Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 203 (2015GS)

Sponsor

Sen. Escamilla, L.

Final action

Governor Signed 3/26/2015

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• amends the definition provision;
• clarifies the act's application to individuals as immigration consultants;
• clarifies exemptions from the act;
• modifies bonding requirements;
• addresses when a written contract may be cancelled by a client;
• modifies exemptions from contract requirements;
• modifies disclosure requirements, including what notices are to be displayed and what disclosures are to be provided in writing;
• repeals language for providing information to law enforcement with consent of client;
• provides for investigatory powers in the division; and
• makes technical changes.

Every vote on this bill

Bill text

IMMIGRATION CONSULTANTS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Luz Escamilla
House Sponsor: 
 Jeremy A. Peterson
LONG TITLE
General Description:
This bill modifies the Immigration Consultants Registration Act.
Highlighted Provisions:
This bill:
▸ amends the definition provision;
▸ clarifies the act's application to individuals as immigration consultants;
▸ clarifies exemptions from the act;
▸ modifies bonding requirements;
▸ addresses when a written contract may be cancelled by a client;
▸ modifies exemptions from contract requirements;
▸ modifies disclosure requirements, including what notices are to be displayed and
what disclosures are to be provided in writing;
▸ repeals language for providing information to law enforcement with consent of
client;
▸ provides for investigatory powers in the division; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
13-49-102
, as last amended by Laws of Utah 2013, Chapter 124
13-49-201
, as enacted by Laws of Utah 2012, Chapter 375
13-49-202
, as last amended by Laws of Utah 2013, Chapter 124
13-49-204
, as last amended by Laws of Utah 2013, Chapters 124 and 278
13-49-301
, as enacted by Laws of Utah 2012, Chapter 375
13-49-303
, as enacted by Laws of Utah 2012, Chapter 375
13-49-304
, as enacted by Laws of Utah 2012, Chapter 375
13-49-305
, as enacted by Laws of Utah 2012, Chapter 375
13-49-402
, as last amended by Laws of Utah 2013, Chapter 124
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
13-49-102
 is amended to read:
13-49-102.
Definitions.
As used in this chapter:
(1) "Client" means a person who receives services from or enters into an agreement to
receive services from an immigration consultant.
(2) "Compensation" means anything of economic value that is paid, loaned, granted,
given, donated, or transferred to a person for or in consideration of:
(a) services;
(b) personal or real property; or
(c) another thing of value.
(3) "Department" means the Department of Commerce.
(4) "Division" means the Division of Consumer Protection in the department.
(5) "Immigration consultant" means [
a person
] 
an individual
 who provides nonlegal
assistance or advice on an immigration matter including:
(a) completing a document provided by a federal or state agency, but not advising a
person as to the person's answers on the document;
(b) translating a person's answer to a question posed in a document provided by a
federal or state agency;
(c) securing for a person supporting documents, such as a birth certificate, that may be
necessary to complete a document provided by a federal or state agency;
(d) submitting a completed document on a person's behalf and at the person's request to
the United States Citizenship and Immigration Services; or
(e) for valuable consideration, referring a person to a person who could undertake legal
representation activities in an immigration matter.
(6) "Immigration matter" means a proceeding, filing, or action affecting the
immigration or citizenship status of a person that arises under:
(a) immigration and naturalization law;
(b) executive order or presidential proclamation; or
(c) action of the United States Citizenship and Immigration Services, the United States
Department of State, or the United States Department of Labor.
Section 2. Section 
13-49-201
 is amended to read:
13-49-201.
Requirement to be registered as an immigration consultant --
Exemptions.
(1) (a) Except as provided in Subsection (1)(b), [
a person
] 
an individual
 may not
engage in an activity of an immigration consultant for compensation unless the [
person
]
individual
 is registered under this chapter.
(b) [
Subsection (1)(a)
] 
Except for Subsections 
13-49-303
(3) and (4), this chapter
 does
not apply to [
a person
] 
an individual
 authorized:
(i) to practice law in this state; or
(ii) by federal law to represent persons before the Board of Immigration Appeals or the
United States Citizenship and Immigration Services.
(2) An immigration consultant may only offer nonlegal assistance or advice in an
immigration matter.
Section 3. Section 
13-49-202
 is amended to read:
13-49-202.
Application for registration.
(1) To register as an immigration consultant [
a person
] 
an individual
 shall:
(a) submit an annual application in a form prescribed by the division;
(b) pay an annual registration fee determined by the department in accordance with
Section 
63J-1-504
, which includes the costs of the criminal background check required under
Subsection (1)(e);
(c) have good moral character in that the [
applicant
] 
individual
 has not been convicted
of:
(i) a felony; or
(ii) within the last 10 years, a misdemeanor involving theft, fraud, or dishonesty;
(d) submit fingerprint cards in a form acceptable to the division at the time the
application is filed; and
(e) consent to a fingerprint background check 
of the individual
 by the Utah Bureau of
Criminal Identification regarding the application.
(2) The division shall register [
a person
] 
an individual
 who qualifies under this chapter
as an immigration consultant.
Section 4. Section 
13-49-204
 is amended to read:
13-49-204.
Bonds -- Exemption -- Statements dependent on posting bond.
(1) [
Except as provided in Subsection (6), an
] 
An
 immigration consultant shall post a
cash bond or surety bond:
(a) in the amount of $50,000; and
(b) payable to the division for the benefit of any person damaged by a fraud,
misstatement, misrepresentation, unlawful act, omission, or failure to provide services of an
immigration consultant, or an agent, representative, or employee of an immigration consultant.
(2) A bond required under this section shall be:
(a) in a form approved by the [
attorney general
] 
division
; and
(b) conditioned upon the faithful compliance of an immigration consultant with this
chapter and division rules.
(3) An immigration consultant shall keep the bond required under this section in force
for one year after the immigration consultant's registration expires or the immigration
consultant notifies the division in writing that the immigration consultant has ceased all
activities regulated under this chapter.
(4) (a) If a surety bond posted by an immigration consultant under this section is
canceled due to the [
person's
] 
immigration consultant's
 negligence, the division may assess a
$300 reinstatement fee.
(b) No part of a bond posted by an immigration consultant under this section may be
withdrawn:
(i) during the one-year period the registration under this chapter is in effect; or
(ii) while a revocation proceeding is pending against the [
person
] 
immigration
consultant
.
(5) (a) A bond posted under this section by an immigration consultant may be forfeited
if the [
person's
] 
immigration consultant's
 registration under this chapter is revoked.
(b) Notwithstanding Subsection (5)(a), the division may make a claim against a bond
posted by an immigration consultant for money owed the division under this chapter without
the division first revoking the immigration consultant's registration.
[
(6) The requirements of this section do not apply to an employee of a nonprofit,
tax-exempt corporation who assists clients to complete an application document in an
immigration matter, free of charge or for a fee, including reasonable costs, consistent with that
authorized by the Board of Immigration Appeals under 8 C.F.R. Sec. 292.2.
]
[
(7) A person
] 
(6) An individual
 may not disseminate by any means a statement
indicating that the [
person
] 
individual
 is an immigration consultant, engages in the business of
an immigration consultant, or proposes to engage in the business of an immigration consultant,
unless the [
person
] 
individual
 has posted a bond under this section that is maintained
throughout the period covered by the statement[
, such as a listing in a telephone book
].
[
(8)
] 
(7)
 An immigration consultant may not make or authorize the making of an oral
or written reference to the immigration consultant's compliance with the bonding requirements
of this section except as provided in this chapter.
Section 5. Section 
13-49-301
 is amended to read:
13-49-301.
Requirements for written contract -- Prohibited statements.
(1) (a) Before an immigration consultant may provide services to a client, the
immigration consultant shall provide the client with a written contract. The contents of the
written contract shall comply with this section and rules made by the division in accordance
with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(b) A client may [
rescind
] 
cancel
 a written contract [
within 72 hours of
] 
on or before
midnight of the third business day after
 execution of the written contract
, excluding weekends
and state and federal holidays
.
(2) A written contract under this section shall be stated in both English and in the
client's native language.
(3) A written contract under this section shall:
(a) state the purpose for which the immigration consultant has been hired;
(b) state the one or more services to be performed;
(c) state the price for a service to be performed;
(d) include a statement printed in 10-point boldface type that the immigration
consultant is not an attorney and may not perform the legal services that an attorney performs;
(e) with regard to a document to be prepared by the immigration consultant:
(i) list the document to be prepared;
(ii) explain the purpose of the document;
(iii) explain the process to be followed in preparing of the document;
(iv) explain the action to be taken by the immigration consultant;
(v) state the agency or office where each document will be filed; and
(vi) state the approximate processing times according to current published agency
guidelines;
(f) include a provision stating that the person may report complaints relating to an
immigration consultant to the:
(i) division, including a toll-free telephone number and Internet web site; and
(ii) Office of Immigrant Assistance of the United States Department of Justice,
including a toll-free telephone number and Internet [
web site
] 
website
;
(g) include a provision stating that complaints concerning the unauthorized practice of
law may be reported to the Utah State Bar, including a toll-free telephone number and Internet
[
web site
] 
website
; and
(h) 
in accordance with Subsection (1)(b),
 include a provision stating [
that a client
] 
in
bold on the first page of the written contract in both English and in the client's native language
in accordance with Subsection (2): "You
 may [
rescind the
] 
cancel this
 contract [
within 72
hours of signing the contract.
] 
on or before midnight of the third business day after execution
of the written contract."
(4) A written contract may not contain a provision relating to the following:
(a) a guarantee or promise, unless the immigration consultant has some basis in fact for
making the guarantee or promise; or
(b) a statement that the immigration consultant can or will obtain a special favor from
or has special influence with the United States Citizenship and Immigration Services, or any
other governmental agency, employee, or official, that may have a bearing on a client's
immigration matter.
(5) An immigration consultant may not make a statement described in Subsection (4)
orally to a client.
(6) A written contract is void if not written in accordance with this section.
[
(7) This section does not apply to an employee of a nonprofit, tax-exempt corporation
who assists clients to complete application documents in an immigration matter free of charge
or for a fee, including reasonable costs, as authorized by the Board of Immigration Appeals
under 8 C.F.R. Sec. 292.2.
]
Section 6. Section 
13-49-303
 is amended to read:
13-49-303.
Notice to be displayed -- Disclosure to be provided in writing.
(1) An immigration consultant shall conspicuously display in the immigration
consultant's office a notice that shall be at least 12 by 20 inches with boldface type or print with
each character at least one inch in height and width in English and in the native language of the
immigration consultant's clientele, that contains the following information:
(a) the full name, address, and evidence of compliance with any applicable bonding
requirement including the bond number[
, if any
];
(b) a statement that the immigration consultant is not an attorney; 
and
[
(c) the services that the immigration consultant provides and the current and total fee
for each service; and
]
[
(d)
] 
(c)
 the name of each immigration consultant employed at each location.
(2) 
(a)
 Before providing any services, an immigration consultant shall provide a client
with a written disclosure in the native language of the client that includes the following:
[
(a)
] 
(i)
 the immigration consultant's name, address, and telephone number;
[
(b)
] 
(ii)
 the immigration consultant's agent for service of process;
[
(c) the legal name of the employee who consults with the client, if different from the
immigration consultant; and
]
[
(d)
] 
(iii)
 evidence of compliance with any applicable bonding requirement, including
the bond number[
, if any.
]
; and
(iv) a list of the services that the immigration consultant provides and the current and
total fee for each service.
(b) An immigration consultant shall obtain the signature of the client verifying that the
client received the written disclosures described in Subsection (2)(a) before a service is
provided.
(3) (a) Except as provided in Subsections (3)(b) and (3)(c), an immigration consultant
who prints, displays, publishes, distributes, or broadcasts, or who causes to be printed,
displayed, published, distributed, or broadcasted, any advertisement for services as an
immigration consultant, shall include in that advertisement a clear and conspicuous statement
that the immigration consultant is not an attorney.
(b) Subsection (3)(a) does not apply to an immigration consultant who is not licensed
as an attorney in any state or territory of the United States, but is authorized by federal law to
represent persons before the Board of Immigration Appeals or the United States Citizenship
and Immigration Services. A person described in this Subsection (3)(b) shall include in an
advertisement for services as an immigration consultant a clear and conspicuous statement that
the immigration consultant is not an attorney, but is authorized by federal law to represent
persons before the Board of Immigration Appeals or the United States Citizenship and
Immigration Services.
(c) Subsection (3)(a) does not apply to a person who is not an active member of the
Utah State Bar, but is an attorney licensed in another state or territory of the United States and
is admitted to practice before the Board of Immigration Appeals or the United States
Citizenship and Immigration Services. A person described in this Subsection (3)(c) shall
include in any advertisement for immigration services a clear and conspicuous statement that
the person is not an attorney licensed to practice law in this state, but is an attorney licensed in
another state or territory of the United States, and is authorized by federal law to represent
persons before the Board of Immigration Appeals or the United States Citizenship and
Immigration Services.
(4) If an advertisement subject to this section is in a language other than English, the
statement required by Subsection (3) shall be in the same language as the advertisement.
Section 7. Section 
13-49-304
 is amended to read:
13-49-304.
Translations -- Prohibited acts.
(1) For purposes of this section, "literal translation" of a word or phrase from one
language means the translation of a word or phrase without regard to the true meaning of the
word or phrase in the language that is being translated.
(2) An immigration consultant may not, with the intent to mislead, literally translate,
from English into another language, words or titles, including, "notary public," "notary,"
"licensed," "attorney," "lawyer," or any other terms that imply that the [
person
] 
immigration
consultant
 is an attorney, in any document, including an advertisement, stationery, letterhead,
business card, or other comparable written material describing the immigration consultant.
Section 8. Section 
13-49-305
 is amended to read:
13-49-305.
Documents -- Treatment of original documents.
(1) An immigration consultant shall deliver to a client a copy of a document completed
on behalf of the client. An immigration consultant shall include on a document delivered to a
client the name and address of the immigration consultant.
(2) [
(a)
] An immigration consultant shall retain a copy of a document of a client for not
less than three years from the date of the last service to the client.
[
(b) Upon presentation of a written consent signed by a client, an immigration
consultant shall provide a copy of the client file to law enforcement without a warrant or a
subpoena.
]
(3) (a) An immigration consultant shall return to a client all original documents that the
client has provided to the immigration consultant in support of the client's application including
an original birth certificate, rental agreement, utility bill, employment document, a registration
document issued by the Division of Motor Vehicles, or a passport.
(b) An original document that does not need to be submitted to immigration authorities
as an original document shall be returned by the immigration consultant immediately after
making a copy.
Section 9. Section 
13-49-402
 is amended to read:
13-49-402.
Violations -- Actions by division.
[
(1) The division shall investigate and take action under this part for violations of this
chapter.
]
(1) The division may make an investigation the division considers necessary to
determine whether a person is violating, has violated, or is about to violate this chapter or any
rule made or order issued under this chapter. As part of the investigation, the division may:
(a) require a person to file a statement in writing;
(b) administer oaths, subpoena witnesses and compel their attendance, take evidence,
and examine under oath any person in connection with an investigation; and
(c) require the production of any books, papers, documents, merchandise, or other
material relevant to the investigation.
(2) A person who violates this chapter is subject to:
(a) a cease and desist order; and
(b) an administrative fine of not less than $1,000 or more than $5,000 for each separate
violation.
(3) An administrative fine shall be deposited in the Consumer Protection Education
and Training Fund created in Section 
13-2-8
.
(4) (a) A person who intentionally violates this chapter:
(i) is guilty of a class A misdemeanor; and
(ii) may be fined up to $10,000.
(b) A person intentionally violates this part if the violation occurs after the division,
attorney general, or a district or county attorney notifies the person by certified mail that the
person is in violation of this chapter.
Legislative Review Note
 as of 2-12-15 3:26 PM
Office of Legislative Research and General Counsel