[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1461 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                S. 1461

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 25 (legislative day, July 21), 2003

  Mr. McCain introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 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 u.s. 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 the 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>