The Next Immigration Wave: What it means to Notaries

(Originally published in the April 2015 issue of The National Notary.)

Historically, only a tiny fraction of Notaries have been directly involved in immigration-related matters. However, in light of the fact that the U.S. is in the midst of an historical influx of immigrants, it’s likely that a much larger chunk of the nation’s 4.4 million Notaries will be handling notarizations for foreign-born residents in the not-too-distant future.

That will be especially true if President Obama’s executive order reshaping U.S. immigration policy survives a court challenge from more than two dozen states.

The executive order outlines a plan to provide work authorization and temporary residency for qualifying undocumented immigrants. Like native-born Americans, they will conduct financial transactions, purchase homes and vehicles and fill out forms and permission slips so their children can participate in school activities — all transactions which will increase the need for notarizations.

In any event, whether you work in a retail or financial services environment, or as a mobile Notary, it is highly likely that you will encounter signers from other countries who may bring any number of issues to the signing table, including language barriers, identification challenges and the risk of the unauthorized practice of law.

Consider the following:

• The current immigration explosion began in 1970, when the foreign-born population made up only 4.7 percent of the total — the lowest level on record.
• The U.S. Census Bureau now estimates that there are 43.3 million foreign-born residents in the U.S. — or nearly 13.5 percent of the total population, including an estimated 12 million undocumented immigrants.
• The foreign-born population is projected to grow roughly three times faster than the native-born population through the next three decades.

As the national landscape of immigration policy continues to evolve, it’s important to know how you can avoid common — but potentially harmful — mistakes and how to provide notarial services to immigrant communities “the right way,” which can grow your business and help establish trust with your customers.

Verifying identity for undocumented signers

Immigrants — undocumented or not — often lack the traditional forms of identification needed to establish satisfactory evidence of identity for a notarization.

Many only possess IDs issued in their home countries, which generally are in their native language and may be unfamiliar to you. If you can’t understand the information on the ID, how can you rely on it to verify your signer’s identity?

Complicating matters, immigrants also often lack birth certificates or other source documents that would enable them to obtain IDs in the U.S. But that doesn’t mean you always have to turn them away empty-handed; there are other options.

Every state but California permits Notaries to rely on their personal knowledge of signers to verify their identity, so you can refer signers to Notaries they know. A number of states allow signers without ID to bring two credible witnesses. In general the witnesses possess acceptable ID, know the signer and verify the signer’s identity.

One of the more common IDs immigrants present is a consular identification card that is obtained from embassies or consulates of the immigrant’s home country. However, consular identification cards, known in Spanish as "matricula consular" IDs, have been criticized by law enforcement agencies in the past as lacking thorough security and screening procedures.

While for over a decade major U.S. banks have allowed immigrants to open bank accounts with consular ID cards, these IDs aren’t universally acceptable for notarization.

Currently, only Nevada and Illinois specifically say that matricula cards are acceptable. The Secretaries of State of California, Colorado and Oregon have warned its Notaries that they cannot rely on a matricula ID to verify the identity of a signer. Notaries in these and many other states have to ask for alternative IDs.

And yet, other states give Notaries wide discretion to decide what ID is acceptable, so accepting a matricula card is a judgment call.

To help overcome the identification obstacle, a number of states have started issuing IDs (such as driver’s licenses) to immigrants who lack the types of proof of identity — such as birth certificates — required of native-born residents. But this has raised concerns of identity fraud. In New Mexico, for instance, authorities have shut down numerous scams selling fraudulent IDs to immigrants around the country.

These IDs often come with limits. Illinois, Utah and Nevada issue a special license for undocumented drivers, but specify that the license is for driving only and may not be used for identification purposes. On January 1, 2015, California became the latest state to issue a special driver’s license to undocumented immigrants. The special licenses are marked with the words “Federal Limits Apply” and are acceptable as proof of a signer’s identity for notarization.

Overcoming language barriers

When offering services to immigrant signers, be prepared for possible language issues. You are likely to encounter signers whose English skills are limited or who do not speak English at all. If you are fluent in a language the signer understands, you can communicate in that language instead. However, if you and the signer can’t find a way to communicate directly, an alternative is necessary.

The best solution is to refer the signer to a reputable Notary who is fluent in the language.

After all, most states do not permit Notaries to use a third-party interpreter to communicate with a signer because of the risk that a dishonest interpreter may not correctly convey what is being said between the signer and the Notary.

Arizona is an exception, allowing Notaries and signers to communicate through a translator who is physically present with the signer and Notary at the time of notarization.

Of course, communicating with the signer isn’t the only language issue. What happens when your client has a document written in an unfamiliar language? In such situations, be sure to follow state law or the recommendations of your state Notary-regulating agency. For example, North Dakota requires a foreign language document to include a permanently affixed, accurate English translation in order to be notarized. And Arizona law states that documents must be signed in characters the Notary can read and understand — otherwise, the Notary cannot notarize the signature.

Avoiding the unauthorized practice of law

Changes in immigration policy tend to attract con artists and phony “service providers” seeking to take advantage of immigrants hoping to benefit from the new policy.

Most states have laws in place restricting how immigration service providers and Notaries advertise their services in foreign languages. These help prevent con artists from advertising fraudulent legal assistance to immigrants.

Scammers aren’t the only ones who can cross the line, of course. Because immigrants often misunderstand the role of U.S. Notaries, they are more likely to ask their local Notary for advice with their affairs. “There are well-intentioned Notaries in the community who want to be helpful to immigrants, but the law doesn’t allow them to even help fill out forms,” says Reid Trautz, Director of Practice and Professionalism with the American Immigration Lawyers Association (AILA).

Unauthorized assistance — even suggesting what form an immigrant signer needs or helping complete information on a form — is a serious breach of law and ethics unless you are an attorney. “Don’t try to take on more responsibility than you’re allowed to under the immigration system and U.S. laws,” Trautz says.

“Immigration law and regulation is very unforgiving. If you do something wrong even inadvertently — a box is checked wrong, or a question is answered the wrong way — it can come back to prevent a person from ever getting the status they are seeking,” says Trautz.

The immigration process is extremely lengthy, and it can be years before an error resulting from unauthorized advice is discovered. By then it’s too late to remedy the situation, Trautz says.

He suggests that Notaries may assist immigrants in a safer and more effective way by referring signers with questions about the immigration process to a qualified, reputable immigration attorney or accredited specialist.

Building trust with immigrant signers

The rapid growth of the immigrant population will create opportunities for Notaries who can build relationships and establish trust with immigrants.

Still, immigrants are wary about doing business with strangers because of the large number of scammers trying to take advantage of them, says Dr. Jay Gonzalez, Professor of Government at Golden Gate University and a former Commissioner for Immigrant Rights with the city and county of San Francisco.

“Building trust is the key,” Gonzalez says. “I would suggest connecting with trusted immigration support groups, churches and volunteer organizations.” By networking and volunteering with legitimate community groups, you can demonstrate your reliability and build your reputation, he says.

Immigrant signers will remember Notaries who follow the law and refer signers to the right people who can help them, agrees Trautz. “You won’t always get the fee, but you will have helped that person, and that business will come back to you because you did the right thing.”

“There are millions of immigrants out there looking for necessary services,” says Trautz. “Someone is bound to knock on your door that is a fit for your business model.”

It’s important to know how you can avoid common but potentially harmful mistakes and how to provide notarial services to immigrant communities “the right way.”

Immigrants often misunderstand the role of U.S. Notaries, so they are more likely to ask you for advice with their affairs.

David Thun is the Assistant Managing Editor with the National Notary Association.

Related Articles:

Hotline Tip: Can I notarize for non-U.S. citizens?

Additional Resources:

Important differences between Notaries and Notarios

NNA Hotline

ID Checking Guide: International Edition