[Congressional Record Volume 149, Number 112 (Friday, July 25, 2003)]
[Senate]
[Pages S9969-S9973]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCAIN:
  S. 1461. A bill to establish two new categories of nonimmigrant 
workers, and for other purposes; to the committee on the Judiciary.
  Mr. McCAIN. Mr. President, in the aftermath of the September 11 
attacks, our Nation awoke to the realization that we are not as safe as 
we once believed. Soon after, we began critical efforts to improve our 
homeland security. Those efforts remain ongoing today. As we work to 
improve the security of our homeland, securing our borders remains one 
of the most difficult and important challenges facing our Nation today. 
The simple fact is, our borders are not secure, and no amount of money, 
equipment, or manpower alone will not ensure the safety of our Nation.
  Over the past several years, I have supported many efforts to improve 
border security and address the repercussions of poor enforcement and 
failed immigration policies. It is imperative that we not shirk from 
what are Federal responsibilities. We must address the many unfunded 
mandates born by States and local communities because control of 
immigration is principally the responsibility of the Federal 
Government. We must continue efforts designed to improve infrastructure 
and technology at and between our ports of entry as well as enhance 
coordination between Federal, State and local law enforcement 
personnel. However, without comprehensive immigration reform, all of 
these efforts will be ineffective and meaningless.
  In order to address these concerns and to balance the need to secure 
our borders while addressing the inconsistencies and contradictions of 
our Nation's immigration policy, I am introducing the Border Security 
and Immigration Improvement Act. This bill is the first comprehensive 
immigration reform package introduced this Congress, and I hope that it 
will serve to initiate an important and necessary dialog so that we may 
address the security needs of our country and reform our failed 
immigration system.
  The Border Security and Immigration Improvement Act establishes two 
new visa programs. One addresses individuals wishing to enter the 
United States to work on a short-term basis while the other will be 
available for the undocumented immigrants currently residing in the 
U.S.
  Fully cognizant of the failures and abuses of previous temporary 
worker programs, I am committed to ensuring that this new program 
prevents abuse and protects the rights of workers. Important 
protections are built into the new visa program. Complete portability 
across all sectors will allow workers the freedom to leave abusive 
employers and seek work elsewhere. This program would allow employers 
to immediately apply for permanent resident status on behalf of the 
employee, but unlike previous programs, this bill would allow workers 
self-petition after 3 years so that no employer could use residency 
status to manipulate and abuse any worker. Additionally, all U.S. labor 
laws are applicable to ensure full worker protection.
  In another departure from previous visa programs, this legislation 
does not put a finite number on the available visas, rather it is 
designed to allow the market to dictate the need for workers. Through 
the establishment of a job registry system, U.S. employers in need of 
workers can post available jobs on this registry. To ensure that U.S. 
workers do not lose out on valuable job opportunities, each job posted 
on the registry must be available to U.S. workers for a minimum of 14 
days before it is open to a foreign worker. Additionally, to ensure 
that we do not incentivize employers to look abroad for labor that is 
less expensive than the domestic workforce, all employers will be 
charged a fee for the worker's visa.
  The second visa program included in this bill addresses the estimated 
6 to 10 million people currently residing in the United States. Today, 
undocumented immigrants live in constant fear, in a shadowy underground 
that affords them limited opportunities and frequently leads to both 
exploitation and abuse. Establishing a process by which this population 
can voluntarily come forward and seek legal status is a necessary 
component to comprehensive immigration reform and ensuring the safety 
of our Nation.
  Under this bill, every undocumented individual currently residing in 
the U.S. will have the opportunity to obtain a visa authorizing them to 
remain in the United States and work for 3 years, after which time they 
may apply for the temporary worker visa program which has a built in 
path to permanent legal residency.
  Every year, millions of people enter this country legally, in a 
monitored

[[Page S9970]]

and controlled manner. Although a majority enter legally, an increasing 
number of people risk their lives to cross our borders illegally. 
According to the U.S. Border Patrol apprehension statistics, it is 
estimated that almost 4 million people crossed our borders illegally in 
2002. The majority of these people are seeking the American dream, 
looking for a good paying job that will enable them to provide a better 
life for themselves and their families. We must recognize that as long 
as there are jobs available and employers in need of workers, people 
will continue to migrate. Our Nation was built by immigrants, and like 
those who came hundreds of years ago, this population represents a 
significant portion of our workforce.
  In recent years, improved security and enhanced infrastructure in 
California and Texas have created a funneling effect through the 
Sonoran desert, which straddles Arizona and the Mexican State of 
Sonora. This is easily the most treacherous portion of the southern 
border, and in recent years, it has become more dangerous. Last fiscal 
year, an estimated 320 people died crossing the southern border into 
this country, 145 of those deaths were in the Arizona desert. Since 
last October, over 200 people have died, 113 along the Arizona border. 
The Arizona Republic found that undocumented immigrants are seven times 
as likely to die crossing the Arizona-Mexico border now than they were 
5 years ago.
  Many people desperate to cross the border pay large sums of money to 
human smugglers who guarantee their entrance into the U.S. Our Nation 
witnessed the extreme danger of human smugglers first hand in May when 
100 people were found packed into a tractor trailer truck at a truck 
stop in Victoria, TX. These people, abandoned by their smugglers, were 
trapped for hours in the extreme desert heat. Nineteen people died as a 
result.
  These are not merely numbers, these figures represent men, women, and 
children. This unnecessary loss of human life deserves our Nation's 
attention and should compel all of us to action. Our current border and 
immigration policies create a contradictory situation whereby we 
attempt to keep people from crossing our borders illegally but reward 
those who survive the dangerous journey with bountiful employment 
opportunities. This system is not sustainable.
  In addition to the human tragedy, this mass migration also represents 
a threat to our national security. Although over 99 percent of the 
people crossing our borders do not intend to harm Americans, we must be 
cognizant of the fact that a small number do. As long as we are unable 
to control and monitor who enters our country and what they bring in, 
Americans will not be safe. We must establish a system by which to 
allow people seeking work to enter the country in a safe manner, 
through controlled ports of entry--freeing up Federal agents to monitor 
the border and focus their efforts on the individuals who do pose a 
potential threat to our national security.
  We can no longer afford to bury our heads in the sand and expect this 
problem to go away. Anyone who has visited the border and seen the 
challenges we face first hand or who hears of the number of unnecessary 
deaths, must recognize that we can no longer ignore this problem. It is 
time we dispense with partisan politics and put human lives and our 
national security above special interest groups. I hold no illusions. 
Reforming our Nation's immigration laws will not be an easy task. This 
will be a long and arduous process, however we must not let the 
difficulty dissuade us from trying, and this legislation represents a 
meaningful first step. I am committed to this issue and to working 
towards a balanced solution to this crisis.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1461

       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

[[Page S9971]]

     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--

[[Page S9972]]

       ``(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

[[Page S9973]]

     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.
                                 ______