senate Bill S1881

Enacts the immigration provider enforced disclosure information and registration (IMPEDIR) act of 2011

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 13 / Jan / 2011
    • REFERRED TO CONSUMER PROTECTION
  • 04 / Jan / 2012
    • REFERRED TO CONSUMER PROTECTION

Summary

Enacts the immigration provider enforced disclosure information and registration (IMPEDIR) act of 2011.

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Bill Details

See Assembly Version of this Bill:
A6427
Versions:
S1881
Legislative Cycle:
2011-2012
Current Committee:
Senate Consumer Protection
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 2009-2010 Legislative Cycle:
S7343, A10491, S7343

Sponsor Memo

BILL NUMBER:S1881

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 2011

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
penalties for providers that violate the law.

SUMMARY OF PROVISIONS:

Section 1 of the bill establishes the title of the Act as the
"Immigration Provider Enforced Disclosure Information and
Registration (IMPEDIR) Act of 2011."

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 Secretary 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 registration) 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
immigrant assistance services without having first obtained a valid
certificate 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 registration, 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 immigrants who not only stand to lose large sums of money but
also are likely 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 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, with provisions.

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

                                  1881

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 13, 2011
                               ___________

Introduced by Sen. ESPAILLAT -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN  ACT  to  amend the general business law, in relation to enacting the
  Immigration Provider Enforced Disclosure Information and  Registration
  (IMPEDIR) Act of 2011

  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 2011".
  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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05824-01-1

S. 1881                             2

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
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.

S. 1881                             3

  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
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'

S. 1881                             4

FEES AND COSTS. ANY RECOVERY OR PROCEEDING IN A CIVIL ACTION  SHALL  NOT
PRECLUDE  AN  ACTION  BY  THE  ATTORNEY  GENERAL OR DISTRICT ATTORNEY TO
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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