Border Security and Immigration Improvement Act - Amends the Immigration and Nationality Act to establish new visa programs for: (1) aliens who seek to enter the United States as temporary workers; and (2) undocumented aliens residing in the United States who seek to remain legally in the United States.
Authorizes additional funding for the United States Employment Service to assist States meet increased employment services resulting from the amendments made by this Act.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2899 Introduced in House (IH)]
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.
Be it enacted by the Senate and House of Representatives 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 Nationality Act (8
U.S.C. 1101(a)(15)(H)) is amended--
(1) by striking ``or (iii)'' and inserting ``(iii)''; and
(2) by striking ``and the alien spouse'' and inserting the
following:
``or (iv)(a) subject to section 218A, who is coming to the
United States to fill a job opportunity for temporary full-time
employment at a place in the United States; or (b) whose status
is adjusted under section 251 and who (except in the case of a
spouse or child provided derivative status) is employed in the
United States; and, except as provided in sections 218A and
251, the alien spouse''.
SEC. 3. ADMISSION OF TEMPORARY H-4A WORKERS.
(a) In General.--Chapter 2 of title II of the Immigration and
Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after
section 218 the following:
``admission of temporary h-4a workers
``Sec. 218A. (a) Petition.--In the case of a petition under section
214(c) initially to grant an alien nonimmigrant status described
in section 101(a)(15)(H)(iv)(a), the Secretary of Homeland Security--
``(1) shall impose a fee on the petitioning employer of--
``(A) $1000, in the case of an employer employing
more than 500 employees; or
``(B) $500, in the case of any other employer; and
``(2) shall approve the petition only after determining
that the petitioning employer--
``(A) has satisfied the recruitment requirements 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
employment authorization after such
approval 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
nonconfirmation before revoking the
offer of employment in order that the
requirement of subclause (I) is
satisfied before the commencement of
employment;
``(ii) will provide the nonimmigrant the
same benefits, wages, and working conditions
provided to other employees similarly 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 competitor
of the employer;
``(v) did not displace and will not
displace a United States worker (as defined in
section 212(n)(4)) employed by the employer
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 authorize 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
application.
``(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 biometric
identifier standards to be employed on such visas and other
travel and entry documents from among those biometric
identifiers recognized by domestic 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 examination to ascertain whether
such alien is ineligible to receive a visa on a health-related
ground.
``(4) Priority for visitor visas for immediate relatives.--
In the case of an alien who is the spouse, parent, son, or
daughter of a nonimmigrant 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 residence in a
foreign country which the alien has no intention of
abandoning, the burden of proof required shall not be
greater than a preponderance of the evidence.
``(5) Visits outside united states.--Pursuant to
regulations established by the Secretary of Homeland Security,
an alien having status as a nonimmigrant 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 admission in the
United States to be extended.
``(c) Period of Authorized Admission.--
``(1) Initial period.--In the case of a nonimmigrant
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 employees.--In any
case in which a nonimmigrant 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
exclusively 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 applied 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 Homeland Security
shall not impose a fee on a petitioning employer in the
case of a petition to extend 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 required to return to the
country of the alien's nationality or last residence.
``(C) Visa validity.--An alien whose period of
authorized admission terminates under subparagraph (A),
and who returns to the country of the alien's
nationality or last residence 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 authorized
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
employer shall be liable for the reasonable costs of return
transportation of the alien abroad and may not require or
permit the alien to reimburse, or otherwise compensate, the
employer for part or all of such costs.
``(2) Civil money penalty.--If the Secretary of Homeland
Security finds, after notice and opportunity 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 nonimmigrant with respect
to whom such a failure occurs.
``(e) Portability.--
``(1) In general.--A nonimmigrant alien described 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
prospective 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 authorization shall
cease and the alien shall be required to return to the country of the
alien's nationality 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 admission, has
not been employed without authorization 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 derivative 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 subsection (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 following 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 children of former h-4b
nonimmigrants.--In the case of a spouse or child 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), the spouse or child shall be eligible 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 status described in section
101(a)(15)(H)(iv)(a) shall not again be eligible for the same
nonimmigrant status 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 ineligible for nonimmigrant status described
in section 101(a)(15)(H)(iv)(a) during the 3-year period
beginning on the date of such alien's departure or removal from
the United States.
``(h) Adjustment to Lawful Permanent Resident Status.--
``(1) In general.--For purposes of adjustment of status
under section 245(a), employment-based immigrant visas shall be
made available without numerical limitation to an alien having
nonimmigrant 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 nonimmigrants.--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 Registry.--
``(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 electronic 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 individuals
other than United States workers solely by means of
such registry and after the termination 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 information.--
``(A) Circulation in interstate employment service
system.--The Secretary of Labor shall ensure that job
opportunities advertised on the electronic job registry
established under this subsection are circulated
through the interstate employment service system and
otherwise furnished to State public employment services
throughout the country.
``(B) Internet.--Consistent with subsection
(c)(2)(B) and this subsection, the Secretary of Labor
shall ensure that the electronic job registry
established under this subsection may be accessed by
all interested workers, employers, and labor
organizations by means of the Internet.
``(4) Definition.--For purposes of this subsection, 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 refugee 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 System.--
``(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
entity)--
``(A) responds to inquiries made by persons and
other entities (including those made by the transmittal
of data from machine-readable 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 inquirers as evidence of their
compliance with their obligations under this Act.
``(2) Initial response.--The confirmation system shall
provide confirmation or a tentative nonconfirmation of an
individual's identity and employment eligibility within 3
working days of the initial inquiry. If providing confirmation
or tentative nonconfirmation, 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 available
secondary verification process to confirm the validity 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 provided, the confirmation system shall
provide an appropriate code indicating such confirmation or
nonconfirmation.
``(4) Design and operation of system.--The confirmation
system shall be designed and operated--
``(A) to maximize its reliability and ease of use
consistent with insulating and protecting the privacy
and security of the underlying information;
``(B) to respond to all inquiries made by employers
seeking to employ nonimmigrants described 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, technical,
and physical safeguards to prevent unauthorized
disclosure of personal information; and
``(D) to have reasonable safeguards against the
system's resulting in unlawful discriminatory practices
based on national origin or citizenship 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
individuals from consideration for employment
as a result of a perceived likelihood that
additional 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 confirmation
system, the Commissioner of Social Security, in
consultation with the entity responsible for
administration of the system, shall use the information
maintained by the Commissioner to assist in confirming
(or not confirming) the identity and employment
eligibility of an individual in a manner that is
determined by the Secretary of Homeland Security to be
reliable, secure, not susceptible to identity theft,
and to minimize fraud. The Commissioner shall not
disclose or release social security information (other
than such confirmation or nonconfirmation).
``(6) Responsibilities of the secretary.--As part of the
confirmation system, the Secretary of Homeland Security, in
consultation with the entity responsible for administration of
the system, shall establish a reliable, secure method, which,
within the time periods specified under paragraphs (2) and (3),
compares the name of the alien, the alien identification or
authorization number, the date, and the workplace location
which are provided in an inquiry against such information
maintained by the Secretary in order to confirm (or not
confirm) the identity and employment eligibility of an
individual in a manner that is determined by the Secretary to
be reliable, secure, not susceptible to identity theft, and to
minimize fraud.
``(7) Updating information.--The Commissioner of Social
Security and the Secretary of Homeland Security shall update
their information in a manner that promotes the maximum
accuracy and shall provide a process for the prompt correction
of erroneous information, including instances in which it is
brought to their attention in the secondary verification
process described in paragraph (3).
``(8) Limitation on use.--Notwithstanding any other
provision of law, nothing in this subsection shall be construed
to permit or allow any department, bureau, or other agency of
the United States Government to utilize any information, data
base, or other records assembled under this subsection for any
other purpose other than as provided for under this section or
section 251.
``(k) Enforcement of Employer Obligations.--
``(1) In general.--
``(A) Secretary of homeland security.--Except as
provided in paragraphs (2) and (3), if the Secretary of
Homeland Security finds, after notice and opportunity
for a hearing, a failure to meet a condition of
subsection (a)(2), the Secretary may impose a civil
money penalty in an amount not to exceed $10,000 for
each nonimmigrant with respect to whom such a failure
occurs.
``(B) Secretary of labor.--Except as provided in
paragraphs (2) and (3), the Secretary of Labor
exclusively may exercise any enforcement authority
granted in the Fair Labor Standards Act of 1938 (29
U.S.C. 201 et seq.) to address a failure to meet a
condition of subsection (a)(2).
``(2) Prohibition on fee reimbursement.--An employer who
has filed a petition under section 214(c) to grant an alien
nonimmigrant status described in section 101(a)(15)(H)(iv)(a)
may not require the alien to reimburse, or otherwise
compensate, the employer for part or all of the cost of the fee
imposed under subsection (a)(1). It is a violation of this
paragraph for such an employer otherwise to accept any
reimbursement or compensation from such an alien as a condition
on employment. If the Secretary of Homeland Security finds,
after notice and opportunity for a hearing, a violation of this
paragraph, the Secretary may impose a civil money penalty in an
amount not to exceed $10,000 for each such violation.
``(3) Required use of employment eligibility confirmation
system.--If the Secretary of Labor finds, after notice and
opportunity for a hearing, a failure to use the employment
eligibility confirmation system established under subsection
(j) to verify a nonimmigrant's identity and employment
authorization before the commencement of employment, or any
other violation of subsection (a)(2)(B)(i), the Secretary may
impose a civil money penalty in an amount not to exceed $5,000
for each nonimmigrant with respect to whom such a violation
occurs.
``(4) Wage protections.--For purposes of subsection
(a)(2)(B)(ii), all provisions of Federal, State, and local law
pertaining to payment of wages shall apply to nonimmigrants
described in section 101(a)(15)(H)(iv)(a) in the same manner as
they apply to other employees similarly employed in the same
occupation at the place of employment.
``(l) Labor Recruiters.--The Secretary of Labor shall develop rules
regulating the conduct of labor recruiters under this section.''.
(b) Exemption From Numerical Limitations on Adjustment of Status.--
Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C.
1151(b)(1)) is amended by adding at the end the following:
``(F) Nonimmigrants described in section
101(a)(15)(H)(iv)(a) whose status is adjusted to permanent
resident under section 245(a).''.
(c) Conforming Amendment Regarding Presumption of Nonimmigrant
Status.--Section 214(b) of the Immigration and Nationality Act (8
U.S.C. 1184(b)) is amended by striking ``(other than a nonimmigrant
described in subparagraph (H)(i), (L), or (V) of section 101(a)(15))''
and inserting ``(other than a nonimmigrant described in subparagraph
(L) or (V) of section 101(a)(15), and other than a nonimmigrant
described in clause (i) or (vi)(a) of section 101(a)(15)(H))''.
(d) Assistance to Foreign Governments.--The Secretary of Labor and
the Secretary of State shall consult with and advise foreign
governments in the use and construction of facilities to assist their
nationals in obtaining nonimmigrant status under section
101(a)(15)(H)(iv)(a) of the Immigration and Nationality Act, as added
by section 2.
(e) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting
after the item relating to section 218 the following:
``Sec. 218A. Admission of temporary H-4A workers.''.
SEC. 4. ADJUSTMENT OF STATUS TO THAT OF H-4B NONIMMIGRANT.
(a) In General.--Chapter 5 of title II of the Immigration and
Nationality Act (8 U.S.C. 1255 et seq.) is amended by inserting after
section 250 the following:
``adjustment of status to that of h-4b nonimmigrants
``Sec. 251. (a) In General.--The Secretary of Homeland Security may
adjust the status of an alien to that of a nonimmigrant under section
101(a)(15)(H)(iv)(b) if the alien meets the following requirements:
``(1) Unlawful residence since 2003.--
``(A) In general.--The alien must establish that
the alien entered the United States before August 1,
2003, and has resided in the United States in an
unlawful status since such date and through the date
the application is filed under this subsection.
``(B) Nonimmigrants.--In the case of an alien who
entered the United States as a nonimmigrant before
August 1, 2003, the alien must establish that the
alien's period of authorized stay as a nonimmigrant
expired before such date through the passage of time or
the alien's unlawful status was known to the Federal
Government as of such date.
``(C) Exchange visitors.--If the alien was at any
time a nonimmigrant exchange alien (as defined in
section 101(a)(15)(J)), the alien must establish that
the alien was not subject to the two-year foreign
residence requirement of section 212(e) or has
fulfilled that requirement or received a waiver
thereof.
``(2) Admissible as immigrant.--The alien must establish
that the alien--
``(A) is not inadmissible to the United States
under paragraph (2), (3), or (4) of section 212(a);
``(B) has not been convicted of any felony or
misdemeanor committed in the United States, excluding
crimes related to unlawful entry or presence in the
United States and crimes related to document fraud
undertaken for the purpose of satisfying a requirement
of this Act or obtaining a benefit under this Act; and
``(C) has not assisted in the persecution of any
person or persons on account of race, religion,
nationality, membership in a particular social group,
or political opinion.
``(3) Employed.--The alien must establish that the alien--
``(A) was employed in the United States before
August 1, 2003, and has worked in the United States
since such date and through the date the application is
filed under this subsection; or
``(B) is the spouse or child of an alien who
satisfies the requirement of subparagraph (A).
``(b) Application Fee.--
``(1) In general.--The Secretary of Homeland Security shall
provide for a fee to be charged for the filing of applications
for adjustment of status under this section. Such fee shall be
sufficient to cover the administrative and other expenses
incurred in connection with the review of such applications.
``(2) Penalty payment.--
``(A) In general.--In addition to the fee imposed
under paragraph (1), except as provided in subparagraph
(B), the Secretary of Homeland Security may accept an
application for adjustment of status under this section
only if the alien remits with such application $1,500,
but such sum shall not be required from a child under
the age of 17.
``(B) Wage garnishment.--
``(i) In general.--In lieu of paying the
sum under subparagraph (A) upon filing the
application, an alien may elect to pay such sum
by having the Secretary of Homeland Security
garnish 10 percent of the disposable pay of the
alien, in accordance with section 3720D of
title 31, United States Code.
``(ii) Interest.--In the case of an
outstanding debt created by an election under
clause (i), the Secretary of Homeland Security
shall charge an annual fixed rate of interest
on the debt that is equal to the bond
equivalent rate of 5-year Treasury notes
auctioned at the final auction held prior to
the date on which interest begins to accrue.
``(iii) Final payment.--Any outstanding
debt created by an election under clause (i),
and any interest due under clause (ii), shall
be considered delinquent if not paid in full 30 days after the end of
the alien's period of authorized stay as a nonimmigrant described in
section 101(a)(15)(H)(iv)(b).
``(3) Use of funds for administering program.--
``(A) In general.--There is established in the
general fund of the Treasury a separate account, which
shall be known as the `H-4B Nonimmigrant Applicant
Account'. Notwithstanding any other section of this
title, there shall be deposited as offsetting receipts
into the account all fees and penalties collected under
this subsection.
``(B) Expenditure.--Amounts deposited into the H-4B
Nonimmigrant Petitioner Account shall remain available
to the Secretary of Homeland Security until expended to
carry out duties related to nonimmigrants described in
section 101(a)(15)(H)(iv)(b).
``(c) Admissions.--Nothing in this section shall be construed as
authorizing an alien to apply for admission to, or to be admitted to,
the United States in order to apply for adjustment of status under this
section.
``(d) Stay of Removal.--
``(1) In general.--The Secretary of Homeland Security shall
provide by regulation for an alien subject to a final order of
deportation or removal to seek a stay of such order based on
the filing of an application under subsection (a).
``(2) During certain proceedings.--Notwithstanding any
provision of the Immigration and Nationality Act, the Secretary
of Homeland Security shall not order any alien to be removed
from the United States, if the alien is in exclusion,
deportation, or removal proceedings under any provision of such
Act and has applied for adjustment of status under subsection
(a), except where the Secretary has rendered a final
administrative determination to deny the application.
``(e) Period of Authorized Stay.--In the case of a nonimmigrant
described in section 101(a)(15)(H)(iv)(b), the period of authorized
stay as such a nonimmigrant shall be 3 years. The Secretary of Homeland
Security may not authorize a change from such nonimmigrant
classification to any other immigrant or nonimmigrant classification
until the termination of such 3-year period. Such period may not be
extended except in the discretion of the Secretary and for a reasonable
time solely in order to accommodate the processing of an application
for a change in nonimmigrant status to that of a nonimmigrant under
section 101(a)(15)(H)(iv)(a) pursuant to a petition described in
section 218A(a).
``(f) Required Use of Employment Eligibility Confirmation System.--
``(1) In general.--It is unlawful for a person or other
entity to hire for employment in the United States a
nonimmigrant described in section 101(a)(15)(H)(iv)(b)
without--
``(A) using the employment eligibility confirmation
system established under section 218A(j) to verify the
nonimmigrant's identity and employment authorization
before the commencement of employment;
``(B) advising the nonimmigrant of any
nonconfirmation with respect to the nonimmigrant
provided by such system; and
``(C) providing the nonimmigrant an opportunity to
correct the information in the system causing such
nonconfirmation before revoking the offer of employment
in order that the requirement of subparagraph (A) is
satisfied before the commencement of employment.
``(2) Civil money penalty.--If the Secretary of Labor
finds, after notice and opportunity for a hearing, a failure to
meet a violation of paragraph (1), the Secretary may impose a
civil money penalty in an amount not to exceed $5,000 for each
nonimmigrant with respect to whom such a violation occurs.
``(g) Extension of H-4A Labor Protections to H-4B Nonimmigrants.--A
person or other entity employing a nonimmigrant described in section
101(a)(15)(H)(iv)(b) shall comply with the requirements of clauses (ii)
through (vi) of section 218A(a)(2) in the same manner as an employer
having an approved petition described in section 218A(a). The Secretary
of Labor exclusively may exercise any enforcement authority granted in
the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) to address
a failure to meet a requirement of this subsection.''.
(b) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting
after the item relating to section 250 the following:
``Sec. 251. Adjustment of status to that of H-4B nonimmigrant.''.
SEC. 5. INCREASED FUNDS FOR UNITED STATES EMPLOYMENT SERVICE.
There are authorized to be appropriated to the Secretary of Labor
such additional sums as may be necessary for fiscal year 2004 and
subsequent fiscal years to permit the United States Employment Service
to assist State public employment services in meeting any increased
demand for services by employers and persons seeking employment
engendered by the amendments made by this Act.
<all>
Introduced in House
Introduced in House
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.
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.
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.
Referred to the Subcommittee on Employer-Employee Relations.
Referred to the Subcommittee on Workforce Protections.
Referred to the Subcommittee on 21st Century Competitiveness.
Referred to the Subcommittee on Immigration, Border Security, and Claims.
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