State Statutes That Regulate Immigration Assistance

Immigration law is entirely federal, which is why states cannot make it easier or harder to obtain a visa, cannot create their own categories of relief, and cannot decide who may appear before a federal agency. What a state can do is regulate a business that operates within its borders and sells a service to its residents, and that is exactly what the immigration assistance statutes do. They are consumer protection measures wearing immigration clothing, and understanding them that way explains both their shape and their limits.

What the statutes require

The statutes vary in detail and converge in structure. Nearly all of them build the same five requirements, and a provider operating without them is generally in breach whatever else they have done.

Registration. A person who provides immigration assistance services for compensation, and who is not an attorney or an accredited representative, must register with a designated state office. Registration typically requires identifying information, a background disclosure, a fee, and in several states a criminal history check. The register is public in most states, which means a client can check before paying — a check that takes minutes and is almost never done.

A surety bond. Registration is generally conditioned on posting a bond, held for the benefit of clients harmed by the provider's conduct. Amounts vary from a few thousand dollars to fifty thousand or more, and a bond that has lapsed usually suspends the registration automatically. The bond is the only asset many of these businesses have, and it is the practical target of a client claim.

A written contract. This is the most substantive requirement and the most frequently breached. The typical provision requires a written agreement, in English and in the language in which the services were negotiated, describing each service to be performed, stating the fee for each service separately, stating that documents will be returned on request, and giving the client a right to cancel within a stated period. A provider working on an oral arrangement has already broken the statute before doing anything else.

Mandatory disclosures. Statutes commonly require a conspicuous notice, in the office and in the contract, stating that the provider is not an attorney and may not give legal advice. Several require the notice in specified languages and at a specified size. Many also prohibit the terms notario, notario publico and immigration consultant in advertising, precisely because those terms carry the implication the statute is trying to defeat.

Prohibited conduct. A list of things the provider may not do: give legal advice, select forms, hold themselves out as authorized to represent, retain original documents, promise or guarantee an outcome, charge for blank government forms, or claim a special relationship with any government agency. The last of these is common in practice and is treated seriously.

What the statutes cannot reach

The limits are as important as the requirements, because clients frequently expect these statutes to do things they cannot.

They cannot make a non-lawyer able to represent anyone. Representation before the federal immigration agency and the immigration courts is governed federally, and a state registration confers no representation authority whatever. A registered provider who tells a client they are now authorized to appear has misdescribed a business registration as a professional qualification.

They cannot fix a filing. A state statute can compel the return of documents, a refund, or damages; it cannot withdraw an application, reopen a denial or restore an option that the filing consumed. The federal consequences are addressed federally, which is the subject of recovering from an unauthorized preparer.

They cannot regulate attorneys, who are exempted because they are governed by their own state's bar rules and by the federal conduct rules for practitioners. That exemption is sensible and it also creates a gap: a person harmed by an attorney has a different route entirely, through the bar and through the federal disciplinary system, and it operates on different timescales.

They do not travel. A provider registered and bonded in one state has no standing in the next, and a client who moves cannot pursue the bond of a state they have left through the courts of the state they have arrived in without more. This is the same pattern that governs every other state determination in this subject.

Enforcement and remedies

Two enforcement routes generally run in parallel, and using both is usually better than choosing between them.

The public route is the state attorney general or the designated consumer protection agency, which can investigate, obtain injunctions, revoke registrations and impose civil penalties. Complaints there are free, do not require a lawyer, and are the mechanism that closes an operation down. They are slow from the individual client's perspective and are aimed at the pattern rather than at the single case, which is precisely why an individual complaint matters: the pattern is assembled out of them.

The private route exists in most states and is frequently more useful than clients expect. Statutes commonly provide for actual damages, statutory damages set at a multiple of the fees paid or at a fixed sum per violation, recovery of attorney's fees, and in some states treble damages for willful conduct. Because the fee-shifting provision makes a small claim economically viable, these are among the few consumer claims a lawyer will take on modest sums.

The bond sits behind both. A claim against the bond is generally made by notifying the surety and the state office, and it does not require a judgment first in every state, though a judgment strengthens it considerably.

What makes any of this work is documentation gathered at the time. The contract, the receipts, the copies of what was filed, the advertisement that used a prohibited term, and a note of what was said. A client who kept those has a straightforward claim under a statute with fixed requirements. A client who did not is left arguing about recollection, and the statute's precision — which is its great strength — becomes unusable. Where the filing itself has gone wrong, the federal repair and the state claim should be run separately and in that order of urgency, with attorneys who advise on state regulation of immigration assistance able to say which of the two clocks is shorter.

Using the statute before anything goes wrong

The most valuable use of these statutes is preventive, and it takes very little effort.

Check the register before paying. Where the state maintains a public list of registered providers, absence from it is decisive: an unregistered provider taking money is already violating the statute, and nothing that follows is likely to be better.

Ask for the contract before agreeing to anything. A provider who works without a written agreement, or who produces one only in English when the conversation was in another language, has revealed what kind of operation it is. The contract is also the document that later defines what was promised.

Read the fee schedule. Statutes generally require each service to be priced separately, which makes it visible when a large sum is being charged for filling in a form. It also makes it visible when a fee is being charged for a government form that is free.

Establish, in one question, which category the person is in: attorney, accredited representative, or registered preparer. The three have entirely different authority, and the distinction is set out in the difference between a preparer and a representative. A person unwilling to answer that question plainly has answered it, and the mismatch between the title and the office is the whole subject of what a notario may and may not do.