2. This act shall take effect on the first of November next succeed-
46 ing the date on which it shall have become a law.
