Full Text of SB0233 94th General Assembly
SB0233 94TH GENERAL ASSEMBLY
|
|
|
94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006 SB0233
Introduced 2/2/2005, by Sen. Martin A. Sandoval SYNOPSIS AS INTRODUCED: |
|
|
Amends the Consumer Fraud and Deceptive Business Practices Act. Provides that the Attorney General may promulgate rules establishing the maximum fees that may be charged for other immigration assistance services that the Attorney General determines by rule may be appropriately performed. Provides that the maximum fee must be reasonable in light of the costs of providing those services and the degree of professional skill required to provide the services. Deletes a provision requiring the Attorney General to issue rules related to immigration services by January 1, 1995. Effective immediately.
|
| |
|
|
A BILL FOR
|
|
|
|
|
SB0233 |
|
LRB094 05072 RXD 36490 b |
|
| 1 |
| AN ACT concerning business.
| 2 |
| Be it enacted by the People of the State of Illinois,
| 3 |
| represented in the General Assembly:
| 4 |
| Section 5. The Consumer Fraud and Deceptive Business | 5 |
| Practices Act is amended by changing Section 2AA as follows:
| 6 |
| (815 ILCS 505/2AA)
| 7 |
| Sec. 2AA. Immigration services.
| 8 |
| (a) "Immigration matter" means any proceeding, filing, or | 9 |
| action
affecting the nonimmigrant, immigrant or citizenship | 10 |
| status of any person
that arises under immigration and | 11 |
| naturalization law, executive order or
presidential | 12 |
| proclamation of the United States or any foreign country, or
| 13 |
| that arises under action of the United States Citizenship and | 14 |
| Immigration Services, the United States Department of Labor, or | 15 |
| the
United States Department of State.
| 16 |
| "Immigration assistance service" means any information
or | 17 |
| action provided or offered to customers or prospective | 18 |
| customers related to immigration matters, excluding legal | 19 |
| advice, recommending a specific course of legal action, or | 20 |
| providing any other assistance that requires legal analysis, | 21 |
| legal judgment, or interpretation of the law.
| 22 |
| "Compensation" means money, property, services, promise of | 23 |
| payment,
or anything else of value.
| 24 |
| "Employed by" means that a person is on the payroll of the | 25 |
| employer
and the employer deducts from the employee's paycheck | 26 |
| social security and
withholding taxes, or receives | 27 |
| compensation from the employer on a
commission basis or as an | 28 |
| independent contractor.
| 29 |
| "Reasonable costs" means actual costs or, if actual costs | 30 |
| cannot be
calculated, reasonably estimated costs of such things | 31 |
| as photocopying,
telephone calls, document requests, and | 32 |
| filing fees for immigration forms,
and other nominal costs |
|
|
|
SB0233 |
- 2 - |
LRB094 05072 RXD 36490 b |
|
| 1 |
| incidental to assistance
in an immigration matter.
| 2 |
| (a-1) The General Assembly finds and declares that private | 3 |
| individuals who
assist persons with immigration matters have a | 4 |
| significant impact on the
ability of their clients to reside | 5 |
| and work within the United States and to
establish and maintain | 6 |
| stable families and business relationships. The General
| 7 |
| Assembly further finds that that assistance and its impact also | 8 |
| have a
significant effect on the cultural, social, and economic | 9 |
| life of the State of
Illinois and thereby substantially affect | 10 |
| the public interest. It is the
intent of the General Assembly | 11 |
| to establish rules of practice and conduct for
those | 12 |
| individuals to promote honesty and fair dealing with residents | 13 |
| and to
preserve public confidence.
| 14 |
| (a-5) The following persons are exempt from this Section, | 15 |
| provided they
prove the exemption by a preponderance of the | 16 |
| evidence:
| 17 |
| (1) An attorney licensed to practice law in any state | 18 |
| or territory of
the United States, or of any foreign | 19 |
| country when authorized by the
Illinois Supreme Court, to | 20 |
| the extent the attorney renders immigration
assistance | 21 |
| service in the course of his or her practice as an | 22 |
| attorney.
| 23 |
| (2) A legal intern, as described by the rules of the | 24 |
| Illinois Supreme
Court, employed by and under the direct | 25 |
| supervision of a licensed attorney
and rendering | 26 |
| immigration assistance service in the course of the | 27 |
| intern's
employment.
| 28 |
| (3) A not-for-profit organization recognized by the | 29 |
| Board of Immigration
Appeals under 8 C.F.R. 292.2(a) and | 30 |
| employees of those organizations accredited
under 8 C.F.R. | 31 |
| 292.2(d).
| 32 |
| (4) Any organization employing or desiring to employ an | 33 |
| alien or
nonimmigrant alien, where the organization, its | 34 |
| employees or its agents
provide advice or assistance in | 35 |
| immigration matters to alien or nonimmigrant
alien | 36 |
| employees or potential employees without compensation from |
|
|
|
SB0233 |
- 3 - |
LRB094 05072 RXD 36490 b |
|
| 1 |
| the
individuals to whom such advice or assistance is | 2 |
| provided.
| 3 |
| Nothing in this Section shall regulate any business to the | 4 |
| extent
that such regulation is prohibited or preempted by State | 5 |
| or federal law.
| 6 |
| All other persons providing or offering to provide | 7 |
| immigration
assistance service shall be subject to this | 8 |
| Section.
| 9 |
| (b) Any person who provides or offers to provide | 10 |
| immigration assistance
service may perform only the following | 11 |
| services:
| 12 |
| (1) Completing a government agency
form, requested by | 13 |
| the customer and appropriate to the customer's
needs,
only | 14 |
| if the completion of that form does not involve a legal
| 15 |
| judgment
for that particular matter.
| 16 |
| (2) Transcribing responses to a government agency form | 17 |
| which is
related to an immigration matter, but not advising | 18 |
| a customer as to his or
her answers on those forms.
| 19 |
| (3) Translating information on forms to a customer and | 20 |
| translating the
customer's answers to questions posed on | 21 |
| those forms.
| 22 |
| (4) Securing for the customer supporting documents | 23 |
| currently in
existence, such as birth and marriage | 24 |
| certificates, which may be needed to
be submitted with | 25 |
| government agency forms.
| 26 |
| (5) Translating documents from a foreign language into | 27 |
| English.
| 28 |
| (6) Notarizing signatures on government agency forms, | 29 |
| if the person
performing the service is a notary public of | 30 |
| the State of Illinois.
| 31 |
| (7) Making referrals, without fee, to attorneys who | 32 |
| could undertake
legal representation for a person in an | 33 |
| immigration matter.
| 34 |
| (8) Preparing or arranging for the preparation of | 35 |
| photographs and
fingerprints.
| 36 |
| (9) Arranging for the performance of medical testing
|
|
|
|
SB0233 |
- 4 - |
LRB094 05072 RXD 36490 b |
|
| 1 |
| (including X-rays and AIDS tests) and the obtaining of | 2 |
| reports of such test
results.
| 3 |
| (10) Conducting English language and civics courses.
| 4 |
| (11) Other services that the Attorney General | 5 |
| determines by rule may be
appropriately performed by such | 6 |
| persons in light of the purposes of this
Section.
| 7 |
| Fees for a notary public, agency, or any other person who | 8 |
| is not an attorney or an accredited representative filling out | 9 |
| immigration forms shall be limited to the maximum fees set | 10 |
| forth in subsections (a) and (b) of Section 3-104 of the Notary | 11 |
| Public Act (5 ILCS 312/3-104). The maximum fee schedule set | 12 |
| forth in subsections (a) and (b) of Section 3-104 of the Notary | 13 |
| Public Act shall apply to any immigration consultants | 14 |
| performing the services described therein. The Attorney | 15 |
| General may promulgate rules establishing maximum fees that may | 16 |
| be charged for any services not described in that subsection. | 17 |
| The maximum fees must be reasonable in light of the costs of | 18 |
| providing those services and the degree of professional skill | 19 |
| required to provide the services.
| 20 |
| No person subject to this Act shall charge fees directly or
| 21 |
| indirectly for referring an individual to an attorney or for | 22 |
| any
immigration matter not authorized by this Article, provided | 23 |
| that a person may
charge a fee for notarizing documents as | 24 |
| permitted by the Illinois Notary
Public Act.
| 25 |
| (c) Any person performing such services shall register with | 26 |
| the Illinois
Attorney General and submit verification of | 27 |
| malpractice insurance or of a
surety bond.
| 28 |
| (d) Except as provided otherwise in this subsection, before | 29 |
| providing
any
assistance in an immigration matter a person | 30 |
| shall provide the customer with
a written contract that | 31 |
| includes the following:
| 32 |
| (1) An explanation of the services to be performed.
| 33 |
| (2) Identification of all compensation and costs to be | 34 |
| charged to the
customer for the services to be performed.
| 35 |
| (3) A statement that documents submitted in support of | 36 |
| an application
for nonimmigrant, immigrant, or |
|
|
|
SB0233 |
- 5 - |
LRB094 05072 RXD 36490 b |
|
| 1 |
| naturalization status may not be retained
by the person for | 2 |
| any purpose, including payment of compensation or costs.
| 3 |
| This subsection does not apply to a not-for-profit | 4 |
| organization that
provides advice or assistance in immigration | 5 |
| matters to clients without charge
beyond a reasonable fee to | 6 |
| reimburse the organization's or clinic's reasonable
costs | 7 |
| relating to providing immigration services to that client.
| 8 |
| (e) Any person who provides or offers immigration | 9 |
| assistance service and
is not exempted from this Section, shall | 10 |
| post signs at his or her place of
business, setting forth | 11 |
| information in English and in every other language in
which the
| 12 |
| person provides or offers to provide immigration assistance | 13 |
| service. Each
language shall be on a separate sign. Signs shall | 14 |
| be posted in a location
where the signs will be visible to | 15 |
| customers. Each sign shall be at least
11 inches by 17 inches, | 16 |
| and shall contain the following:
| 17 |
| (1) The statement "I AM NOT AN ATTORNEY LICENSED TO | 18 |
| PRACTICE LAW AND
MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES | 19 |
| FOR LEGAL ADVICE."
| 20 |
| (2) The statement "I AM NOT ACCREDITED TO REPRESENT YOU | 21 |
| BEFORE THE
UNITED STATES IMMIGRATION AND NATURALIZATION | 22 |
| SERVICE AND THE IMMIGRATION
BOARD OF APPEALS."
| 23 |
| (3) The fee schedule.
| 24 |
| (4) The statement that "You may cancel any contract
| 25 |
| within 3 working days and get your money back for services | 26 |
| not performed."
| 27 |
| (5) Additional information the Attorney General may | 28 |
| require by rule.
| 29 |
| Every person engaged in immigration assistance service who | 30 |
| is not an
attorney who advertises immigration assistance | 31 |
| service in a language other
than English, whether by radio, | 32 |
| television, signs, pamphlets, newspapers,
or other written | 33 |
| communication, with the exception of a single desk plaque,
| 34 |
| shall include in the document, advertisement, stationery, | 35 |
| letterhead, business card, or other comparable written | 36 |
| material the following notice in English and the language in |
|
|
|
SB0233 |
- 6 - |
LRB094 05072 RXD 36490 b |
|
| 1 |
| which the written communication appears. This notice shall be
| 2 |
| of a conspicuous size, if in writing, and shall state: "I AM | 3 |
| NOT AN
ATTORNEY LICENSED TO PRACTICE LAW IN ILLINOIS AND MAY | 4 |
| NOT GIVE LEGAL ADVICE OR ACCEPT
FEES FOR LEGAL ADVICE." If such | 5 |
| advertisement is by radio or television,
the statement may be | 6 |
| modified but must include substantially the same message.
| 7 |
| Any person who provides or offers immigration assistance | 8 |
| service and is not exempted from this Section shall not, in any | 9 |
| document, advertisement, stationery, letterhead, business | 10 |
| card, or other comparable written material, literally | 11 |
| translate from English into another language terms or titles | 12 |
| including, but not limited to, notary public, notary, licensed, | 13 |
| attorney, lawyer, or any other term that implies the person is | 14 |
| an attorney. To illustrate, the word "notario" is prohibited | 15 |
| under this provision.
| 16 |
| If not subject to penalties under subsection (a) of Section | 17 |
| 3-103 of the Notary Public Act (5 ILCS 312/3-103), violations | 18 |
| of this subsection shall result in a fine of $1,000. Violations | 19 |
| shall not preempt or preclude additional appropriate civil or | 20 |
| criminal penalties.
| 21 |
| (f) The written contract shall be in both English and in | 22 |
| the language
of the customer.
| 23 |
| (g) A copy of the contract shall be provided to the | 24 |
| customer upon the
customer's execution of the contract.
| 25 |
| (h) A customer has the right to rescind a contract within | 26 |
| 72 hours after
his or her signing of the contract.
| 27 |
| (i) Any documents identified in paragraph (3) of subsection | 28 |
| (c) shall be
returned upon demand of the customer.
| 29 |
| (j) No person engaged in providing immigration services who | 30 |
| is not exempted under this Section shall do any
of the | 31 |
| following:
| 32 |
| (1) Make any statement that the person can or will | 33 |
| obtain special favors
from or has special influence with | 34 |
| the United States Immigration and
Naturalization Service | 35 |
| or any other government agency.
| 36 |
| (2) Retain any compensation for service not performed.
|
|
|
|
SB0233 |
- 7 - |
LRB094 05072 RXD 36490 b |
|
| 1 |
| (2.5) Accept payment in exchange for providing legal | 2 |
| advice or any other assistance that requires legal | 3 |
| analysis, legal judgment, or interpretation of the law.
| 4 |
| (3) Refuse to return documents supplied by, prepared on | 5 |
| behalf of, or paid
for by the customer upon the request of | 6 |
| the customer. These documents must be
returned upon request | 7 |
| even if there is a fee dispute between the immigration
| 8 |
| assistant and the customer.
| 9 |
| (4) Represent or advertise, in connection with the | 10 |
| provision assistance
in immigration matters, other titles | 11 |
| of credentials, including but not
limited to "notary | 12 |
| public" or "immigration consultant," that could cause a
| 13 |
| customer to believe that the person possesses special | 14 |
| professional skills or
is authorized to provide advice on | 15 |
| an immigration matter; provided that a
notary public | 16 |
| appointed by the Illinois Secretary of State may use the | 17 |
| term
"notary public" if the use is accompanied by the | 18 |
| statement that the person
is not an attorney; the term | 19 |
| "notary public" may not be translated to another language; | 20 |
| for example "notario" is prohibited.
| 21 |
| (5) Provide legal advice, recommend a specific course | 22 |
| of legal action, or provide any other assistance that | 23 |
| requires legal analysis, legal judgment, or interpretation | 24 |
| of the law.
| 25 |
| (6) Make any misrepresentation of false statement, | 26 |
| directly or
indirectly, to influence, persuade, or induce | 27 |
| patronage.
| 28 |
| (k) (Blank)
| 29 |
| (l) (Blank)
| 30 |
| (m) Any person who violates any provision
of this Section, | 31 |
| or the rules and regulations issued
under this Section, shall | 32 |
| be guilty of a Class A misdemeanor for a first
offense and a | 33 |
| Class 3 felony for a second or subsequent offense committed
| 34 |
| within 5 years of a previous conviction for the same offense.
| 35 |
| Upon his own information or upon the complaint of any | 36 |
| person, the
Attorney General or any State's Attorney, or a |
|
|
|
SB0233 |
- 8 - |
LRB094 05072 RXD 36490 b |
|
| 1 |
| municipality with a
population of more than 1,000,000, may | 2 |
| maintain an action for injunctive
relief and also seek a civil | 3 |
| penalty not exceeding $50,000 in the circuit court
against any | 4 |
| person who violates any provision of
this Section. These | 5 |
| remedies are in addition to, and not in substitution
for, other | 6 |
| available remedies.
| 7 |
| If the Attorney General or any State's Attorney or a | 8 |
| municipality
with a population of more than 1,000,000 fails to | 9 |
| bring an action as
provided under this Section any person may | 10 |
| file a civil action to
enforce the provisions of this Article | 11 |
| and maintain an action for
injunctive relief, for compensatory | 12 |
| damages to recover prohibited fees, or for such additional | 13 |
| relief as may be appropriate to
deter, prevent, or compensate | 14 |
| for the violation.
In order to deter violations of this | 15 |
| Section, courts shall not require a
showing of the traditional | 16 |
| elements for equitable relief. A prevailing
plaintiff may be | 17 |
| awarded 3 times the prohibited fees or a minimum of $1,000 in
| 18 |
| punitive damages, attorney's fees, and costs of
bringing an | 19 |
| action under this Section.
It is the express intention
of the | 20 |
| General Assembly that remedies for violation of this Section be
| 21 |
| cumulative.
| 22 |
| (n) No unit of local government, including any home rule | 23 |
| unit, shall have
the authority to regulate immigration | 24 |
| assistance services unless such
regulations are at least as | 25 |
| stringent as those contained in this amendatory
Act of 1992. It | 26 |
| is declared to be the law of this State, pursuant to
paragraph | 27 |
| (i) of Section 6 of Article VII of the Illinois Constitution of
| 28 |
| 1970, that this amendatory Act of 1992 is a limitation on the | 29 |
| authority of a
home rule unit to exercise powers concurrently | 30 |
| with the State. The
limitations of this Section do not apply to | 31 |
| a home rule unit that has,
prior to the effective date of this | 32 |
| amendatory Act, adopted an ordinance
regulating immigration | 33 |
| assistance services.
| 34 |
| (o) This Section is severable under Section 1.31 of the | 35 |
| Statute on Statutes.
| 36 |
| (p) The Attorney General shall issue rules not inconsistent |
|
|
|
SB0233 |
- 9 - |
LRB094 05072 RXD 36490 b |
|
| 1 |
| with this
Section for the implementation, administration, and | 2 |
| enforcement of this
Section by January 1, 1995 . The rules may | 3 |
| provide for the following:
| 4 |
| (1) The content, print size, and print style of the | 5 |
| signs required under
subsection (e). Print sizes and styles | 6 |
| may vary from language to language.
| 7 |
| (2) Standard forms for use in the administration of | 8 |
| this Section.
| 9 |
| (3) Any additional requirements deemed necessary.
| 10 |
| (Source: P.A. 93-1001, eff. 8-23-04.)
| 11 |
| Section 99. Effective date. This Act takes effect upon | 12 |
| becoming law.
|
|