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Indicates Matter Stricken
Indicates New Matter
Sponsors: Reps. Viers and Mahaffey
Document Path: l:\council\bills\agm\18640mm07.doc
Introduced in the House on January 9, 2007
Introduced in the Senate on March 7, 2007
Last Amended on March 6, 2007
Currently residing in the Senate Committee on Labor, Commerce and Industry
Summary: Immigration assistance
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 12/13/2006 House Prefiled 12/13/2006 House Referred to Committee on Labor, Commerce and Industry 1/9/2007 House Introduced and read first time HJ-26 1/9/2007 House Referred to Committee on Labor, Commerce and Industry HJ-26 1/16/2007 House Recalled from Committee on Labor, Commerce and Industry HJ-21 1/16/2007 House Referred to Committee on Judiciary HJ-21 2/28/2007 House Committee report: Favorable with amendment Judiciary HJ-20 3/1/2007 Scrivener's error corrected 3/6/2007 House Amended HJ-16 3/6/2007 House Read second time HJ-18 3/7/2007 House Read third time and sent to Senate HJ-16 3/7/2007 Senate Introduced and read first time SJ-15 3/7/2007 Senate Referred to Committee on Labor, Commerce and Industry SJ-15
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
March 6, 2007
S. Printed 3/6/07--H.
Read the first time January 9, 2007.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 91 TO TITLE 40 SO AS TO PROVIDE FOR REGISTRATION AND OTHER REQUIREMENTS FOR PERSONS ENGAGED IN THE PROFESSION OF PROVIDING IMMIGRATION ASSISTANCE.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 40 of the 1976 Code is amended by adding:
Section 40-91-10. This chapter may be cited as the 'Registration of Immigration Assistance Act'.
Section 40-91-20. The purpose and intent of this chapter is to establish and enforce standards of ethics in the profession of immigration assistance by private individuals who are not licensed attorneys.
Section 40-91-30. As used in this chapter, the term:
(1) 'Compensation' means money, property, services, promise of payment, or anything else of value;
(2) 'Employed by' means that a person is on the payroll of the employer and the employer deducts from the employee's paycheck social security and withholding taxes or that a person receives compensation from the employer on a commission basis or as an independent contractor;
(3) 'Immigration assistance service' means information or action provided or offered to customers or prospective customers related to immigration matters, excluding legal advice, recommending a specific course of legal action or providing other assistance that requires legal analysis, legal judgment, or interpretation of the law;
(4) 'Immigration matter' means any proceeding, filing, or action affecting the nonimmigrant, immigrant, or citizenship status of a person that arises pursuant to immigration and naturalization law, executive order, or presidential proclamation of the United States or any foreign country; or action of the United States Department of Labor, the United States Department of State, the United States Department of Homeland Security, or the United States Department of Justice.
Section 40-91-40. (A) A person who provides or offers to provide immigration assistance services may perform only the following services:
(1) completing a government agency form, requested by the customer and appropriate to the customer's needs only if the completion of that form does not involve a legal judgment for that particular matter;
(2) transcribing responses to a government agency form which is related to an immigration matter but not advising a customer as to his or her answers on those forms;
(3) translating information on forms to a customer and translating the customer's answers to questions posed on those forms;
(4) securing for the customer supporting documents currently in existence, including birth and marriage certificates, which may be needed to be submitted with government agency forms;
(5) translating documents from a foreign language into English;
(6) notarizing signatures on government agency forms, if the person performing the service is a notary public commissioned in the State of South Carolina and is lawfully present in the United States;
(7) making referrals, without fee, to attorneys who could undertake legal representation for a person in an immigration matter;
(8) preparing or arranging for the preparation of photographs and fingerprints;
(9) arranging for the performance of medical testing (including X-rays and AIDS tests) and the obtaining of reports of such test results;
(10) conducting English language and civics courses; and
(11) performing other services that the office of the Secretary of State determines by rule may be appropriately performed by these persons in light of the purposes of this chapter.
(B) The following persons are exempt from the provisions of this chapter:
(1) an attorney licensed to practice law in South Carolina or an attorney licensed to practice law in another state or territory of the United States or in a foreign country when acting with the approval of a judge having lawful jurisdiction over the matter;
(2) a legal intern, clerk, paralegal, or person in a similar position employed by and under the direct supervision of a licensed attorney meeting the requirements of item (1) and rendering immigration assistance services in the course of employment;
(3) a not-for-profit organization recognized by the Board of Immigration Appeals under 8 C.F.R. 292.2(a) and employees, of those organizations accredited pursuant to 8 C.F.R. 292.2(d); and
(4) an organization employing or desiring to employ an alien, where the organization, its employees, or its agents provide advice or assistance in immigration matters to alien employees or potential employees without compensation from the individuals to whom this advice or assistance is provided.
(C) Nothing in this chapter regulates a business to the extent that this regulation is prohibited or preempted by federal law.
(D)(1) A person performing the services described in this chapter shall obtain a business license from the office of the Secretary of State and as may be required by a local governing authority.
(2) The initial application for license made to the Secretary of State must be accompanied by an application fee of two hundred dollars, a license fee of one hundred dollars, and verification of a surety bond of five thousand dollars.
(3) The secretary shall issue the initial license thirty days following receipt of the application unless there is reason to believe, on the basis of a complaint and investigation, that the applicant is not in compliance with this chapter. The application for a license must be denied and the license fee refunded if the secretary determines that the applicant is not in compliance. The application fee must not be refunded.
(4) The licensee is responsible for renewing the license during the first January after the initial application, at which time licenses are issued for two years beginning January first through December thirtieth. Licenses must be renewed biennially.
(5) For subsequent renewals, the secretary shall mail annual license renewal forms to the last known address of each licensee by November first. If license renewal forms are not received by a licensee for any reason, the licensee shall request a license renewal form from the secretary's office. Every licensee shall file a biennial license renewal in a form and manner suitable to the secretary, postmarked not later than the last day of December. The renewal form must be accompanied by a renewal fee of one hundred dollars. If a license renewal form is not received by the secretary's office the first week of January, the secretary shall notify the licensee in writing that the licensee shall pay a late penalty of one hundred dollars and that the licensee has thirty days from the date of notice to comply with licensing requirements. If compliance is not met within the specified time, the secretary shall deny license renewal, return the license fee, and notify the business to cease operation.
(6) If a written complaint by a person to the secretary reveals that a licensee or firm is not in compliance with this chapter, the secretary shall notify the licensee of the alleged violation in writing and allow thirty days from the date of notice for response to and compliance with this chapter. If a response is not received within thirty days, the secretary shall investigate the alleged violation and, if the licensee or firm is found to be in violation of this chapter, shall deny or revoke the license.
(7) The aggregate liability of the surety for all breaches of the bond may not exceed the sum of the bond. The surety on the bond may cancel the bond upon giving thirty days' written notice to the secretary for a breach of condition occurring after the effective date of the cancellation. Failure to maintain a surety bond in force with the secretary constitutes disqualification for retaining a license. The secretary shall allow ten working days after notification to the licensee for requalification before revoking the license. The business may not operate until proof of surety bond is established with the secretary.
(8) All claims or suits brought against a licensee may be brought in the name of the person damaged upon the bond deposited with the secretary and may be transferred and assigned as other claims for damages in civil suits. The amount of damages claimed by the plaintiff, and not the penalty designated in the bond, determines the jurisdiction of the court in which the action is brought. If a licensee has left the State with intent to defraud his creditors or to avoid the service of a summons in an action brought pursuant to this chapter, service must be made upon the surety. A copy of the summons must be mailed to the last known post office address of the residence of the licensee as shown by the records of the secretary.
(9) If a licensee relocates his offices before filing the annual renewal notice, he shall submit a written notice of the change of address to the secretary, containing a notarized statement that the new location conforms to licensing requirements.
(10) If a licensee ceases to operate or goes out of business, he shall notify the secretary in writing of the action and return the license to the secretary.
(E) A person who provides or offers immigration assistance services and who is not exempted pursuant to the provisions of this chapter shall post signs at his or her place of business setting forth information in English and in every other language in which the person provides or offers to provide immigration assistance services. Each language must be on a separate sign. Signs must be posted in a location where the signs will be visible to customers. Each sign must be at least twelve inches by seventeen inches and must contain the following statement: 'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.'
(F) Each person engaged in immigration assistance service who is not an attorney who advertises immigration assistance service in a language other than English, whether by radio, television, signs, pamphlets, newspapers, or other written communication, with the exception of a single desk plaque, shall include in the document, advertisement, stationery, letterhead, business card, or other comparable written material the following notice in English and the language in which the written communication appears. This notice must be of a conspicuous size, if in writing, and must state: 'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.' If the advertisement is by radio or television, the statement may be modified but must include substantially the same message.
(G) A person who provides or offers immigration assistance service and who is not exempted pursuant to the provisions of this chapter shall not, in any document, advertisement, stationery, letterhead, business card, or other comparable written material, literally translate from English into another language terms or titles including, but not limited to, notary public, notary, licensed, attorney, lawyer, or another term that implies the person is an attorney.
(H) Violations of this chapter may result in a civil fine of up to one thousand dollars per violation. A fine charged pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal penalties.
(I) A violation of this chapter is per se a violation of the South Carolina Unfair Trade Practices Act as contained in Chapter 5 of Title 39.
(J) A person engaged in providing immigration services who is not exempted pursuant to the provisions of this chapter may not do the following:
(1) accept payment in exchange for providing legal advice or other assistance that requires legal analysis, legal judgment, or interpretation of the law;
(2) refuse to return documents supplied by, prepared on behalf of, or paid for by the customer upon the request of the customer. These documents must be returned upon request even if there is a fee dispute between the immigration assistant and the customer;
(3) represent or advertise, in connection with assistance in immigration matters, other titles or credentials including, but not limited to, 'notary public' or 'immigration consultant', that could cause a customer to believe that the person possesses special professional skills or is authorized to provide advice on an immigration matter, provided that a certified notary public may use the term 'notary public' if the use is accompanied by the statement that the person is not an attorney; the term 'notary public' may not be translated to another language;
(4) provide legal advice, recommend a specific course of legal action, or provide other assistance that requires legal analysis, legal judgment, or interpretation of the law; or
(5) make a misrepresentation or false statement, directly or indirectly, to influence, persuade, or induce patronage.
(K) A person who violates a provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than one year."
SECTION 2. This act takes effect upon approval by the Governor.
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