PRO: It appears that this proposal is intended to provide protection for residents in this state who seek information about naturalization and immigration, and do not speak English. The bill is intended to provide a registry of qualified persons who can assist them with the forms and help to overcome the language barrier in dealing with immigration agencies, and to specify certain duties, responsibilities, and penalties for violation of the act.

Con: It is not readily apparent that this regulation belongs with this bureau, given the complexity of federal immigration laws, or that it is even enforceable. The bill puts responsibility on the department to provide a list for the public, but provides no real direction about the purpose of the registry. It specifically exempts a large number of people, and makes no provision for getting names off the registry if they are found in violation or are not performing services as required. The only action available to the department is a "Cease and Desist" (C & D) order for specific violations, which has no effect, as there are no penalties available to the department for violations. Jurisdiction is given to so many agencies that it will be confusing for both the agencies and the consumer to determine who has jurisdiction if a person violates the act. The registry itself is so limited that it may not provide the assistance intended by this legislation.

Fiscal Information: Estimated costs to the department for the first year of administering this bill, as written are estimated to be.

Discussion

Concerns:
1. This bill generates more questions than it answers. This Bureau has no expertise in immigration matters, and will not have the expertise to make judgments about whether a person is able to act competently and responsibly in this capacity, especially since there are no minimum requirements, other than a bond. The bill also makes the department responsible to determine whether an applicant is exempt from the registration requirement, or is required to register.

2. Attorney General advice might be sought regarding the burdens a State could place on persons related to immigration matters as immigration falls under the purview of Congress and the federal government, raising possible State rights regarding regulatory and enforcement issues.

3. Section 9(1) calls for a "fully functional program" within 90 days. It is questionable whether this agency is able have all facets up and running in the 90 day period, even if investigative processes of some sort might be eventually required, due to the nature of priorities within the Department and the Department of Information Technology, printing costs, staffing costs, and the availability of funds.

4. If this is intended to be a public protection bill, rather than creating this whole new administrative organization, with so many exemptions and multiple jurisdictions, and, if another agency is already providing regulatory services that could adequately protect the public, such as Attorney General Consumer Protection, one or more of the following options might provide a better solution:

• Strengthen existing consumer protection laws rather than create a new one.
•Strengthen existing codes.
•Provide consumer education programs to educate the public about contracts, ways to protect themselves from unscrupulous practitioners, and how to determine that a practitioner is qualified. Publicize existing consumer protection assistance, such as Better Business Bureau, local government services, and other agencies.

Enforcement:

1. Section 21 places responsibility for certain enforcement actions for violations of the Act upon the Department of Attorney General (DOAG). So, investigative resources of both DLEG and the DOAG may need to be committed, or at least coordinated, to determine if there is enough evidence to seek civil as well as criminal sanctions for proscribed conduct. With limited resources in this time of budgetary restraints, and no reimbursement to the agencies for their efforts, this is perhaps not a good use of resources.

2. This also calls attention to the issue of local prosecutors foregoing criminal prosecution. While comments on behalf of the DOAG or a local prosecutor cannot be made, it may be expected that the DOAG, or a local prosecutor, might look to the DLEG for reimbursement of prosecution costs in some form, or may decline to prosecute since there is no apparent cost benefit (or allowable reimbursement to DOAG) in the Act.

3. For practice violations mentioned in the bill, a consumer may file against the bond. On the other hand, Section 21(4) allows a "person injured" to bring a separate civil action for equitable relief and/or damages. Section 21(5) allows for any person to bring an equitable action in court on behalf of the "general public" and, if prevailing, the person can be awarded reasonable attorney fees and costs. It can be argued these provisions allow someone to proceed against a violator of the Act without the assistance of the DLEG, DOAG, or local prosecutor.

4. However, the bureau's experience is that the maintenance of a civil suit is costly, so an alleged victim will pressure this agency to step in. Indeed, note Section 21(7) seemingly first requires the DLEG to issue a C&D Order (for noticing purposes) before other civil and criminal provisions in Section 21(1)-(6) apply for certain violations. Hence, for any complaint filed with the DLEG, the Bureau's Licensing and Enforcement Divisions are likely to be involved.

Unregistered Activity:

1. There are an unknown number of potential complaints about unregistered persons that could come flowing into the agency. If the current immigration practices on a national level are changed, as proposed by the current national administration, Michigan would be one of the States to see a rush in terms of documenting aliens for work and residence purposes (because of its farming community and other manufacturing endeavors). Hence, there could be significant burdens on the agency's investigative resources, e.g., before a C&D can be issued, see Section 21(7). Of course, this goes to costs, staffing, priorities, etc. And unfortunately without numbers there is no way of defining impact from a fiscal analysis view. This, however, is pointed out as a potential "hidden" cost of the proposed Act, especially if costs eventually and substantially exceed what registrants must pay, e.g., a one-time $250 registration fee. See Section 9(3)

Licensing:

1. Generally, "registration" does not mandate compliance, but is a voluntary matter for those who wish to show a specific credential and more than minimum requirements to practice an occupation for which one does not otherwise need to be licensed. This act does not make that provision; instead, it is a criminal violation to fail to register. Yet, the bill lists a multitude of exemptions, so how would persons reviewing the list know about other sources of assistance for immigration matters, and how can the department determine who is required to register?

2. In some respects, it might actually be better to require everyone to be registered if they will provide the defined services and not allow for any exemptions. This way, you are either registered or not, which can be more easily and quickly verified without too much commitment of investigative resources. Perhaps, for the proposed exempted classes of persons, registration is still mandatory with a reduced fee amount or no fee.

3. Per Sec. 7(2) & (3), the act requires that persons who want to be registered as Immigration Clerical Assistants (ICAs) need only apply to the department with their identification/contact information, pay a fee, and have a bond. There is no minimum age, education, or experience identified as being required. It seems that there should be more requirements for registration if the goal is to protect the welfare of Michigan's citizenry, and registration is mandatory.

4. There should be some provision to take a name off the registry if a registrant is found in violation of the act, a criminal penalty is issued against a registrant, or if a successful claim against the bond is made.

5. The exemptions for registration are broad and in all likelihood reduce the number of persons who will be required to become a registrant. However, to ensure someone meets one of the exemptions if an allegation is received that a person is not properly registered will require a significant commitment of investigative resources by the Department. For example, to determine if a Section 5(c) exemption applies, may require any number of documents to be obtained and reviewed. [Note, the Act does not provide for agency subpoena authority but if a C&D is issued, the burden of producing records at a hearing on appeal of a C&D should fall to a Respondent. However, again the DLEG's limited hearing and legal resources would be expended. Department Representation would have to be provided at such an appeal hearing by the Department of Attorney General because the agency is not granted authority in the Act to provide a Department Representative. Presumably, any enforcement action, even limited to issuance of a C&D and processing of an appeal, also falls to this Bureau's enforcement division.

6. Provide penalties for violation of a C&D by the department, or, in the alternative, remove the C & D language from the statute, and call it a "Notice of Incomplete Registry Information." The purpose of the language appears to be intended to put a registrant on notice, that if the required information is not provided within a certain timeframe, the name will be removed from the registry. There will need to be a provision for reinstating registry information, if, at a later date the registrant does update the required information, unless it is intended that they simply reapply.

Fees:

1. Sec. 9(3) speaks of a one-time registration fee of up to $250.00. Does this mean that persons are registered, in effect, for life? Are there no specific time frames for the registration of an individual ICA to be active, no renewal of registrations? It would be preferable, as a public protection statute, to require renewal, at a somewhat lesser fee, so that users of the list would know whether the person is still active, and offering services.

2. A renewal fee could also provide ongoing source of funds for the department to maintain the registry, as well. A small fee for updating changes to the registry could also provide ongoing funds to maintain the registry.

Rulemaking or statutory revisions: Allow for rulemaking by the department, if it cannot be done by statute, to address such issues as:

1. Definition needed for Sec. 11(d) as to what is a "reasonable and fair fee."

2. Definition needed for Sec. 17(1)(i) as to what is a "grossly excessive" price for services. Evaluating what is "grossly excessive" will be impossible without some "expert" evaluation/valuation of the services provided. This applies to the initial investigative stages as well as if the matter were to proceed to an agency hearing regarding the appeal of a C&D or if the matter were to proceed civilly or criminally in court.

3. The language at Sec. 17(1)(k) is unclear. What does it mean by indicating that an ICA shall not "fail to reveal facts material to the services provided in light of representations of fact made in a positive manner"?

4. Sec. 17(1)(l): Does this language mean that ICAs may only solicit to provide their services to persons with whom they have had a prior relationship? It's unclear, and why would anyone perform services for a fee without doing so for financial gain or profit? Determining a person's primary reason for doing something is difficult.

5. Sec. 21(8) seems to be a contradiction within itself, because it implies that certain ICAs are exempted from complying with the act, but they must comply with the act by applying for registration, being entered into the registry and complying with the bonding requirement and the service charge requirements. So it seems such ICAs have to comply with the act but they are exempt from it simultaneously? Why should a non-profit corporation be exempt from civil or criminal actions, if they are in violation of section 21?

6. There should be language requiring that ICAs cooperate with the Department's investigation to determine if an ICA is complying with the act and that failure to cooperate is a violation of the act.

7. As it appears that the bill allows an ICA to be other than a natural person, provide a means for the department to ensure that the entity is legitimate and authorized to do business in Michigan, such as providing a copy of the articles of incorporation, etc. There is no rulemaking authority given to the department to require this information. Alternatively, it would be preferable to register only individuals, rather than organizations, for monitoring and enforcement purposes, as well as to determine who must be registered, and who is not required to be registered.

8. What is the difference between the services that an ICA is to provide and what services are exempt, in order for the Department to effectively administer the act?

Sec. 3(h) defines the services to be provided by the ICA to include "Transcribing responses onto government agency forms on behalf of a consumer relating to an immigration matter" and "Translating information from a government agency form to a language other than English and translating responses on behalf of a consumer relating to an immigration matter.” However, per Sec. 5 (i) & (ii) it appears that some of the same services to be provided are exempt from the act, i.e. "Translating documents from a language other than English into English in an immigration matter." It is very difficult to ascertain what the difference is in these services. Perhaps there is a legally defined difference between the services, but this is not clear in the reading of the act.

Sec. 5(c) also specifies a person who is exempt from the act as one who is "a reputable person of good moral character who has a personal, family, or business relationship with the person subject to the immigration matter..." There should be a definition in the act of what constitutes a "reputable person of good moral character". Such a definition would better enable the department to make a determination whether the applicant is exempt.

9. Is it wise to establish fee schedules as enumerated in section 11? With inflation, seemingly DLEG will eventually be faced with arguments to support increased fees at some point. How can this be done in an effective manner? Perhaps, allow for rules to establish fees or delete a fee schedule and allow "reasonable" fees to be charged based on market/economic factors.

10. The language at Sec. 7(2) should be changed to read "...the application shall include... and, if the applicant is an organization with legal rights and duties, the name of a responsible individual who can be personally contacted".

The department needs to be able to communicate with the responsible individual regarding compliance with the act.