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Public Act 093-1001


 

Public Act 1001 93RD GENERAL ASSEMBLY



 


 
Public Act 093-1001
 
SB2548 Enrolled LRB093 19533 JAM 45273 b

    AN ACT concerning notaries public.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Illinois Notary Public Act is amended by
changing Sections 1-104, 2-102, 3-103, and 3-104 as follows:
 
    (5 ILCS 312/1-104)  (from Ch. 102, par. 201-104)
    Sec. 1-104. Notary Public and Notarization Defined.
    (a) The terms "notary public" and "notary" are used
interchangeably to mean any individual appointed and
commissioned to perform notarial acts.
    (b) "Notarization" means the performance of a notarial act.
    (c) "Accredited immigration representative" means 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 under 8 C.F.R. 292.2(d).
(Source: P.A. 84-322.)
 
    (5 ILCS 312/2-102)  (from Ch. 102, par. 202-102)
    Sec. 2-102. Application. Every applicant for appointment
and commission as a notary shall complete an application form
furnished by the Secretary of State to be filed with the
Secretary of State, stating:
    (a) the applicant's official name, which contains his or
her last name and at least the initial of the first name;
    (b) the county in which the applicant resides or, if the
applicant is a resident of a state bordering Illinois, the
county in Illinois in which that person's principal place of
work or principal place of business is located;
    (c) the applicant's residence address and business
address, if any, or any address at which an applicant will use
a notary public commission to receive fees;
    (d) that the applicant has resided in the State of Illinois
for 30 days preceding the application or that the applicant who
is a resident of a state bordering Illinois has worked or
maintained a business in Illinois for 30 days preceding the
application;
    (e) that the applicant is a citizen of the United States or
an alien lawfully admitted for permanent residence in the
United States;
    (f) that the applicant is at least 18 years of age;
    (g) that the applicant is able to read and write the
English language;
    (h) that the applicant has never been the holder of a
notary public appointment that was revoked or suspended during
the past 10 years the applicant's commission as notary (if any)
has not been revoked;
    (i) that the applicant has not been convicted of a felony;
and
    (j) any other information the Secretary of State deems
necessary.
(Source: P.A. 91-818, eff. 6-13-00.)
 
    (5 ILCS 312/3-103)  (from Ch. 102, par. 203-103)
    Sec. 3-103. Notice.
    (a) Every notary public who is not an attorney or an
accredited immigration representative who advertises the
services of a notary public 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: post or otherwise include with
such advertisement a notice in English and the language in
which the written communication advertisement appears. This
notice shall be of a conspicuous size, if in writing, and shall
state: "I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN
ILLINOIS AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL
ADVICE". If such advertisement is by radio or television, the
statement may be modified but must include substantially the
same message.
    A notary public shall not, in any document, advertisement,
stationery, letterhead, business card, or other comparable
written material describing the role of the notary public,
literally translate from English into another language terms or
titles including, but not limited to, notary public, notary,
licensed, attorney, lawyer, or any other term that implies the
person is an attorney. To illustrate, the word "notario" is
prohibited under this provision. Literal translation of the
phrase "Notary Public" into a language other than English is
prohibited. For the purposes of this subsection, "literal
translation" of a word or phrase from one language to another
means the translation of a word or phrase without regard to the
true meaning of the word or phrase in the language which is
being translated.
    Failure to follow the procedures in this Section shall
result in a fine of $1,000 for each written violation. The
second violation shall result in suspension of notary
authorization. The third violation shall result in permanent
revocation of the commission of notary public. Violations shall
not preempt or preclude additional appropriate civil or
criminal penalties.
    (b) All notaries public required to comply with the
provisions of subsection (a) shall prominently post at their
place of business as recorded with the Secretary of State
pursuant to Section 2-102 of this Act a schedule of fees
established by law which a notary public may charge. The fee
schedule shall be written in English and in the non-English
language in which notary services were solicited and shall
contain the disavowal of legal representation required above in
subsection (a), unless such notice of disavowal is already
prominently posted.
    (c) No notary public, agency or any other person who is not
an attorney shall represent, hold themselves out or advertise
that they are experts on immigration matters or provide any
other assistance that requires legal analysis, legal judgment,
or interpretation of the law unless they are a designated
entity as defined pursuant to Section 245a.1 of Part 245a of
the Code of Federal Regulations (8 CFR 245a.1) or an entity
accredited by the Board of Immigration Appeals.
    (d) Any person who aids, abets or otherwise induces another
person to give false information concerning immigration status
shall be guilty of a Class A misdemeanor for a first offense
and a Class 3 felony for a second or subsequent offense
committed within 5 years of a previous conviction for the same
offense.
    Any notary public who violates the provisions of this
Section shall be guilty of official misconduct and subject to
fine or imprisonment.
    Nothing in this Section shall preclude any consumer of
notary public services from pursuing other civil remedies
available under the law.
    (e) No notary public who is not an attorney or an
accredited representative shall accept payment in exchange for
providing legal advice or any other assistance that requires
legal analysis, legal judgment, or interpretation of the law.
    (f) Violation of subsection (e) is a business offense
punishable by a fine of 3 times the amount received for
services, or $1,001 minimum, and restitution of the amount paid
to the consumer. Nothing in this Section shall be construed to
preempt nor preclude additional appropriate civil remedies or
criminal charges available under law.
    (g) If a notary public of this State is convicted of 2 or
more business offenses involving a violation of this Act within
a 12-month period while commissioned, or of 3 or more business
offenses involving a violation of this Act within a 5-year
period regardless of being commissioned, the Secretary shall
automatically revoke the notary public commission of that
person on the date that the person's most recent business
offense conviction is entered as a final judgment.
(Source: P.A. 85-593.)
 
    (5 ILCS 312/3-104)  (from Ch. 102, par. 203-104)
    Sec. 3-104. Maximum Fee.
    (a) Except as provided in subsection (b) of this Section,
the maximum fee in this State is $1.00 for any notarial act
performed.
    (b) Fees for a notary public, agency, or any other person
who is not an attorney or an accredited representative filling
out immigration legalization forms or applications related to
the Immigration Reform and Control Act of 1986 shall be limited
to the following as follows:
    (1) $10 per form completion $75 per person;
    (2) $10 per page for the translation of a non-English
language into English where such translation is required for
immigration forms $75 per person up to 4 persons per immediate
family, with no additional charge for a fifth or subsequent
person where all persons are legally related;
    (3) $1 for notarizing $10 per page for the translation of
a non-English language into English where such translation is
required for legalization forms;
    (4) $3 to execute any procedures necessary to obtain a
document required to complete immigration forms $1 for
notarizing; and
    (5) A maximum of $75 for one complete application $3 to
execute any procedures necessary to obtain a document required
to complete legalization forms.
    Fees authorized under this subsection shall not include
application fees required to be submitted with immigration
applications a legalization application in conformity with the
Immigration and Control Act of 1986.
    Any person who violates the provisions of this subsection
shall be guilty of a Class A misdemeanor for a first offense
and a Class 3 felony for a second or subsequent offense
committed within 5 years of a previous conviction for the same
offense.
    (c) Upon his own information or upon complaint of any
person, the Attorney General or any State's Attorney, or their
designee, may maintain an action for injunctive relief in the
court against any notary public or any other person who
violates the provisions of subsection (b) of this Section.
These remedies are in addition to, and not in substitution for,
other available remedies.
    If the Attorney General or any State's Attorney fails to
bring an action as provided pursuant to this subsection within
90 days of receipt of a complaint, any person may file a civil
action to enforce the provisions of this subsection and
maintain an action for injunctive relief.
    (d) All notaries public must provide receipts and keep
records for fees accepted for services provided. Failure to
provide receipts and keep records that can be presented as
evidence of no wrongdoing shall be construed as a presumptive
admission of allegations raised in complaints against the
notary for violations related to accepting prohibited fees.
(Source: P.A. 85-593.)
 
    Section 10. The Consumer Fraud and Deceptive Business
Practices Act is amended by changing Section 2AA as follows:
 
    (815 ILCS 505/2AA)
    Sec. 2AA. Immigration services.
    (a) "Immigration matter" means any proceeding, filing, or
action affecting the nonimmigrant, immigrant or citizenship
status of any person that arises under immigration and
naturalization law, executive order or presidential
proclamation of the United States or any foreign country, or
that arises under action of the United States Citizenship and
Immigration Services Immigration and Naturalization Service,
the United States Department of Labor, or the United States
Department of State.
    "Immigration assistance service" means any advice,
guidance, 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 any other assistance that
requires legal analysis, legal judgment, or interpretation of
the law relating to any immigration matter.
    "Compensation" means money, property, services, promise of
payment, or anything else of value.
    "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 receives
compensation from the employer on a commission basis or as an
independent contractor.
    "Reasonable costs" means actual costs or, if actual costs
cannot be calculated, reasonably estimated costs of such things
as photocopying, telephone calls, document requests, and
filing fees for immigration forms, and other nominal costs
incidental to assistance in an immigration matter.
    (a-1) The General Assembly finds and declares that private
individuals who assist persons with immigration matters have a
significant impact on the ability of their clients to reside
and work within the United States and to establish and maintain
stable families and business relationships. The General
Assembly further finds that that assistance and its impact also
have a significant effect on the cultural, social, and economic
life of the State of Illinois and thereby substantially affect
the public interest. It is the intent of the General Assembly
to establish rules of practice and conduct for those
individuals to promote honesty and fair dealing with residents
and to preserve public confidence.
    (a-5) The following persons are exempt from this Section,
provided they prove the exemption by a preponderance of the
evidence:
        (1) An attorney licensed to practice law in any state
    or territory of the United States, or of any foreign
    country when authorized by the Illinois Supreme Court, to
    the extent the attorney renders immigration assistance
    service in the course of his or her practice as an
    attorney.
        (2) A legal intern, as described by the rules of the
    Illinois Supreme Court, employed by and under the direct
    supervision of a licensed attorney and rendering
    immigration assistance service in the course of the
    intern's 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 under 8 C.F.R.
    292.2(d).
        (4) Any organization employing or desiring to employ an
    alien or nonimmigrant alien, where the organization, its
    employees or its agents provide advice or assistance in
    immigration matters to alien or nonimmigrant alien
    employees or potential employees without compensation from
    the individuals to whom such advice or assistance is
    provided.
    Nothing in this Section shall regulate any business to the
extent that such regulation is prohibited or preempted by State
or federal law.
    All other persons providing or offering to provide
immigration assistance service shall be subject to this
Section.
    (b) Any person who provides or offers to provide
immigration assistance service 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, such as 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 of
    the State of Illinois.
        (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.
        (11) Other services that the Attorney General
    determines by rule may be appropriately performed by such
    persons in light of the purposes of this Section.
    Fees for a notary public, agency, or any other person who
is not an attorney or an accredited representative filling out
immigration forms shall be limited to the maximum fees set
forth in subsections (a) and (b) of Section 3-104 of the Notary
Public Act (5 ILCS 312/3-104) The Attorney General may
promulgate rules establishing maximum fees that may be charged
for the services described in this subsection. The maximum fees
must be reasonable in light of the costs of providing those
services and the degree of professional skill required to
provide the services.
    No person subject to this Act shall charge fees directly or
indirectly for referring an individual to an attorney or for
any immigration matter not authorized by this Article, provided
that a person may charge a fee for notarizing documents as
permitted by the Illinois Notary Public Act.
    (c) Any person performing such services shall register with
the Illinois Attorney General and submit verification of
malpractice insurance or of a surety bond.
    (d) Except as provided otherwise in this subsection, before
providing any assistance in an immigration matter a person
shall provide the customer with a written contract that
includes the following:
        (1) An explanation of the services to be performed.
        (2) Identification of all compensation and costs to be
    charged to the customer for the services to be performed.
        (3) A statement that documents submitted in support of
    an application for nonimmigrant, immigrant, or
    naturalization status may not be retained by the person for
    any purpose, including payment of compensation or costs.
    This subsection does not apply to a not-for-profit
organization that provides advice or assistance in immigration
matters to clients without charge beyond a reasonable fee to
reimburse the organization's or clinic's reasonable costs
relating to providing immigration services to that client.
    (e) Any person who provides or offers immigration
assistance service and is not exempted from this Section, 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
service. Each language shall be on a separate sign. Signs shall
be posted in a location where the signs will be visible to
customers. Each sign shall be at least 11 inches by 17 inches,
and shall contain the following:
        (1) The statement "I AM NOT AN ATTORNEY LICENSED TO
    PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES
    FOR LEGAL ADVICE."
        (2) The statement "I AM NOT ACCREDITED TO REPRESENT YOU
    BEFORE THE UNITED STATES IMMIGRATION AND NATURALIZATION
    SERVICE AND THE IMMIGRATION BOARD OF APPEALS."
        (3) The fee schedule.
        (4) The statement that "You may cancel any contract
    within 3 working days and get your money back for services
    not performed."
        (5) Additional information the Attorney General may
    require by rule.
    Every 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. shall post or
otherwise include with such advertisement a notice in English
and the language in which the advertisement appears. This
notice shall be of a conspicuous size, if in writing, and shall
state: "I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN
ILLINOIS AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL
ADVICE." If such advertisement is by radio or television, the
statement may be modified but must include substantially the
same message.
    Any person who provides or offers immigration assistance
service and is not exempted from this Section 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 any other term that implies the person is
an attorney. To illustrate, the word "notario" is prohibited
under this provision. Literal translation of the word
"licensed" into a language other than English is prohibited.
For the purposes of this Section, "literal translation" of a
word or phrase from one language to another means the
translation of a word or phrase without regard to the true
meaning of the word or phrase in the language which is being
translated.
    If not subject to penalties under subsection (a) of Section
3-103 of the Notary Public Act (5 ILCS 312/3-103), violations
of this subsection shall result in a fine of $1,000. Violations
shall not preempt or preclude additional appropriate civil or
criminal penalties.
    (f) The written contract shall be in both English and in
the language of the customer.
    (g) A copy of the contract shall be provided to the
customer upon the customer's execution of the contract.
    (h) A customer has the right to rescind a contract within
72 hours after his or her signing of the contract.
    (i) Any documents identified in paragraph (3) of subsection
(c) shall be returned upon demand of the customer.
    (j) No person engaged in providing immigration services who
is not exempted under this Section shall do any of the
following:
        (1) Make any statement that the person can or will
    obtain special favors from or has special influence with
    the United States Immigration and Naturalization Service
    or any other government agency.
        (2) Retain any compensation for service not performed.
        (2.5) Accept payment in exchange for providing legal
    advice or any other assistance that requires legal
    analysis, legal judgment, or interpretation of the law.
        (3) 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.
        (4) Represent or advertise, in connection with the
    provision assistance in immigration matters, other titles
    of 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 notary public
    appointed by the Illinois Secretary of State 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;
    for example "notario" is prohibited.
        (5) Provide Give any legal advice, recommend a specific
    course of legal action, or provide any other assistance
    that requires legal analysis, legal judgment, or
    interpretation of the law concerning an immigration
    matter.
        (6) Make any misrepresentation of false statement,
    directly or indirectly, to influence, persuade, or induce
    patronage.
    (k) (Blank)
    (l) (Blank)
    (m) Any person who violates any provision of this Section,
or the rules and regulations issued under this Section, shall
be guilty of a Class A misdemeanor for a first offense and a
Class 3 felony for a second or subsequent offense committed
within 5 years of a previous conviction for the same offense.
    Upon his own information or upon the complaint of any
person, the Attorney General or any State's Attorney, or a
municipality with a population of more than 1,000,000, may
maintain an action for injunctive relief and also seek a civil
penalty not exceeding $50,000 in the circuit court against any
person who violates any provision of this Section. These
remedies are in addition to, and not in substitution for, other
available remedies.
    If the Attorney General or any State's Attorney or a
municipality with a population of more than 1,000,000 fails to
bring an action as provided under this Section any person may
file a civil action to enforce the provisions of this Article
and maintain an action for injunctive relief, for compensatory
damages to recover prohibited fees, or for such additional
relief as may be appropriate to deter, prevent, or compensate
for the violation. In order to deter violations of this
Section, courts shall not require a showing of the traditional
elements for equitable relief. A prevailing plaintiff may be
awarded 3 times the prohibited fees or a minimum of $1,000 in
punitive damages, attorney's fees, and costs of bringing an
action under this Section. It is the express intention of the
General Assembly that remedies for violation of this Section be
cumulative.
    (n) No unit of local government, including any home rule
unit, shall have the authority to regulate immigration
assistance services unless such regulations are at least as
stringent as those contained in this amendatory Act of 1992. It
is declared to be the law of this State, pursuant to paragraph
(i) of Section 6 of Article VII of the Illinois Constitution of
1970, that this amendatory Act of 1992 is a limitation on the
authority of a home rule unit to exercise powers concurrently
with the State. The limitations of this Section do not apply to
a home rule unit that has, prior to the effective date of this
amendatory Act, adopted an ordinance regulating immigration
assistance services.
    (o) This Section is severable under Section 1.31 of the
Statute on Statutes.
    (p) The Attorney General shall issue rules not inconsistent
with this Section for the implementation, administration, and
enforcement of this Section by January 1, 1995. The rules may
provide for the following:
        (1) The content, print size, and print style of the
    signs required under subsection (e). Print sizes and styles
    may vary from language to language.
        (2) Standard forms for use in the administration of
    this Section.
        (3) Any additional requirements deemed necessary.
(Source: P.A. 87-1211; 88-45; 88-644, eff. 9-9-94.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 8/23/2004