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

                                  4430

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 4, 2009
                               ___________

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  immigration
  providers

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

  Section 1. The general business law is amended by adding a new section
460-k to read as follows:
  S 460-K. LICENSES. 1. THE DEPARTMENT OF STATE SHALL ISSUE LICENSES  TO
IMMIGRATION  PROVIDERS  AND, UPON APPLICATION, TO ISSUE RENEWAL LICENSES
EVERY TWO YEARS. THE SECRETARY OF STATE SHALL ENFORCE THE PROVISIONS  OF
THIS  ARTICLE  GOVERNING  THE FILING AND MAINTENANCE OF SURETY BONDS AND
THE APPLICATION FOR LICENSURE AND/OR RENEWAL.
  2. NO PERSON SHALL ENGAGE IN  THE  BUSINESS  OF  IMMIGRANT  ASSISTANCE
SERVICE  AS  DEFINED IN SECTION FOUR HUNDRED SIXTY-A OF THIS ARTICLE, OR
ADVERTISE HIS OR HER BUSINESS TO BE THAT OF IMMIGRATION PROVIDER WITHOUT
HAVING FIRST OBTAINED FROM THE DEPARTMENT OF STATE A LICENSE TO  DO  SO,
PURSUANT TO THIS ARTICLE.
  3.  NO  PERSON SHALL DISSEMINATE BY ANY MEANS ANY STATEMENT INDICATING
DIRECTLY OR BY IMPLICATION THAT THE PERSON ENGAGES IN  THE  BUSINESS  OF
IMMIGRANT  ASSISTANCE SERVICE AS DEFINED IN SECTION FOUR HUNDRED SIXTY-A
OF THIS ARTICLE OR ACTS IN THE CAPACITY OF AN IMMIGRATION  PROVIDER,  OR
PROPOSES  TO  ENGAGE  IN THE BUSINESS OR ACT IN THE CAPACITY OF AN IMMI-
GRATION PROVIDER, UNLESS THE PERSON HAS ON FILE WITH  THE  SECRETARY  OF
STATE  A  BOND  AND  LICENSE,  IN  THE  AMOUNT  AND SUBJECT TO THE TERMS
DESCRIBED IN SECTION FOUR HUNDRED SIXTY-G OF THIS ARTICLE.
  4. ANY PERSON INTENDING TO ENGAGE, AS AN IMMIGRATION 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
PROVIDED  BY  THE  DEPARTMENT  OF STATE, CONTAINING SUCH INFORMATION AND
DOCUMENTATION TO BE RETAINED BY THE SECRETARY OF STATE AS THE  SECRETARY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02320-01-9
              

A. 4430                             2

OF  STATE  MAY REQUIRE BY RULE AND REGULATION, INCLUDING BUT NOT LIMITED
TO: (A) NAME, DATE OF BIRTH, RESIDENCE ADDRESS, BUSINESS ADDRESS,  RESI-
DENCE  TELEPHONE  NUMBER,  AND BUSINESS TELEPHONE NUMBER; (B) EXPERIENCE
THE  PROVIDER  HAS  HAD  WITH  IMMIGRATION;  (C)  PLACES OF BUSINESS AND
EMPLOYEES, IF ANY; (D) NAME AND ADDRESS  OF  THE  PROVIDER'S  AGENT  FOR
SERVICE  OF  PROCESS  IF  ONE  IS REQUIRED OR HAS BEEN APPOINTED AND, IF
APPLICABLE, THE NAME, BUSINESS ADDRESS, BUSINESS TELEPHONE AND AGENT FOR
SERVICE OF PROCESS OF THE CORPORATION OR PARTNERSHIP EMPLOYING THE IMMI-
GRATION PROVIDER; (E) A RECORD OF ANY PRIOR CONVICTIONS UNDER THIS ARTI-
CLE.  THE SECRETARY OF STATE SHALL DEVELOP THE DISCLOSURE FORM  REQUIRED
TO  FILE  AN  APPLICATION  AND BOND PURSUANT TO THIS SECTION AND SECTION
FOUR HUNDRED SIXTY-G OF THIS ARTICLE.
  5. THE SECRETARY OF STATE SHALL CHARGE AND COLLECT A 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 ARTICLE.
  6. THE DEPARTMENT OF STATE SHALL MAKE PUBLIC ON ITS WEBSITE UPDATED AT
LEAST  ANNUALLY,  OR  SHALL MAKE AVAILABLE IN RESPONSE TO THE REQUEST OF
ANY CUSTOMER, A LIST OF  PROVIDERS  LICENSED  AS  IMMIGRATION  PROVIDERS
PURSUANT  TO  THIS  ARTICLE.  EACH  IMMIGRATION  PROVIDER SHALL POST ITS
LICENSE AT ITS PLACE OF BUSINESS.
  7. 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.
  8. THE DEPARTMENT OF STATE SHALL HAVE THE POWER TO REVOKE  OR  SUSPEND
ANY  LICENSE,  OR  REPRIMAND  ANY  LICENSEE OR DENY AN APPLICATION FOR A
LICENSE OR RENEWAL UPON PROOF:
  (A) THAT THE APPLICANT OR LICENSEE HAS VIOLATED ANY OF THE  PROVISIONS
OF THIS ARTICLE OR THE RULES AND REGULATIONS PROMULGATED HEREUNDER;
  (B)  THAT  THE  APPLICANT  OR  LICENSEE HAS PRACTICED FRAUD, DECEIT OR
MISREPRESENTATION;
  (C) THAT THE APPLICANT OR LICENSEE HAS MADE A MATERIAL MISSTATEMENT IN
THE APPLICATION FOR OR RENEWAL OF HIS OR HER LICENSE;
  (D) THAT THE APPLICANT OR LICENSEE HAS  DEMONSTRATED  INCOMPETENCE  OR
UNTRUSTWORTHINESS IN HIS OR HER ACTIONS.
  9.  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 2. Sections 460-g and 460-h 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

A. 4430                             3

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 dollars for each
violation.
  2. A PERSON CLAIMING TO BE AGGRIEVED BY ANY VIOLATION OF THIS  ARTICLE
BY  AN  IMMIGRATION  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  PURSUE  CRIMINAL  CHARGES AGAINST AN IMMIGRATION
PROVIDER. MINIMAL RECOVERY FOR THE  PLAINTIFF  SHALL  BE  FIVE  THOUSAND
DOLLARS.
  S  3. 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.