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

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

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.

END