NY Assembly 8974

Legislation

State: New York
Signed: August 06, 2014

Effective: February 06, 2015
Chapter: 206

Summary

Assembly 8974 adds clarifying provisions to the bond, contract for services and signs of immigration assistance service providers, adds and strengthens penalties for violations of the Immigration Assistance Services Enforcement Act, and creates a new Office for New Americans to help immigrants in need of immigration services.

Affects

Amends General Business Law Sections 460-a, 460-b, 460-c, 460-d, 460-e, 460-f, and 460-I; and adds General Business Law Section 460-g, Executive Law Section 94-b, and Penal Law Sections 190.87 and 190.89.

Changes

Immigration Assistance Service Bond

Requires every immigration assistance service provider to maintain in full force and effect for the entire period during which the provider provides immigrant assistance services and for one year after the provider ceased to do business as an immigrant assistance service provider, a bond, contract of indemnity, or irrevocable letter of credit, payable to the people of the state of New York, in the principal amount of $50,000. Note: the bond is not new, but the requirement for the bond to be valid for one year after the provider ceases operation is new.

Immigration Assistance Service Contract for Services

Clarifies additional terms that must be included in the contract executed between an immigration assistance service provider and customer, including a statement pointing a customer to telephone numbers where a free legal referral may be obtained from the Attorney General, the new Office for New Americans (see below) or a local district attorney or prosecutor, along with accurate and current phone numbers.
Requires the contract executed between an immigration assistance service provider and customer to contain the statement: “The individual providing assistance to you under the terms of this contract must explain the contents of this contract to you and answer any questions about it that you may have.” Note: providers should be careful to only provide explanations about the contents of the contract, and not any legal matters that are beyond the scope of their qualifications.
Requires each contract executed between an immigration assistance service provider and customer to contain a cancellation form to be used by the customer in cancelling the contract, if necessary.

Immigration Assistance Service Signs

Clarifies the required notices that must be included in signs that an immigration assistance service provider is required to provide to a customer, including a statement informing a customer about how to file a complaint against a provider and pointing a customer to telephone numbers where a free legal referral may be obtained from the Attorney General, the new Office for New Americans (see below) or a local district attorney or prosecutor, along with accurate and current phone numbers.

Required and Prohibited Acts

Requires an immigration assistance service provider to promptly notify the customer in writing when the provider has disclosed any information to or filed any form or document with immigration or other authorities when such disclosure or filing was required by law and done without the knowledge and consent of the customer.
Prohibits an immigration assistance service provider from assuming, using, advertising or representing oneself as a “notario public”, “notario”, or “immigration specialist” ,” that could cause a customer to believe that the person possesses special professional skills or is authorized to provide advice on an immigration matter. Note: existing statute prohibits use of such terms as lawyer or attorney at law, “notary public”, “accredited representative of the board of immigration appeals” or “immigration consultant,” but authorizes a Notary Public licensed by the Secretary of State to use the term “Notary Public.”
Prohibits an immigration assistance service provider from: (a) referring a customer to an attorney or any other individual or entity that can provide services that the immigrant assistance service provider cannot provide for a fee or other compensation; (b) giving advice on the determination of a person’s immigration status, including advising him or her as to answers on a government form regarding such determination; (c) promising to expedite immigration or other immigration related governmental benefit processes, through claims to have special relationships with or special access to government employees who will expedite applications or issue favorable decisions for any reason other than the merits of the application; and (d) knowingly providing misleading or false information to a noncitizen about his or her individual or family’s eligibility for immigration benefits or status, or to noncitizens or citizens about their individual or family’s eligibility for other government benefits, with the intent to induce an individual to employ the services of the service provider to obtain such immigration benefits or status, or such other government benefits.

Section One

Establishes the Office for New Americans within the New York Department of State, and prescribes the powers and responsibilities of the office.

Penalties and Criminal Acts

Provides that an individual who is harmed by an immigration assistance service provider as a result of an immigration assistance provider’s violation of the immigration assistance service enforcement act may bring an action against a provider to enjoin such unlawful act or practice, an action to recover actual damages or $25,000, whichever is greater, or both such actions, in addition to any other remedy available in law or equity; and further provides that the court may award costs and reasonable attorney’s fees to a prevailing plaintiff.
Classifies any violation of any provision of the immigration assistance service enforcement act as a class A misdemeanor, punishable by a fine of not more than $1,000, or by imprisonment for not more than 1 year, or by both such fine and imprisonment; provided however, a second or subsequent offense shall be punishable by a fine of not more than $3,000 or by imprisonment for not more than 1 year, or by both a fine and imprisonment; and further provides that the Attorney General shall have authority to prosecute any violation.
Increases the civil penalty a court may impose for a violation of the immigration assistance service act from $7,500 to $10,000 following the process provided in Section 460-h of the General Business Law for the application of an injunction brought by the Attorney General.
Provides that any person or entity that engages in any conduct prohibited under General Business Law Sections 349, 350-c and 350-d of the General Business Law (regarding deceptive practices and false advertising), and Section 63, subdivision 12 of the Executive Law (regarding proceedings by the Attorney General for equitable relief against fraudulent or illegal consumer fraud), and whose conduct is perpetrated against one or more persons seeking or using immigrant assistance services, may be liable for an additional civil penalty not to exceed $10,000, in accordance with mitigating factors enumerated in new Section 460-k, subdivision 1(b); and further clarifies that restitution ordered to Section 460-k or any other section of law shall be given priority over the imposition of civil penalties ordered by the court.
Provides a person is guilty of immigrant assistance services fraud in the second degree, a class A misdemeanor, when, with intent to defraud another person seeking immigrant assistance services, as defined in Article 28-C of the General Business Law, from such person, he or she violates Section 460-d of the General Business Law with intent to obtain property from such other person by false or fraudulent pretenses, representations or promises, and thereby wrongfully obtains such property.
Provides a person is guilty of immigrant assistance services fraud in the first degree, a class E felony, when, with intent to defraud another person seeking immigrant assistance services, as defined in Article 28-C of the General Business Law, from such person, he or she violates Section 460-d of the General Business Law with intent to obtain property from such other person by false or fraudulent pretenses, representations or promises, and thereby wrongfully obtains such property with a value in excess of $1,000.
Makes non-substantive changes.

Analysis

Assembly 8974 substantively amends the New York Immigration Assistance Services Enforcement Act. New York, like California and a few other states, allows individuals to be licensed to perform certain non-legal immigration-related services. The Act requires providers of such services to carry a bond, provide a contract and signs to customers containing specified language, and further outlines various prohibited acts and penalties. A 8974 clarifies that the $50,000 bond required of providers must be valid for 1 year after the provider ceases offering immigration services. It also clarifies additional requirements for the contract and signs providers must use. It also stiffens and adds penalties – criminal and civil – for violations of the Act. Notably, the Act also establishes the new Office for New Americans to help immigrants in need of immigration services.

Read Assembly 8974.