I 

108TH CONGRESS 

1ST SESSION H. R. 2899

To establish two new categories of nonimmigrant workers, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 25, 2003

Mr. KOLBE (for himself and Mr. FLAKE) introduced the following bill; which 

was referred to the Committee on the Judiciary, and in addition to the 

Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

A BILL

To establish two new categories of nonimmigrant workers, 

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Border Security and 

5 Immigration Improvement Act’’. 

6 SEC. 2. NEW NONIMMIGRANT WORKER VISA CATEGORIES. 

7 Section 101(a)(15)(H) of the Immigration and Na8 tionality Act (8 U.S.C. 1101(a)(15)(H)) is amended—
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1 (1) by striking ‘‘or (iii)’’ and inserting ‘‘(iii)’’; 

2 and 

3 (2) by striking ‘‘and the alien spouse’’ and in4 serting the following: 

5 ‘‘or (iv)(a) subject to section 218A, who is coming 

6 to the United States to fill a job opportunity for 

7 temporary full-time employment at a place in the 

8 United States; or (b) whose status is adjusted under 

9 section 251 and who (except in the case of a spouse 

10 or child provided derivative status) is employed in 

11 the United States; and, except as provided in sec12 tions 218A and 251, the alien spouse’’. 

13 SEC. 3. ADMISSION OF TEMPORARY H–4A WORKERS. 

14 (a) IN GENERAL.—Chapter 2 of title II of the Immi15 gration and Nationality Act (8 U.S.C. 1181 et seq.) is 

16 amended by inserting after section 218 the following: 

17 ‘‘ADMISSION OF TEMPORARY H–4A WORKERS

18 ‘‘SEC. 218A. (a) PETITION.—In the case of a petition 

19 under section 214(c) initially to grant an alien non20 immigrant status described in section 

21 101(a)(15)(H)(iv)(a), the Secretary of Homeland Secu22 rity—

23 ‘‘(1) shall impose a fee on the petitioning em24 ployer of—

25 ‘‘(A) $1000, in the case of an employer 

26 employing more than 500 employees; or 
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1 ‘‘(B) $500, in the case of any other em2 ployer; and 

3 ‘‘(2) shall approve the petition only after deter4 mining that the petitioning employer—

5 ‘‘(A) has satisfied the recruitment require6 ments of subsection (i); and 

7 ‘‘(B) has attested in such petition that the 

8 employer—

9 ‘‘(i) with respect to the employment 

10 eligibility confirmation system established 

11 under subsection (j)—

12 ‘‘(I) will use such system to 

13 verify the alien’s identity and employ14 ment authorization after such ap15 proval and before the commencement 

16 of employment; 

17 ‘‘(II) will advise the alien of any 

18 nonconfirmation with respect to the 

19 alien provided by such system; and 

20 ‘‘(III) will provide the alien an 

21 opportunity to correct the information 

22 in the system causing such noncon23 firmation before revoking the offer of 

24 employment in order that the require25 ment of subclause (I) is satisfied be-
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1 fore the commencement of employ2 ment; 

3 ‘‘(ii) will provide the nonimmigrant 

4 the same benefits, wages, and working con5 ditions provided to other employees simi6 larly employed in the same occupation at 

7 the place of employment; 

8 ‘‘(iii) will require the nonimmigrant to 

9 work hours commensurate with those of 

10 such other employees; 

11 ‘‘(iv) will not ask the nonimmigrant to 

12 refrain from accepting work for any com13 petitor of the employer; 

14 ‘‘(v) did not displace and will not dis15 place a United States worker (as defined 

16 in section 212(n)(4)) employed by the em17 ployer within the period beginning 90 days 

18 before and ending 90 days after the date 

19 of filing of the petition; and 

20 ‘‘(vi) otherwise will comply with all 

21 applicable Federal, State, and local labor 

22 laws, including laws affecting migrant and 

23 seasonal agricultural workers, with respect 

24 to the nonimmigrant. 

25 ‘‘(b) NONIMMIGRANT VISAS.—
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1 ‘‘(1) NO FEE.—Neither the Secretary of State, 

2 nor the Secretary of Homeland Security, shall au3 thorize the imposition of an application fee on an 

4 alien seeking a nonimmigrant visa under section 

5 101(a)(15)(H)(iv)(a) in an amount that exceeds the 

6 actual cost of processing and adjudicating such ap7 plication. 

8 ‘‘(2) BIOMETRIC IDENTIFIERS.—The Secretary 

9 of State and the Secretary of Homeland Security 

10 shall issue to aliens obtaining status under section 

11 101(a)(15)(H)(iv)(a) only machine-readable, tamper12 resistant visas and other travel and entry documents 

13 that use biometric identifiers. The Secretary of State 

14 and the Secretary of Homeland Security shall jointly 

15 establish document authentication standards and bi16 ometric identifier standards to be employed on such 

17 visas and other travel and entry documents from 

18 among those biometric identifiers recognized by do19 mestic and international standards organizations. 

20 ‘‘(3) PHYSICAL EXAMINATION.—Prior to the 

21 issuance of a nonimmigrant visa to any alien under 

22 section 101(a)(15)(H)(iv)(a), the consular officer 

23 shall require such alien to submit to a medical exam24 ination to ascertain whether such alien is ineligible 

25 to receive a visa on a health-related ground. 
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1 ‘‘(4) PRIORITY FOR VISITOR VISAS FOR IMME2 DIATE RELATIVES.—In the case of an alien who is 

3 the spouse, parent, son, or daughter of a non4 immigrant described in section 101(a)(15)(H)(iv), if 

5 the alien is applying for a nonimmigrant visa under 

6 section 101(a)(15)(B)—

7 ‘‘(A) the alien’s application shall be given 

8 priority; and 

9 ‘‘(B) notwithstanding sections 214(b) and 

10 291, in establishing that the alien has a resi11 dence in a foreign country which the alien has 

12 no intention of abandoning, the burden of proof 

13 required shall not be greater than a preponder14 ance of the evidence. 

15 ‘‘(5) VISITS OUTSIDE UNITED STATES.—Pursu16 ant to regulations established by the Secretary of 

17 Homeland Security, an alien having status as a non18 immigrant described in section 101(a)(15)(H)(iv)(a) 

19 may make brief visits outside the United States and 

20 may be readmitted without having to obtain a new 

21 visa. Such periods of time spent outside the United 

22 States shall not cause the period of authorized ad23 mission in the United States to be extended. 

24 ‘‘(c) PERIOD OF AUTHORIZED ADMISSION.—
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1 ‘‘(1) INITIAL PERIOD.—In the case of a non2 immigrant described in section 101(a)(15)(H)(iv)(a), 

3 the initial period of authorized admission as such a 

4 nonimmigrant shall be 3 years. 

5 ‘‘(2) RENEWALS.—

6 ‘‘(A) IN GENERAL.—The Secretary of 

7 Homeland Security may extend such period not 

8 more than once, in a 3-year increment. 

9 ‘‘(B) TREATMENT OF LONG-TERM EM10 PLOYEES.—In any case in which a non11 immigrant has held a job for 3 years or more, 

12 an extension under subparagraph (A) may be 

13 granted only upon the filing of a petition by the 

14 nonimmigrant’s employer establishing that—

15 ‘‘(i) not earlier than 2 months prior to 

16 such filing, the employer advertised the 

17 availability of the nonimmigrant’s job ex18 clusively to United States workers for not 

19 less than 14 days using the electronic job 

20 registry described in subsection (i); and 

21 ‘‘(ii) the employer offered the job to 

22 any eligible United States worker who ap23 plied by means of such registry and was 

24 equally or better qualified for such job and 

25 available at the time and place of need. 
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1 (C) NO FEES.—The Secretary of Home2 land Security shall not impose a fee on a peti3 tioning employer in the case of a petition to ex4 tend the stay of an alien having nonimmigrant 

5 status described in section 

6 101(a)(15)(H)(iv)(a). 

7 ‘‘(3) LOSS OF EMPLOYMENT.—

8 ‘‘(A) IN GENERAL.—Subject to subsection 

9 (e), any period of authorized admission of an 

10 alien having nonimmigrant status described in 

11 section 101(a)(15)(H)(iv)(a) shall terminate if 

12 the nonimmigrant is unemployed for 45 or more 

13 consecutive days. 

14 ‘‘(B) RETURN TO FOREIGN RESIDENCE.—

15 An alien whose period of authorized admission 

16 terminates under subparagraph (A) shall be re17 quired to return to the country of the alien’s 

18 nationality or last residence. 

19 ‘‘(C) VISA VALIDITY.—An alien whose pe20 riod of authorized admission terminates under 

21 subparagraph (A), and who returns to the 

22 country of the alien’s nationality or last resi23 dence under subparagraph (B), may reenter the 

24 United States on the basis of the same visa to 

25 resume the status existing at the time of the 
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1 alien’s departure if the alien satisfies all the 

2 other requirements otherwise applicable to an 

3 alien seeking an initial grant of status under 

4 section 101(a)(15)(H)(iv)(a). The period of au5 thorized admission of an alien entering under 

6 this subparagraph shall expire on the date on 

7 which it would have expired had the alien not 

8 been required to depart the United States. 

9 ‘‘(d) RETURN TRANSPORTATION.—

10 ‘‘(1) IN GENERAL.—In the case of an alien who 

11 is provided nonimmigrant status under section 

12 101(a)(15)(H)(iv)(a) and who is dismissed without 

13 cause from employment by the employer before the 

14 end of the period of authorized admission, the em15 ployer shall be liable for the reasonable costs of re16 turn transportation of the alien abroad and may not 

17 require or permit the alien to reimburse, or other18 wise compensate, the employer for part or all of such 

19 costs. 

20 ‘‘(2) CIVIL MONEY PENALTY.—If the Secretary 

21 of Homeland Security finds, after notice and oppor22 tunity for a hearing, a failure to meet a condition 

23 of paragraph (1), the Secretary—

24 ‘‘(A) shall require the employer to pay 

25 each nonimmigrant with respect to whom such 
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1 a failure occurs the costs owed under paragraph 

2 (1); and 

3 ‘‘(B) may impose a civil money penalty in 

4 an amount not to exceed $5,000 for each non5 immigrant with respect to whom such a failure 

6 occurs. 

7 ‘‘(e) PORTABILITY.—

8 ‘‘(1) IN GENERAL.—A nonimmigrant alien de9 scribed in paragraph (2) who was previously issued 

10 a visa or otherwise provided nonimmigrant status 

11 under section 101(a)(15)(H)(iv)(a) is authorized to 

12 accept new employment upon the filing by the pro13 spective employer of a new petition on behalf of such 

14 nonimmigrant as provided under subsection (a). The 

15 Secretary of Homeland Security shall impose a fee 

16 for such a petition consistent with the fee imposed 

17 under subsection (a)(1). Employment authorization 

18 shall continue for such alien until the new petition 

19 is adjudicated. If the new petition is denied, no other 

20 such petition is pending, and the alien has ceased 

21 employment with the previous employer, such au22 thorization shall cease and the alien shall be re23 quired to return to the country of the alien’s nation24 ality or last residence in accordance with subsection 

25 (c)(3). 
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1 ‘‘(2) ALIENS DESCRIBED.—A nonimmigrant 

2 alien described in this paragraph is a nonimmigrant 

3 alien—

4 ‘‘(A) who has been lawfully admitted into 

5 the United States; 

6 ‘‘(B) on whose behalf an employer has filed 

7 a nonfrivolous petition for new employment not 

8 later than 45 days after the last date on which 

9 the employee was lawfully employed in the 

10 United States; and 

11 ‘‘(C) who, subsequent to such lawful ad12 mission, has not been employed without author13 ization in the United States. 

14 ‘‘(f) TREATMENT OF SPOUSES AND CHILDREN.—

15 ‘‘(1) SPOUSES.—A spouse of an alien having 

16 nonimmigrant status described in section 

17 101(a)(15)(H)(iv)(a) shall not be eligible for deriva18 tive status by accompanying or following to join the 

19 alien. Such a spouse may obtain status under section 

20 101(a)(15)(H)(iv)(a) based only on an independent 

21 petition filed by an employer petitioning under sub22 section (a) with respect to the employment of the 

23 spouse. 

24 ‘‘(2) CHILDREN.—A child of an alien having 

25 nonimmigrant status described in section 
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1 101(a)(15)(H)(iv)(a) shall not be eligible for the 

2 same nonimmigrant status unless—

3 ‘‘(A) the child is accompanying or fol4 lowing to join the alien; and 

5 ‘‘(B) the alien is the sole custodial parent 

6 of the child or both custodial parents of the 

7 child have obtained such status. 

8 ‘‘(3) SPECIAL RULE FOR SPOUSES AND CHIL9 DREN OF FORMER H–4B NONIMMIGRANTS.—In the 

10 case of a spouse or child of an alien who was a non11 immigrant described in section 101(a)(15)(H)(iv)(b) 

12 before obtaining a change in nonimmigrant status to 

13 that of a nonimmigrant under section 

14 101(a)(15)(H)(iv)(a), the spouse or child shall be el15 igible for nonimmigrant status under section 

16 101(a)(15)(H)(iv)(a) if the principal alien is the only 

17 alien among them authorized to be employed in the 

18 United States. 

19 ‘‘(g) GROUNDS FOR INELIGIBILITY.—

20 ‘‘(1) BAR TO FUTURE VISAS FOR CONDITION

21 VIOLATIONS.—Any alien having nonimmigrant sta22 tus described in section 101(a)(15)(H)(iv)(a) shall 

23 not again be eligible for the same nonimmigrant sta24 tus if the alien violates any term or condition of 

25 such status. 
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1 ‘‘(2) ALIENS UNLAWFULLY PRESENT.—Any 

2 alien who enters the United States after August 1, 

3 2003, without being admitted or paroled shall be in4 eligible for nonimmigrant status described in section 

5 101(a)(15)(H)(iv)(a) during the 3-year period begin6 ning on the date of such alien’s departure or re7 moval from the United States. 

8 ‘‘(h) ADJUSTMENT TO LAWFUL PERMANENT RESI9 DENT STATUS.—

10 ‘‘(1) IN GENERAL.—For purposes of adjust11 ment of status under section 245(a), employment12 based immigrant visas shall be made available with13 out numerical limitation to an alien having non14 immigrant status described in section 

15 101(a)(15)(H)(iv)(a) upon the filing of a petition for 

16 such a visa—

17 ‘‘(A) by the alien’s employer; or 

18 ‘‘(B) by the alien, but only if the alien has 

19 maintained such nonimmigrant status for at 

20 least 3 years. 

21 ‘‘(2) CONSTRUCTION.—The fact that an alien is 

22 the beneficiary of a petition described in paragraph 

23 (1), or has otherwise sought permanent residence in 

24 the United States, shall not constitute evidence of 
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1 ineligibility for nonimmigrant status under section 

2 101(a)(15)(H)(iv)(a). 

3 ‘‘(3) SPECIAL RULE FOR FORMER H–4B NON4 IMMIGRANTS.—In the case of an alien who was a 

5 nonimmigrant described in section 

6 101(a)(15)(H)(iv)(b) before obtaining a change in 

7 nonimmigrant status to that of a nonimmigrant 

8 under section 101(a)(15)(H)(iv)(a), in determining 

9 admissibility for purposes of adjustment of status 

10 under section 245(a), the grounds for inadmissibility 

11 specified in paragraphs (6)(A), (6)(B), (6)(C), 

12 (7)(A), and (9)(B) of section 212(a) shall not apply. 

13 ‘‘(i) MANDATORY USE OF ELECTRONIC JOB REG14 ISTRY.—

15 ‘‘(1) ADVERTISEMENT OF JOB OPPORTUNITY

16 TO UNITED STATES WORKERS.—In order to satisfy 

17 the recruitment requirements of this subsection, the 

18 employer shall have—

19 ‘‘(A) taken good faith steps to recruit 

20 United States workers for the job for which the 

21 nonimmigrant is sought, including advertising 

22 the job opportunity exclusively to United States 

23 workers for not less than 14 days on an elec24 tronic job registry established by the Secretary 

25 of Labor (or a designee of the Secretary, which 
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1 may be a nongovernmental entity) to carry out 

2 this section; 

3 ‘‘(B) offered the job to any United States 

4 worker who applied by means of such registry 

5 and was equally or better qualified for the job 

6 for which the nonimmigrant was sought; and 

7 ‘‘(C) advertised and offered the job to indi8 viduals other than United States workers solely 

9 by means of such registry and after the termi10 nation of such 14-day period. 

11 ‘‘(2) EXCEPTION.—The requirements of this 

12 subsection shall not apply to any employer who is 

13 continuing—

14 ‘‘(A) employment of an employee granted a 

15 change in nonimmigrant status from that of a 

16 nonimmigrant under section 

17 101(a)(15)(H)(iv)(b) to that of a nonimmigrant 

18 under section 101(a)(15)(H)(iv)(a); or 

19 ‘‘(B) self-employment after being granted 

20 such a change in status.

21 ‘‘(3) AVAILABILITY OF JOB REGISTRY INFORMA22 TION.—

23 ‘‘(A) CIRCULATION IN INTERSTATE EM24 PLOYMENT SERVICE SYSTEM.—The Secretary of 

25 Labor shall ensure that job opportunities adver-
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1 tised on the electronic job registry established 

2 under this subsection are circulated through the 

3 interstate employment service system and other4 wise furnished to State public employment serv5 ices throughout the country. 

6 ‘‘(B) INTERNET.—Consistent with sub7 section (c)(2)(B) and this subsection, the Sec8 retary of Labor shall ensure that the electronic 

9 job registry established under this subsection 

10 may be accessed by all interested workers, em11 ployers, and labor organizations by means of 

12 the Internet. 

13 ‘‘(4) DEFINITION.—For purposes of this sub14 section, the term ‘United States worker’ means an 

15 individual who—

16 ‘‘(A) is a citizen or national of the United 

17 States; or 

18 ‘‘(B) is an alien who is lawfully admitted 

19 for permanent residence, is admitted as a ref20 ugee under section 207, is granted asylum 

21 under section 208, or is an immigrant otherwise 

22 authorized, by this Act or by the Secretary of 

23 Homeland Security, to be employed. 

24 ‘‘(j) EMPLOYMENT ELIGIBILITY CONFIRMATION SYS25 TEM.— 
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1 ‘‘(1) IN GENERAL.—The Secretary of Homeland 

2 Security shall establish a confirmation system 

3 through which the Secretary (or a designee of the 

4 Secretary, which may be a nongovernmental enti5 ty)—

6 ‘‘(A) responds to inquiries made by per7 sons and other entities (including those made 

8 by the transmittal of data from machine-read9 able documents) at any time through a toll-free 

10 telephone line or other toll-free electronic media 

11 concerning an individual’s identity and whether 

12 the individual is authorized to be employed; and 

13 ‘‘(B) maintains records of the inquiries 

14 that were made, of confirmations provided (or 

15 not provided), and of the codes provided to in16 quirers as evidence of their compliance with 

17 their obligations under this Act. 

18 ‘‘(2) INITIAL RESPONSE.—The confirmation 

19 system shall provide confirmation or a tentative non20 confirmation of an individual’s identity and employ21 ment eligibility within 3 working days of the initial 

22 inquiry. If providing confirmation or tentative non23 confirmation, the confirmation system shall provide 

24 an appropriate code indicating such confirmation or 

25 such nonconfirmation. 
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1 ‘‘(3) SECONDARY VERIFICATION PROCESS IN

2 CASE OF TENTATIVE NONCONFIRMATION.—In cases 

3 of tentative nonconfirmation, the Secretary of 

4 Homeland Security shall specify, in consultation 

5 with the Commissioner of Social Security, an avail6 able secondary verification process to confirm the va7 lidity of information provided and to provide a final 

8 confirmation or nonconfirmation within 10 working 

9 days after the date of the tentative nonconfirmation. 

10 When final confirmation or nonconfirmation is pro11 vided, the confirmation system shall provide an ap12 propriate code indicating such confirmation or non13 confirmation. 

14 ‘‘(4) DESIGN AND OPERATION OF SYSTEM.—

15 The confirmation system shall be designed and oper16 ated—

17 ‘‘(A) to maximize its reliability and ease of 

18 use consistent with insulating and protecting 

19 the privacy and security of the underlying infor20 mation; 

21 ‘‘(B) to respond to all inquiries made by 

22 employers seeking to employ nonimmigrants de23 scribed in section 101(a)(15)(H)(iv) on whether 

24 individuals are authorized to be employed and 
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1 to register all times when such inquiries are not 

2 received; 

3 ‘‘(C) with appropriate administrative, tech4 nical, and physical safeguards to prevent unau5 thorized disclosure of personal information; and 

6 ‘‘(D) to have reasonable safeguards against 

7 the system’s resulting in unlawful discrimina8 tory practices based on national origin or citi9 zenship status, including—

10 ‘‘(i) the selective or unauthorized use 

11 of the system to verify eligibility; 

12 ‘‘(ii) the use of the system prior to an 

13 offer of employment; or 

14 ‘‘(iii) the exclusion of certain individ15 uals from consideration for employment as 

16 a result of a perceived likelihood that addi17 tional verification will be required, beyond 

18 what is required for most job applicants. 

19 ‘‘(5) RESPONSIBILITIES OF THE COMMISSIONER

20 OF SOCIAL SECURITY.—

21 ‘‘(A) IN GENERAL.—As part of the con22 firmation system, the Commissioner of Social 

23 Security, in consultation with the entity respon24 sible for administration of the system, shall use 

25 the information maintained by the Commis-
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1 sioner to assist in confirming (or not con2 firming) the identity and employment eligibility 

3 of an individual in a manner that is determined 

4 by the Secretary of Homeland Security to be re5 liable, secure, not susceptible to identity theft, 

6 and to minimize fraud. The Commissioner shall 

7 not disclose or release social security informa8 tion (other than such confirmation or noncon9 firmation). 

10 ‘‘(6) RESPONSIBILITIES OF THE SECRETARY.—

11 As part of the confirmation system, the Secretary of 

12 Homeland Security, in consultation with the entity 

13 responsible for administration of the system, shall 

14 establish a reliable, secure method, which, within the 

15 time periods specified under paragraphs (2) and (3), 

16 compares the name of the alien, the alien identifica17 tion or authorization number, the date, and the 

18 workplace location which are provided in an inquiry 

19 against such information maintained by the Sec20 retary in order to confirm (or not confirm) the iden21 tity and employment eligibility of an individual in a 

22 manner that is determined by the Secretary to be re23 liable, secure, not susceptible to identity theft, and 

24 to minimize fraud. 
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1 ‘‘(7) UPDATING INFORMATION.—The Commis2 sioner of Social Security and the Secretary of Home3 land Security shall update their information in a 

4 manner that promotes the maximum accuracy and 

5 shall provide a process for the prompt correction of 

6 erroneous information, including instances in which 

7 it is brought to their attention in the secondary 

8 verification process described in paragraph (3). 

9 ‘‘(8) LIMITATION ON USE.—Notwithstanding 

10 any other provision of law, nothing in this subsection 

11 shall be construed to permit or allow any depart12 ment, bureau, or other agency of the United States 

13 Government to utilize any information, data base, or 

14 other records assembled under this subsection for 

15 any other purpose other than as provided for under 

16 this section or section 251. 

17 ‘‘(k) ENFORCEMENT OF EMPLOYER OBLIGATIONS.—

18 ‘‘(1) IN GENERAL.—

19 ‘‘(A) SECRETARY OF HOMELAND SECU20 RITY.—Except as provided in paragraphs (2) 

21 and (3), if the Secretary of Homeland Security 

22 finds, after notice and opportunity for a hear23 ing, a failure to meet a condition of subsection 

24 (a)(2), the Secretary may impose a civil money 

25 penalty in an amount not to exceed $10,000 for 
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1 each nonimmigrant with respect to whom such 

2 a failure occurs. 

3 ‘‘(B) SECRETARY OF LABOR.—Except as 

4 provided in paragraphs (2) and (3), the Sec5 retary of Labor exclusively may exercise any en6 forcement authority granted in the Fair Labor 

7 Standards Act of 1938 (29 U.S.C. 201 et seq.) 

8 to address a failure to meet a condition of sub9 section (a)(2). 

10 ‘‘(2) PROHIBITION ON FEE REIMBURSEMENT.—

11 An employer who has filed a petition under section 

12 214(c) to grant an alien nonimmigrant status de13 scribed in section 101(a)(15)(H)(iv)(a) may not re14 quire the alien to reimburse, or otherwise com15 pensate, the employer for part or all of the cost of 

16 the fee imposed under subsection (a)(1). It is a vio17 lation of this paragraph for such an employer other18 wise to accept any reimbursement or compensation 

19 from such an alien as a condition on employment. If 

20 the Secretary of Homeland Security finds, after no21 tice and opportunity for a hearing, a violation of this 

22 paragraph, the Secretary may impose a civil money 

23 penalty in an amount not to exceed $10,000 for each 

24 such violation. 
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1 ‘‘(3) REQUIRED USE OF EMPLOYMENT ELIGI2 BILITY CONFIRMATION SYSTEM.—If the Secretary of 

3 Labor finds, after notice and opportunity for a hear4 ing, a failure to use the employment eligibility con5 firmation system established under subsection (j) to 

6 verify a nonimmigrant’s identity and employment 

7 authorization before the commencement of employ8 ment, or any other violation of subsection 

9 (a)(2)(B)(i), the Secretary may impose a civil money 

10 penalty in an amount not to exceed $5,000 for each 

11 nonimmigrant with respect to whom such a violation 

12 occurs. 

13 ‘‘(4) WAGE PROTECTIONS.—For purposes of 

14 subsection (a)(2)(B)(ii), all provisions of Federal, 

15 State, and local law pertaining to payment of wages 

16 shall apply to nonimmigrants described in section 

17 101(a)(15)(H)(iv)(a) in the same manner as they 

18 apply to other employees similarly employed in the 

19 same occupation at the place of employment. 

20 ‘‘(l) LABOR RECRUITERS.—The Secretary of Labor 

21 shall develop rules regulating the conduct of labor recruit22 ers under this section.’’. 

23 (b) EXEMPTION FROM NUMERICAL LIMITATIONS ON

24 ADJUSTMENT OF STATUS.—Section 201(b)(1) of the Im-
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1 migration and Nationality Act (8 U.S.C. 1151(b)(1)) is 

2 amended by adding at the end the following: 

3 ‘‘(F) Nonimmigrants described in section 

4 101(a)(15)(H)(iv)(a) whose status is adjusted to 

5 permanent resident under section 245(a).’’. 

6 (c) CONFORMING AMENDMENT REGARDING PRE7 SUMPTION OF NONIMMIGRANT STATUS.—Section 214(b) 

8 of the Immigration and Nationality Act (8 U.S.C. 

9 1184(b)) is amended by striking ‘‘(other than a non10 immigrant described in subparagraph (H)(i), (L), or (V) 

11 of section 101(a)(15))’’ and inserting ‘‘(other than a non12 immigrant described in subparagraph (L) or (V) of section 

13 101(a)(15), and other than a nonimmigrant described in 

14 clause (i) or (vi)(a) of section 101(a)(15)(H))’’. 

15 (d) ASSISTANCE TO FOREIGN GOVERNMENTS.—The 

16 Secretary of Labor and the Secretary of State shall con17 sult with and advise foreign governments in the use and 

18 construction of facilities to assist their nationals in obtain19 ing nonimmigrant status under section 

20 101(a)(15)(H)(iv)(a) of the Immigration and Nationality 

21 Act, as added by section 2. 

22 (e) CLERICAL AMENDMENT.—The table of contents 

23 for the Immigration and Nationality Act (8 U.S.C. 1101

24 et seq.) is amended by inserting after the item relating 

25 to section 218 the following:

‘‘Sec. 218A. Admission of temporary H–4A workers.’’.
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1 SEC. 4. ADJUSTMENT OF STATUS TO THAT OF H–4b NON2 IMMIGRANT. 

3 (a) IN GENERAL.—Chapter 5 of title II of the Immi4 gration and Nationality Act (8 U.S.C. 1255 et seq.) is 

5 amended by inserting after section 250 the following: 

6 ‘‘ADJUSTMENT OF STATUS TO THAT OF H–4B

7 NONIMMIGRANTS

8 ‘‘SEC. 251. (a) IN GENERAL.—The Secretary of 

9 Homeland Security may adjust the status of an alien to 

10 that of a nonimmigrant under section 

11 101(a)(15)(H)(iv)(b) if the alien meets the following re12 quirements: 

13 ‘‘(1) UNLAWFUL RESIDENCE SINCE 2003.—

14 ‘‘(A) IN GENERAL.—The alien must estab15 lish that the alien entered the United States be16 fore August 1, 2003, and has resided in the 

17 United States in an unlawful status since such 

18 date and through the date the application is 

19 filed under this subsection. 

20 ‘‘(B) NONIMMIGRANTS.—In the case of an 

21 alien who entered the United States as a non22 immigrant before August 1, 2003, the alien 

23 must establish that the alien’s period of author24 ized stay as a nonimmigrant expired before 

25 such date through the passage of time or the 
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1 alien’s unlawful status was known to the Fed2 eral Government as of such date. 

3 ‘‘(C) EXCHANGE VISITORS.—If the alien 

4 was at any time a nonimmigrant exchange alien 

5 (as defined in section 101(a)(15)(J)), the alien 

6 must establish that the alien was not subject to 

7 the two-year foreign residence requirement of 

8 section 212(e) or has fulfilled that requirement 

9 or received a waiver thereof. 

10 ‘‘(2) ADMISSIBLE AS IMMIGRANT.—The alien 

11 must establish that the alien—

12 ‘‘(A) is not inadmissible to the United 

13 States under paragraph (2), (3), or (4) of sec14 tion 212(a); 

15 ‘‘(B) has not been convicted of any felony 

16 or misdemeanor committed in the United 

17 States, excluding crimes related to unlawful 

18 entry or presence in the United States and 

19 crimes related to document fraud undertaken 

20 for the purpose of satisfying a requirement of 

21 this Act or obtaining a benefit under this Act; 

22 and 

23 ‘‘(C) has not assisted in the persecution of 

24 any person or persons on account of race, reli-
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1 gion, nationality, membership in a particular 

2 social group, or political opinion. 

3 ‘‘(3) EMPLOYED.—The alien must establish 

4 that the alien—

5 ‘‘(A) was employed in the United States 

6 before August 1, 2003, and has worked in the 

7 United States since such date and through the 

8 date the application is filed under this sub9 section; or 

10 ‘‘(B) is the spouse or child of an alien who 

11 satisfies the requirement of subparagraph (A). 

12 ‘‘(b) APPLICATION FEE.—

13 ‘‘(1) IN GENERAL.—The Secretary of Homeland 

14 Security shall provide for a fee to be charged for the 

15 filing of applications for adjustment of status under 

16 this section. Such fee shall be sufficient to cover the 

17 administrative and other expenses incurred in con18 nection with the review of such applications. 

19 ‘‘(2) PENALTY PAYMENT.—

20 ‘‘(A) IN GENERAL.—In addition to the fee 

21 imposed under paragraph (1), except as pro22 vided in subparagraph (B), the Secretary of 

23 Homeland Security may accept an application 

24 for adjustment of status under this section only 

25 if the alien remits with such application $1,500, 
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1 but such sum shall not be required from a child 

2 under the age of 17. 

3 ‘‘(B) WAGE GARNISHMENT.—

4 ‘‘(i) IN GENERAL.—In lieu of paying 

5 the sum under subparagraph (A) upon fil6 ing the application, an alien may elect to 

7 pay such sum by having the Secretary of 

8 Homeland Security garnish 10 percent of 

9 the disposable pay of the alien, in accord10 ance with section 3720D of title 31, 

11 United States Code. 

12 ‘‘(ii) INTEREST.—In the case of an 

13 outstanding debt created by an election 

14 under clause (i), the Secretary of Home15 land Security shall charge an annual fixed 

16 rate of interest on the debt that is equal 

17 to the bond equivalent rate of 5-year 

18 Treasury notes auctioned at the final auc19 tion held prior to the date on which inter20 est begins to accrue. 

21 ‘‘(iii) FINAL PAYMENT.—Any out22 standing debt created by an election under 

23 clause (i), and any interest due under

24 clause (ii), shall be considered delinquent 

25 if not paid in full 30 days after the end 
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1 of the alien’s period of authorized stay as 

2 a nonimmigrant described in section 

3 101(a)(15)(H)(iv)(b). 

4 ‘‘(3) USE OF FUNDS FOR ADMINISTERING PRO5 GRAM.—

6 ‘‘(A) IN GENERAL.—There is established in 

7 the general fund of the Treasury a separate ac8 count, which shall be known as the ‘H–4B Non9 immigrant Applicant Account’. Notwithstanding 

10 any other section of this title, there shall be de11 posited as offsetting receipts into the account 

12 all fees and penalties collected under this sub13 section. 

14 ‘‘(B) EXPENDITURE.—Amounts deposited 

15 into the H–4B Nonimmigrant Petitioner Ac16 count shall remain available to the Secretary of 

17 Homeland Security until expended to carry out 

18 duties related to nonimmigrants described in 

19 section 101(a)(15)(H)(iv)(b). 

20 ‘‘(c) ADMISSIONS.—Nothing in this section shall be 

21 construed as authorizing an alien to apply for admission 

22 to, or to be admitted to, the United States in order to 

23 apply for adjustment of status under this section. 

24 ‘‘(d) STAY OF REMOVAL.—
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1 ‘‘(1) IN GENERAL.—The Secretary of Homeland 

2 Security shall provide by regulation for an alien sub3 ject to a final order of deportation or removal to 

4 seek a stay of such order based on the filing of an 

5 application under subsection (a). 

6 ‘‘(2) DURING CERTAIN PROCEEDINGS.—Not7 withstanding any provision of the Immigration and 

8 Nationality Act, the Secretary of Homeland Security 

9 shall not order any alien to be removed from the 

10 United States, if the alien is in exclusion, deporta11 tion, or removal proceedings under any provision of 

12 such Act and has applied for adjustment of status 

13 under subsection (a), except where the Secretary has 

14 rendered a final administrative determination to 

15 deny the application. 

16 ‘‘(e) PERIOD OF AUTHORIZED STAY.—In the case of 

17 a nonimmigrant described in section 101(a)(15)(H)(iv)(b), 

18 the period of authorized stay as such a nonimmigrant shall 

19 be 3 years. The Secretary of Homeland Security may not 

20 authorize a change from such nonimmigrant classification 

21 to any other immigrant or nonimmigrant classification 

22 until the termination of such 3-year period. Such period 

23 may not be extended except in the discretion of the Sec24 retary and for a reasonable time solely in order to accom25 modate the processing of an application for a change in 
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1 nonimmigrant status to that of a nonimmigrant under sec2 tion 101(a)(15)(H)(iv)(a) pursuant to a petition described 

3 in section 218A(a). 

4 ‘‘(f) REQUIRED USE OF EMPLOYMENT ELIGIBILITY

5 CONFIRMATION SYSTEM.—

6 ‘‘(1) IN GENERAL.—It is unlawful for a person 

7 or other entity to hire for employment in the United 

8 States a nonimmigrant described in section 

9 101(a)(15)(H)(iv)(b) without—

10 ‘‘(A) using the employment eligibility con11 firmation system established under section 

12 218A(j) to verify the nonimmigrant’s identity 

13 and employment authorization before the com14 mencement of employment; 

15 ‘‘(B) advising the nonimmigrant of any 

16 nonconfirmation with respect to the non17 immigrant provided by such system; and 

18 ‘‘(C) providing the nonimmigrant an op19 portunity to correct the information in the sys20 tem causing such nonconfirmation before revok21 ing the offer of employment in order that the 

22 requirement of subparagraph (A) is satisfied 

23 before the commencement of employment. 

24 ‘‘(2) CIVIL MONEY PENALTY.—If the Secretary 

25 of Labor finds, after notice and opportunity for a 
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1 hearing, a failure to meet a violation of paragraph 

2 (1), the Secretary may impose a civil money penalty 

3 in an amount not to exceed $5,000 for each non4 immigrant with respect to whom such a violation oc5 curs. 

6 ‘‘(g) EXTENSION OF H–4A LABOR PROTECTIONS TO

7 H–4B NONIMMIGRANTS.—A person or other entity em8 ploying a nonimmigrant described in section 

9 101(a)(15)(H)(iv)(b) shall comply with the requirements 

10 of clauses (ii) through (vi) of section 218A(a)(2) in the 

11 same manner as an employer having an approved petition 

12 described in section 218A(a). The Secretary of Labor ex13 clusively may exercise any enforcement authority granted 

14 in the Fair Labor Standards Act of 1938 (29 U.S.C. 201 

15 et seq.) to address a failure to meet a requirement of this 

16 subsection.’’. 

17 (b) CLERICAL AMENDMENT.—The table of contents 

18 for the Immigration and Nationality Act (8 U.S.C. 1101 

19 et seq.) is amended by inserting after the item relating 

20 to section 250 the following:

‘‘Sec. 251. Adjustment of status to that of H–4B nonimmigrant.’’.

21 SEC. 5. INCREASED FUNDS FOR UNITED STATES EMPLOY22 MENT SERVICE. 

23 There are authorized to be appropriated to the Sec24 retary of Labor such additional sums as may be necessary 

25 for fiscal year 2004 and subsequent fiscal years to permit 
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1 the United States Employment Service to assist State 

2 public employment services in meeting any increased de3 mand for services by employers and persons seeking em4 ployment engendered by the amendments made by this 

5 Act.

Æ