NY State Assembly Bill 2009-A10491

Assembly Bill A10491

2009-2010 Legislative Session

Enacts the immigration provider enforced disclosure information and registration (IMPEDIR) act of 2010

download bill text pdf

Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 28, 2010	reported referred to ways and means
Jun 03, 2010	reported referred to codes
Apr 02, 2010	referred to economic development

2009-A10491 (ACTIVE) - Details

See Senate Version of this Bill:: S7343
Current Committee:: Assembly Ways And Means
Law Section:: General Business Law
Laws Affected:: Add §460-k, amd §§460-e, 460-g, 460-h & 460-i, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A6427, S1881
2013-2014: A77, S1705
2015-2016: A5855, S3566
2017-2018: A8567, S2334

2009-A10491 (ACTIVE) - Summary

Enacts the immigration provider enforced disclosure information and registration (IMPEDIR) act of 2010.

2009-A10491 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A10491

TITLE OF BILL:

An act to amend the general business law, in relation to enacting the
Immigration Provider Enforced Disclosure Information and Registration
(IMPEDIR) Act of 2010

PURPOSE:

To expand and enhance existing protections against unscrupulous and
fraudulent immigrant assistance service providers by establishing a
compulsory registration scheme for providers of these services and
creating both new and significantly enhanced civil and criminal penal-
ties for providers that violate the law.

SUMMARY OF PROVISIONS:

Section 1 of the bill establishes the title of the Act as the "Immi-
gration Provider Enforced Disclosure Information and Registration (IMPE-
DIR) Act of 2010."

Section 2 of the bill adds a new section 460-k to the General Business
Law to: (1) require immigrant assistance service providers to register
with the NYS Secretary of State (the "Secretary") prior to engaging in
the provision of immigrant assistance services; (2) require the Secre-

tary to make public on its website a list of currently registered
providers; (3) require the Secretary to collect a reasonable filing fee
for registration and renewal applications; (4) require the Secretary to
establish a procedure for the filing and investigation of complaints
against providers; (5) empower the Secretary to refer any such matter
for prosecution to the NYS Attorney General or other appropriate law
enforcement agency; and (6) empower the Secretary to deny an application
for registration or renewal (or revoke or suspend an existing registra-
tion) on specified grounds.

Section 3 of the bill amends section 460-e of the General Business Law
to include additional prohibited acts. Among other things, the bill
would expressly prohibit providers from advertising or providing immi-
grant assistance services without having first obtained a valid certif-
icate of registration from the Secretary, as well as a valid surety
bond, contract of indemnity or irrevocable letter of credit pursuant to
existing section 460-g of the General Business Law.

Section 4 of the bill amends: (1) section 460-g of the General Business
Law to add a requirement that the Secretary post on the Department's
website information relating to providers' compliance with the bond
requirement of section 460-g; (2) section 460-h of the General Business
Law to increase the maximum permissible civil penalties for violations
of GBL Article 28-C ("Immigrant Assistance Services") from $7,500 to
$20,000 (or $25,000 for violations of certain enumerated provisions) and

to permit aggrieved persons to bring a civil action for injunctive
relief, damages or both; and (3) section 460-i of the General Business
Law to increase the criminal penalty for certain violations of article
28-C (e.g., providing services without a valid certificate of registra-
tion; giving legal advice as a non-attorney immigrant assistance service
provider or otherwise engaging as a service provider in the unauthorized
practice of law) from a class A misdemeanor to a class E felony (and a
class D felony for repeat offenders).

Section 5 of the bill establishes the effective date.

JUSTIFICATION:

Immigrants seeking assistance in immigration-related matters (e.g.
obtaining legal residence, work authorization, citizenship or helping
family members) are routinely preyed upon by unscrupulous "immigration
service providers."

Many of these "providers" falsely claim that they are attorneys or have
close connections with the U.S. Citizenship and Immigration Services,
often times using titles that deceive people into believing that they
are, in fact, attorneys at law. Victims of these scams are often immi-
grants who not only stand to lose large sums of money but also are like-
ly to suffer harm to their immigration status.

The New York Immigration Assistance Services law was enacted in 2004 to
protect immigrants from being exploited by establishing new standards
and protections to effectively regulate the activities of those who
would take advantage of them.

However, events have demonstrated that the 2004 reforms were not enough
to prevent bad actors from taking advantage of hard-working immigrants
who are attempting to achieve citizenship and their own version of the
American Dream. This bill seeks to enact a comprehensive registration
mechanism and authorize enhanced civil and criminal penalties so that
New York e can monitor and, where appropriate, investigate and prosecute
to the fullest extent of the law those who would seek to defraud and
prey upon immigrants.

LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

To be determined.

EFFECTIVE DATE:

January first next succeeding the date on which it shall have become a
law.

2009-A10491 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  10491

                          I N  A S S E M B L Y

                              April 2, 2010
                               ___________

Introduced  by  M.  of  A.  ESPAILLAT  --  read once and referred to the
  Committee on Economic Development, Job Creation, Commerce and Industry

AN ACT to amend the general business law, in relation  to  enacting  the
  Immigration  Provider Enforced Disclosure Information and Registration
  (IMPEDIR) Act of 2010

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  This  act  shall  be known and may be cited as the "Immi-
gration Provider Enforced Disclosure Information and Registration (IMPE-
DIR) Act of 2010".
  S 2. The general business law is amended by adding a new section 460-k
to read as follows:
  S 460-K. CERTIFICATE OF REGISTRATION.   1.  THE  DEPARTMENT  OF  STATE
SHALL,  IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION, ISSUE CERTIF-
ICATES OF REGISTRATION WHICH SHALL BE VALID, UNLESS EARLIER  REVOKED  OR
SUSPENDED,  FOR  A  PERIOD OF TWO YEARS, TO PROVIDERS AND, UPON APPLICA-
TION, ISSUE RENEWAL CERTIFICATES OF REGISTRATION EVERY  TWO  YEARS.  THE
SECRETARY  OF STATE SHALL ENFORCE THE PROVISIONS OF THIS ARTICLE GOVERN-
ING THE FILING AND MAINTENANCE OF  SURETY  BONDS  AND  APPLICATIONS  FOR
REGISTRATION AND/OR RENEWAL.
  2.  ANY PERSON INTENDING TO ENGAGE, AS AN IMMIGRANT ASSISTANCE SERVICE
PROVIDER, IN ANY ONE OR MORE OF THE ACTIVITIES SET FORTH IN THIS ARTICLE
SHALL FILE WITH THE  DEPARTMENT  OF  STATE  A  WRITTEN  APPLICATION  AND
DISCLOSURE, ON FORMS TO BE PROVIDED BY THE DEPARTMENT OF STATE, CONTAIN-
ING  SUCH  INFORMATION AND DOCUMENTATION TO BE RETAINED BY THE SECRETARY
OF STATE AS THE SECRETARY OF STATE MAY REQUIRE BY  RULE  OR  REGULATION,
INCLUDING  BUT  NOT  LIMITED  TO: (A) THE NAME, DATE OF BIRTH, RESIDENCE
ADDRESS, BUSINESS ADDRESS,  RESIDENCE  TELEPHONE  NUMBER,  AND  BUSINESS
TELEPHONE  NUMBER  OF  SUCH  PERSON;  (B)  THE  NAME AND ADDRESS OF SUCH
PERSON'S AGENT FOR SERVICE OF PROCESS IF ONE IS  REQUIRED  OR  HAS  BEEN
APPOINTED AND, IF APPLICABLE, THE NAME, BUSINESS ADDRESS, BUSINESS TELE-
PHONE AND AGENT FOR SERVICE OF PROCESS OF THE CORPORATION OR PARTNERSHIP
EMPLOYING  SUCH  PERSON;  (C)  A RECORD OF ANY PRIOR CONVICTIONS FOR ANY
CRIME COMMITTED IN THIS STATE OR ANY OTHER JURISDICTION.  THE  SECRETARY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD16690-02-0

A. 10491                            2

OF  STATE SHALL DEVELOP THE DISCLOSURE FORM REQUIRED TO FILE AN APPLICA-
TION AND BOND PURSUANT TO THIS SECTION AND SECTION FOUR HUNDRED  SIXTY-G
OF THIS ARTICLE.
  3. THE SECRETARY OF STATE SHALL CHARGE AND COLLECT A REASONABLE FILING
FEE  AT  THE  TIME  OF  APPLICATION  AND/OR RENEWAL TO COVER THE COST OF
FILING THE BOND REQUIRED BY SECTION FOUR HUNDRED SIXTY-G OF  THIS  ARTI-
CLE.
  4. THE DEPARTMENT OF STATE SHALL MAKE PUBLIC ON ITS WEBSITE UPDATED AT
LEAST  MONTHLY,  AND  SHALL MAKE AVAILABLE IN RESPONSE TO THE REQUEST OF
ANY CUSTOMER, A LIST OF PROVIDERS WHO ARE REGISTERED  PURSUANT  TO  THIS
ARTICLE.  EACH  PROVIDER  SHALL  CONSPICUOUSLY  POST  ITS CERTIFICATE OF
REGISTRATION AT ITS PLACE OF BUSINESS.
  5. IMMIGRANT ASSISTANCE SERVICE PROVIDERS  WHO  HAVE  REGISTERED  MUST
INFORM  THE  SECRETARY OF STATE OF ANY CHANGES IN THEIR NAME, ADDRESSES,
OR TELEPHONE NUMBERS WITHIN THIRTY DAYS OF SUCH CHANGE.
  6. THE SECRETARY OF STATE  SHALL  ESTABLISH  A  PROCEDURE  FOR  FILING
COMPLAINTS AND INVESTIGATING THE COMPLAINT ON BEHALF OF AN INJURED PARTY
OR  ANY OTHER PARTY WHO, UPON INFORMATION AND BELIEF, CLAIMS A VIOLATION
OF THIS ARTICLE. THE SECRETARY OF STATE SHALL INITIATE ANY INVESTIGATION
NO LATER THAN THIRTY DAYS AFTER RECEIPT OF A COMPLAINT AND, WHEN  APPRO-
PRIATE, MAY REFER ANY SUCH MATTER FOR PROSECUTION TO THE ATTORNEY GENER-
AL OR OTHER APPROPRIATE LAW ENFORCEMENT AUTHORITY.
  7.  THE  DEPARTMENT OF STATE SHALL HAVE THE POWER TO REVOKE OR SUSPEND
ANY CERTIFICATE OF REGISTRATION, OR REPRIMAND ANY REGISTRANT OR DENY  AN
APPLICATION  FOR  A  CERTIFICATE OF REGISTRATION OR RENEWAL THEREOF UPON
PROOF:
  (A)  THAT  THE  APPLICANT  OR  REGISTRANT  HAS  VIOLATED  ANY  OF  THE
PROVISIONS  OF  THIS  ARTICLE  OR  THE RULES AND REGULATIONS PROMULGATED
HEREUNDER;
  (B) THAT THE APPLICANT OR REGISTRANT HAS PRACTICED  FRAUD,  DECEIT  OR
MISREPRESENTATION OR BEEN CONVICTED OF A FELONY;
  (C)  THAT THE APPLICANT OR REGISTRANT HAS MADE A MATERIAL MISSTATEMENT
IN THE APPLICATION FOR OR RENEWAL OF HIS OR HER REGISTRATION;
  (D) THAT THE APPLICANT OR REGISTRANT HAS DEMONSTRATED INCOMPETENCE  OR
UNTRUSTWORTHINESS IN HIS OR HER ACTIONS.
  8.  ALL FEES AND OTHER MONEYS DERIVED FROM THE OPERATION OF THIS ARTI-
CLE SHALL ON THE FIFTH DAY OF EACH MONTH BE PAID BY  THE  DEPARTMENT  OF
STATE INTO THE STATE TREASURY.
  S  3.  Subdivision  8 of section 460-e of the general business law, as
added by chapter 463 of the laws of  2004,  is  amended  and  three  new
subdivisions 11, 12 and 13 are added to read as follows:
  8.  Make  any  misrepresentation or false statement, directly or indi-
rectly, INCLUDING, BUT NOT LIMITED TO,  FALSELY  REPRESENTING  THAT  THE
OFFERING OR PROVISION OF SERVICES IS NECESSARY, OR THAT THE LIFE, SAFETY
OR  WELFARE  OF  THE  CUSTOMER  OR  HIS OR HER FAMILY WOULD BE ADVERSELY
AFFECTED IF THE SERVICES OF AN IMMIGRANT  ASSISTANCE  SERVICES  PROVIDER
ARE NOT PROVIDED.
  11.   PROVIDE  IMMIGRANT  ASSISTANCE  SERVICES  WITHOUT  HAVING  FIRST
OBTAINED FROM THE DEPARTMENT OF STATE A CURRENT,  VALID  CERTIFICATE  OF
REGISTRATION  PURSUANT  TO  SECTION FOUR HUNDRED SIXTY-K OF THIS ARTICLE
AND HAVING IN FULL FORCE AND EFFECT A BOND,  CONTRACT  OF  INDEMNITY  OR
IRREVOCABLE LETTER OF CREDIT PURSUANT TO SECTION FOUR HUNDRED SIXTY-G OF
THIS ARTICLE.
  12.  ADVERTISE  OR OTHERWISE DISSEMINATE BY ANY MEANS ANY STATEMENT OR
OTHER REPRESENTATION INDICATING DIRECTLY OR BY IMPLICATION  THAT  HE  OR
SHE  ENGAGES IN THE BUSINESS OF IMMIGRANT ASSISTANCE SERVICE PROVIDER OR

A. 10491                            3

ACTS IN THE CAPACITY OF AN  IMMIGRANT  ASSISTANCE  SERVICE  PROVIDER  OR
PROPOSES  TO  ENGAGE  IN THE BUSINESS OR ACT IN THE CAPACITY OF AN IMMI-
GRANT ASSISTANCE SERVICE PROVIDER, UNLESS HE OR SHE HAS ON FILE WITH THE
SECRETARY  OF STATE A VALID CERTIFICATE OF REGISTRATION PURSUANT TO THIS
ARTICLE AND A BOND, CONTRACT OF INDEMNITY OR IRREVOCABLE LETTER OF CRED-
IT, IN THE AMOUNT AND SUBJECT TO THE TERMS  DESCRIBED  IN  SECTION  FOUR
HUNDRED SIXTY-G OF THIS ARTICLE.
  13.  FAIL TO REVEAL TO THE CLIENT OR CUSTOMER OF SUCH PROVIDER A MATE-
RIAL  FACT  REGARDING AN IMMIGRATION MATTER OR REGARDING SERVICES, WHICH
FACT COULD NOT BE REASONABLY KNOWN TO THE CLIENT, THE OMISSION OF  WHICH
TENDS TO MISLEAD OR DECEIVE THE CLIENT OR CUSTOMER.
  S  4.  Sections 460-g, 460-h and 460-i of the general business law, as
added by chapter 463 of the  laws  of  2004,  are  amended  to  read  as
follows:
  S  460-g.  Surety  requirement.  Every provider shall maintain in full
force and effect 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 fifty thousand dollars; provided, however, that every provider
that receives in excess of two hundred fifty thousand dollars  in  total
fees  and  other compensation for providing immigrant assistance service
during any twelve-month period shall maintain in full force and effect 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  twenty
percent  of  such  total fees and compensation. Such surety shall be for
the benefit of any customer who does not receive a refund of  fees  from
the  provider to which he or she is entitled, or is otherwise injured by
the provider. The attorney general on behalf  of  the  customer  or  the
customer  in  his  or  her  own name, may maintain an action against the
provider and the surety.  THE SECRETARY OF STATE SHALL POST  INFORMATION
ON  THE  DEPARTMENT  OF STATE WEBSITE DEMONSTRATING THAT THE IMMIGRATION
PROVIDER IS IN COMPLIANCE WITH THE BOND AS REQUIRED BY THIS SECTION.
  S 460-h. Enforcement. 1. Upon any violation of this article, an appli-
cation may be made by the attorney general in the name of the people  of
the  state  to  a  court having jurisdiction to issue an injunction, and
upon notice to the respondent of not fewer than five days, to enjoin and
restrain the continuance of the violation. If it  shall  appear  to  the
satisfaction  of  the  court or justice that the defendant has, in fact,
violated this article, an injunction may be  issued  by  such  court  or
justice,  enjoining  and  restraining  any  further  violation,  without
requiring proof that any person has, in fact, been  injured  or  damaged
thereby.  In  any  such proceeding, the court may make allowances to the
attorney general as provided in paragraph  six  of  subdivision  (a)  of
section  eighty-three hundred three of the civil practice law and rules,
and direct restitution.  Whenever  the  court  shall  determine  that  a
violation  of  this  article  has occurred, the court may impose a civil
penalty of not more than [seven thousand five hundred]  TWENTY  THOUSAND
dollars  for  each  violation,  PROVIDED HOWEVER, THE COURT MAY IMPOSE A
CIVIL PENALTY OF NOT  MORE  THAN  TWENTY-FIVE  THOUSAND  DOLLARS  FOR  A
VIOLATION  OF  SUBDIVISION ONE, TWO, THREE, FOUR, FIVE, SIX OR ELEVEN OF
SECTION FOUR HUNDRED SIXTY-E OF THIS ARTICLE.
  2. A PERSON CLAIMING TO BE AGGRIEVED BY ANY VIOLATION OF THIS  ARTICLE
BY A PROVIDER MAY BRING A CIVIL ACTION FOR INJUNCTIVE RELIEF, DAMAGES OR
BOTH. THE COURT SHALL GRANT A PREVAILING PLAINTIFF REASONABLE ATTORNEYS'
FEES  AND  COSTS. ANY RECOVERY OR PROCEEDING IN A CIVIL ACTION SHALL NOT
PRECLUDE AN ACTION BY THE  ATTORNEY  GENERAL  OR  DISTRICT  ATTORNEY  TO

A. 10491                            4

PURSUE  CRIMINAL CHARGES AGAINST AN IMMIGRANT ASSISTANCE SERVICE PROVID-
ER. MINIMAL RECOVERY FOR THE PLAINTIFF SHALL BE FIVE THOUSAND DOLLARS.
  S  460-i. Violations.   [Any] 1. EXCEPT AS PROVIDED IN SUBDIVISION TWO
OF THIS SECTION, ANY violation of any provision of this article shall be
a class A misdemeanor, and upon conviction the court may order  as  part
of  the  sentence imposed restitution or reparation to the victim of the
crime pursuant to section 60.27 of the penal law.
  2.  ANY VIOLATION OF SUBDIVISION ONE, TWO, THREE, FOUR, FIVE,  SIX  OR
ELEVEN  OF SECTION FOUR HUNDRED SIXTY-E OF THIS ARTICLE SHALL BE A CLASS
E FELONY, PROVIDED HOWEVER THAT ANY SUCH VIOLATION SHALL BE  A  CLASS  D
FELONY  WHEN  COMMITTED BY A PERSON WHO HAS PREVIOUSLY BEEN CONVICTED OF
ANY SUCH VIOLATION IN THE PRECEDING TEN YEARS.
  S 5. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law; provided, however that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive  date  are  authorized  and directed to be made and completed on or
before such effective date.

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