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 subse-
quently 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Border Security and 
Immigration Improvement Act’’. 
SEC. 2. NEW NONIMMIGRANT WORKER VISA CATEGORIES. 
Section 101(a)(15)(H) of the Immigration and Na-
tionality Act (8 U.S.C. 1101(a)(15)(H)) is amended—
‘‘(B) $500, in the case of any other em-
ployer; and 
‘‘(2) shall approve the petition only after deter-
mining that the petitioning employer—
‘‘(A) has satisfied the recruitment require-
ments of subsection (i); and 
‘‘(B) has attested in such petition that the 
employer—
‘‘(i) with respect to the employment 
eligibility confirmation system established 
under subsection (j)—
‘‘(I) will use such system to 
verify the alien’s identity and employ-
ment authorization after such ap-
proval and before the commencement 
of employment; 
‘‘(II) will advise the alien of any 
nonconfirmation with respect to the 
alien provided by such system; and 
‘‘(III) will provide the alien an 
opportunity to correct the information 
in the system causing such noncon-
firmation before revoking the offer of 
employment in order that the require-
ment of subclause (I) is satisfied be-
fore the commencement of employ-
ment; 
‘‘(ii) will provide the nonimmigrant 
the same benefits, wages, and working con-
ditions provided to other employees simi-
larly employed in the same occupation at 
the place of employment; 
‘‘(iii) will require the nonimmigrant to 
work hours commensurate with those of 
such other employees; 
‘‘(iv) will not ask the nonimmigrant to 
refrain from accepting work for any com-
petitor of the employer; 
‘‘(v) did not displace and will not dis-
place a United States worker (as defined 
in section 212(n)(4)) employed by the em-
ployer within the period beginning 90 days 
before and ending 90 days after the date 
of filing of the petition; and 
‘‘(vi) otherwise will comply with all 
applicable Federal, State, and local labor 
laws, including laws affecting migrant and 
seasonal agricultural workers, with respect 
to the nonimmigrant. 
‘‘(b) NONIMMIGRANT VISAS.—
‘‘(1) NO FEE.—Neither the Secretary of State, 
nor the Secretary of Homeland Security, shall au-
thorize the imposition of an application fee on an 
alien seeking a nonimmigrant visa under section 
101(a)(15)(H)(iv)(a) in an amount that exceeds the 
actual cost of processing and adjudicating such ap-
plication. 
‘‘(2) BIOMETRIC IDENTIFIERS.—The Secretary 
of State and the Secretary of Homeland Security 
shall issue to aliens obtaining status under section 
101(a)(15)(H)(iv)(a) only machine-readable, tamper-
resistant visas and other travel and entry documents 
that use biometric identifiers. The Secretary of State 
and the Secretary of Homeland Security shall jointly 
establish document authentication standards and bi-
ometric identifier standards to be employed on such 
visas and other travel and entry documents from 
among those biometric identifiers recognized by do-
mestic and international standards organizations. 
‘‘(3) PHYSICAL
EXAMINATION.—Prior to the 
issuance of a nonimmigrant visa to any alien under 
section 101(a)(15)(H)(iv)(a), the consular officer 
shall require such alien to submit to a medical exam-
ination to ascertain whether such alien is ineligible 
to receive a visa on a health-related ground.
‘‘(4) PRIORITY FOR VISITOR VISAS FOR IMME-
DIATE RELATIVES.—In the case of an alien who is 
the spouse, parent, son, or daughter of a non-
immigrant described in section 101(a)(15)(H)(iv), if 
the alien is applying for a nonimmigrant visa under 
section 101(a)(15)(B)—
‘‘(A) the alien’s application shall be given 
priority; and 
‘‘(B) notwithstanding sections 214(b) and 
291, in establishing that the alien has a resi-
dence in a foreign country which the alien has 
no intention of abandoning, the burden of proof 
required shall not be greater than a preponder-
ance of the evidence. 
‘‘(5) VISITS OUTSIDE UNITED STATES.—Pursu-
ant to regulations established by the Secretary of 
Homeland Security, an alien having status as a non-
immigrant described in section 101(a)(15)(H)(iv)(a) 
may make brief visits outside the United States and 
may be readmitted without having to obtain a new 
visa. Such periods of time spent outside the United 
States shall not cause the period of authorized ad-
mission in the United States to be extended. 
‘‘(c) PERIOD OF AUTHORIZED ADMISSION.—
‘‘(1) INITIAL PERIOD.—In the case of a non-
immigrant described in section 101(a)(15)(H)(iv)(a), 
the initial period of authorized admission as such a 
nonimmigrant shall be 3 years. 
‘‘(2) RENEWALS.—
‘‘(A) IN
GENERAL.—The Secretary of 
Homeland Security may extend such period not 
more than once, in a 3-year increment. 
‘‘(B) TREATMENT
OF
LONG-TERM
EM-
PLOYEES.—In any case in which a non-
immigrant has held a job for 3 years or more, 
an extension under subparagraph (A) may be 
granted only upon the filing of a petition by the 
nonimmigrant’s employer establishing that—
‘‘(i) not earlier than 2 months prior to 
such filing, the employer advertised the 
availability of the nonimmigrant’s job ex-
clusively to United States workers for not 
less than 14 days using the electronic job 
registry described in subsection (i); and 
‘‘(ii) the employer offered the job to 
any eligible United States worker who ap-
plied by means of such registry and was 
equally or better qualified for such job and 
available at the time and place of need.
(C) NO FEES.—The Secretary of Home-
land Security shall not impose a fee on a peti-
tioning employer in the case of a petition to ex-
tend the stay of an alien having nonimmigrant 
status 
described 
in 
section 
101(a)(15)(H)(iv)(a). 
‘‘(3) LOSS OF EMPLOYMENT.—
‘‘(A) IN GENERAL.—Subject to subsection 
(e), any period of authorized admission of an 
alien having nonimmigrant status described in 
section 101(a)(15)(H)(iv)(a) shall terminate if 
the nonimmigrant is unemployed for 45 or more 
consecutive days. 
‘‘(B) RETURN TO FOREIGN RESIDENCE.—
An alien whose period of authorized admission 
terminates under subparagraph (A) shall be re-
quired to return to the country of the alien’s 
nationality or last residence. 
‘‘(C) VISA VALIDITY.—An alien whose pe-
riod of authorized admission terminates under 
subparagraph (A), and who returns to the 
country of the alien’s nationality or last resi-
dence under subparagraph (B), may reenter the 
United States on the basis of the same visa to 
resume the status existing at the time of the
alien’s departure if the alien satisfies all the 
other requirements otherwise applicable to an 
alien seeking an initial grant of status under 
section 101(a)(15)(H)(iv)(a). The period of au-
thorized admission of an alien entering under 
this subparagraph shall expire on the date on 
which it would have expired had the alien not 
been required to depart the United States. 
‘‘(d) RETURN TRANSPORTATION.—
‘‘(1) IN GENERAL.—In the case of an alien who 
is provided nonimmigrant status under section 
101(a)(15)(H)(iv)(a) and who is dismissed without 
cause from employment by the employer before the 
end of the period of authorized admission, the em-
ployer shall be liable for the reasonable costs of re-
turn transportation of the alien abroad and may not 
require or permit the alien to reimburse, or other-
wise compensate, the employer for part or all of such 
costs. 
‘‘(2) CIVIL MONEY PENALTY.—If the Secretary 
of Homeland Security finds, after notice and oppor-
tunity for a hearing, a failure to meet a condition 
of paragraph (1), the Secretary—
‘‘(A) shall require the employer to pay 
each nonimmigrant with respect to whom such
a failure occurs the costs owed under paragraph 
(1); and 
‘‘(B) may impose a civil money penalty in 
an amount not to exceed $5,000 for each non-
immigrant with respect to whom such a failure 
occurs. 
‘‘(e) PORTABILITY.—
‘‘(1) IN GENERAL.—A nonimmigrant alien de-
scribed in paragraph (2) who was previously issued 
a visa or otherwise provided nonimmigrant status 
under section 101(a)(15)(H)(iv)(a) is authorized to 
accept new employment upon the filing by the pro-
spective employer of a new petition on behalf of such 
nonimmigrant as provided under subsection (a). The 
Secretary of Homeland Security shall impose a fee 
for such a petition consistent with the fee imposed 
under subsection (a)(1). Employment authorization 
shall continue for such alien until the new petition 
is adjudicated. If the new petition is denied, no other 
such petition is pending, and the alien has ceased 
employment with the previous employer, such au-
thorization shall cease and the alien shall be re-
quired to return to the country of the alien’s nation-
ality or last residence in accordance with subsection 
(c)(3).
‘‘(2) ALIENS
DESCRIBED.—A nonimmigrant 
alien described in this paragraph is a nonimmigrant 
alien—
‘‘(A) who has been lawfully admitted into 
the United States; 
‘‘(B) on whose behalf an employer has filed 
a nonfrivolous petition for new employment not 
later than 45 days after the last date on which 
the employee was lawfully employed in the 
United States; and 
‘‘(C) who, subsequent to such lawful ad-
mission, has not been employed without author-
ization in the United States. 
‘‘(f) TREATMENT OF SPOUSES AND CHILDREN.—
‘‘(1) SPOUSES.—A spouse of an alien having 
nonimmigrant 
status 
described 
in 
section 
101(a)(15)(H)(iv)(a) shall not be eligible for deriva-
tive status by accompanying or following to join the 
alien. Such a spouse may obtain status under section 
101(a)(15)(H)(iv)(a) based only on an independent 
petition filed by an employer petitioning under sub-
section (a) with respect to the employment of the 
spouse. 
‘‘(2) CHILDREN.—A child of an alien having 
nonimmigrant 
status 
described 
in 
section
101(a)(15)(H)(iv)(a) shall not be eligible for the 
same nonimmigrant status unless—
‘‘(A) the child is accompanying or fol-
lowing to join the alien; and 
‘‘(B) the alien is the sole custodial parent 
of the child or both custodial parents of the 
child have obtained such status. 
‘‘(3) SPECIAL RULE FOR SPOUSES AND CHIL-
DREN OF FORMER H–4B NONIMMIGRANTS.—In the 
case of a spouse or child of an alien who was a non-
immigrant described in section 101(a)(15)(H)(iv)(b) 
before obtaining a change in nonimmigrant status to 
that 
of 
a 
nonimmigrant 
under 
section 
101(a)(15)(H)(iv)(a), the spouse or child shall be el-
igible for nonimmigrant status under section 
101(a)(15)(H)(iv)(a) if the principal alien is the only 
alien among them authorized to be employed in the 
United States. 
‘‘(g) GROUNDS FOR INELIGIBILITY.—
‘‘(1) BAR TO FUTURE VISAS FOR CONDITION 
VIOLATIONS.—Any alien having nonimmigrant sta-
tus described in section 101(a)(15)(H)(iv)(a) shall 
not again be eligible for the same nonimmigrant sta-
tus if the alien violates any term or condition of 
such status.
‘‘(2) ALIENS
UNLAWFULLY
PRESENT.—Any 
alien who enters the United States after August 1, 
2003, without being admitted or paroled shall be in-
eligible for nonimmigrant status described in section 
101(a)(15)(H)(iv)(a) during the 3-year period begin-
ning on the date of such alien’s departure or re-
moval from the United States. 
‘‘(h) ADJUSTMENT TO LAWFUL PERMANENT RESI-
DENT STATUS.—
‘‘(1) IN
GENERAL.—For purposes of adjust-
ment of status under section 245(a), employment-
based immigrant visas shall be made available with-
out numerical limitation to an alien having non-
immigrant 
status 
described 
in 
section 
101(a)(15)(H)(iv)(a) upon the filing of a petition for 
such a visa—
‘‘(A) by the alien’s employer; or 
‘‘(B) by the alien, but only if the alien has 
maintained such nonimmigrant status for at 
least 3 years. 
‘‘(2) CONSTRUCTION.—The fact that an alien is 
the beneficiary of a petition described in paragraph 
(1), or has otherwise sought permanent residence in 
the United States, shall not constitute evidence of
ineligibility for nonimmigrant status under section 
101(a)(15)(H)(iv)(a). 
‘‘(3) SPECIAL RULE FOR FORMER H–4B NON-
IMMIGRANTS.—In the case of an alien who was a 
nonimmigrant 
described 
in 
section 
101(a)(15)(H)(iv)(b) before obtaining a change in 
nonimmigrant status to that of a nonimmigrant 
under section 101(a)(15)(H)(iv)(a), in determining 
admissibility for purposes of adjustment of status 
under section 245(a), the grounds for inadmissibility 
specified in paragraphs (6)(A), (6)(B), (6)(C), 
(7)(A), and (9)(B) of section 212(a) shall not apply. 
‘‘(i) MANDATORY USE OF ELECTRONIC JOB REG-
ISTRY.—
‘‘(1) ADVERTISEMENT
OF
JOB
OPPORTUNITY 
TO UNITED STATES WORKERS.—In order to satisfy 
the recruitment requirements of this subsection, the 
employer shall have—
‘‘(A) taken good faith steps to recruit 
United States workers for the job for which the 
nonimmigrant is sought, including advertising 
the job opportunity exclusively to United States 
workers for not less than 14 days on an elec-
tronic job registry established by the Secretary 
of Labor (or a designee of the Secretary, which
may be a nongovernmental entity) to carry out 
this section; 
‘‘(B) offered the job to any United States 
worker who applied by means of such registry 
and was equally or better qualified for the job 
for which the nonimmigrant was sought; and 
‘‘(C) advertised and offered the job to indi-
viduals other than United States workers solely 
by means of such registry and after the termi-
nation of such 14-day period. 
‘‘(2) EXCEPTION.—The requirements of this 
subsection shall not apply to any employer who is 
continuing—
‘‘(A) employment of an employee granted a 
change in nonimmigrant status from that of a 
nonimmigrant 
under 
section 
101(a)(15)(H)(iv)(b) to that of a nonimmigrant 
under section 101(a)(15)(H)(iv)(a); or 
‘‘(B) self-employment after being granted 
such a change in status.
‘‘(3) AVAILABILITY OF JOB REGISTRY INFORMA-
TION.—
‘‘(A) CIRCULATION
IN
INTERSTATE
EM-
PLOYMENT SERVICE SYSTEM.—The Secretary of 
Labor shall ensure that job opportunities adver-
tised on the electronic job registry established 
under this subsection are circulated through the 
interstate employment service system and other-
wise furnished to State public employment serv-
ices throughout the country. 
‘‘(B) INTERNET.—Consistent with sub-
section (c)(2)(B) and this subsection, the Sec-
retary of Labor shall ensure that the electronic 
job registry established under this subsection 
may be accessed by all interested workers, em-
ployers, and labor organizations by means of 
the Internet. 
‘‘(4) DEFINITION.—For purposes of this sub-
section, the term ‘United States worker’ means an 
individual who—
‘‘(A) is a citizen or national of the United 
States; or 
‘‘(B) is an alien who is lawfully admitted 
for permanent residence, is admitted as a ref-
ugee under section 207, is granted asylum 
under section 208, or is an immigrant otherwise 
authorized, by this Act or by the Secretary of 
Homeland Security, to be employed. 
‘‘(j) EMPLOYMENT ELIGIBILITY CONFIRMATION SYS-
TEM.—
‘‘(1) IN GENERAL.—The Secretary of Homeland 
Security shall establish a confirmation system 
through which the Secretary (or a designee of the 
Secretary, which may be a nongovernmental enti-
ty)—
‘‘(A) responds to inquiries made by per-
sons and other entities (including those made 
by the transmittal of data from machine-read-
able documents) at any time through a toll-free 
telephone line or other toll-free electronic media 
concerning an individual’s identity and whether 
the individual is authorized to be employed; and 
‘‘(B) maintains records of the inquiries 
that were made, of confirmations provided (or 
not provided), and of the codes provided to in-
quirers as evidence of their compliance with 
their obligations under this Act. 
‘‘(2) INITIAL
RESPONSE.—The confirmation 
system shall provide confirmation or a tentative non-
confirmation of an individual’s identity and employ-
ment eligibility within 3 working days of the initial 
inquiry. If providing confirmation or tentative non-
confirmation, the confirmation system shall provide 
an appropriate code indicating such confirmation or 
such nonconfirmation.
‘‘(3) SECONDARY
VERIFICATION
PROCESS
IN 
CASE OF TENTATIVE NONCONFIRMATION.—In cases 
of tentative nonconfirmation, the Secretary of 
Homeland Security shall specify, in consultation 
with the Commissioner of Social Security, an avail-
able secondary verification process to confirm the va-
lidity of information provided and to provide a final 
confirmation or nonconfirmation within 10 working 
days after the date of the tentative nonconfirmation. 
When final confirmation or nonconfirmation is pro-
vided, the confirmation system shall provide an ap-
propriate code indicating such confirmation or non-
confirmation. 
‘‘(4) DESIGN AND OPERATION OF SYSTEM.—
The confirmation system shall be designed and oper-
ated—
‘‘(A) to maximize its reliability and ease of 
use consistent with insulating and protecting 
the privacy and security of the underlying infor-
mation; 
‘‘(B) to respond to all inquiries made by 
employers seeking to employ nonimmigrants de-
scribed in section 101(a)(15)(H)(iv) on whether 
individuals are authorized to be employed and
to register all times when such inquiries are not 
received; 
‘‘(C) with appropriate administrative, tech-
nical, and physical safeguards to prevent unau-
thorized disclosure of personal information; and 
‘‘(D) to have reasonable safeguards against 
the system’s resulting in unlawful discrimina-
tory practices based on national origin or citi-
zenship status, including—
‘‘(i) the selective or unauthorized use 
of the system to verify eligibility; 
‘‘(ii) the use of the system prior to an 
offer of employment; or 
‘‘(iii) the exclusion of certain individ-
uals from consideration for employment as 
a result of a perceived likelihood that addi-
tional verification will be required, beyond 
what is required for most job applicants. 
‘‘(5) RESPONSIBILITIES OF THE COMMISSIONER 
OF SOCIAL SECURITY.—
‘‘(A) IN GENERAL.—As part of the con-
firmation system, the Commissioner of Social 
Security, in consultation with the entity respon-
sible for administration of the system, shall use 
the information maintained by the Commis-