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Kolbe, Flake Introduce Border Security and Immigration Improvement Act; McCain Drops Companion Bill in the Senate

Aims to Halt Illegal Immigration, Make it Easier For Foreign Workers to Apply For Visas and Offer Incentives For Illegal Immigrants in US to Seek Legal Status

(Washington, DC)  --  Representative Jim Kolbe (R-AZ), a member of the Homeland Security Caucus, today introduced the Border Security and Improvement Act, HR 2899, along with Rep. Jeff Flake (R-AZ), a member of the Judiciary Committee’s subcommittee on Immigration, Border Security and Claims.


The bill aims to significantly reduce the alarming levels of illegal immigration, address projected labor shortages and offer incentives to the millions of undocumented immigrants currently living in the U.S. to seek legal status.


“With this legislation, we have worked hard to find a practical and progressive way to deal with the many problems associated with illegal border crossings and the need to find workers to fill positions no domestic worker is willing to take,” said Rep. Kolbe.


The bill creates two visa categories – one for foreign workers currently living outside the U.S., the other for foreign workers currently living in the U.S. in an undocumented status.

The bill:


  • Improves border security by reducing undocumented immigration;
  • Does not provide amnesty for current undocumented population but provides a way for undocumented immigrants to work toward legal status;
  • Provides protections against employer abuse;
  • Penalizes people who have broken the law by entering illegally;
  • Creates a new visa category which will be highly attractive to employers due to its simplicity and accessibility.  The visas will also be attractive to employees due to its portability feature (can be used across industry sector) and its’ flexibility (can be used when changing jobs, returning to the country of origin or becoming a U.S. citizen);
  • Includes equal treatment of al workers in US (foreign & domestic);
  • Involves a market driven process;
  • Aims to eliminate a future class of undocumented workers; and
  • Is family friendly;


“Our new visa programs will allow a safe and accessible way for United States businesses, which are desperate to find individuals to fill their job openings, to find and employ able and hard working foreign workers,” continued Kolbe.



Fact Sheet: Why Introduce a Border Security and Immigration Improvement Act

Frequently Asked Questions and Answers

Section by Section

EWIC press release




The Border Security and Immigration Improvement Act

Fact Sheet



Why introduce a Border Security and Immigration Improvement Act?


Homeland security


Each year, the federal government uses enormous amounts of resources to attempt to prevent the crossing of thousands of illegal immigrants. Congress needs to establish a legal structure for the current flow of immigrants who enter the U.S. to work at jobs no U.S. citizen wants. Such a structure will shift 99 percent of the crossings from anywhere along the 6,000-mile northern and southern land borders to a few ports of entry, where they can be managed. This change in policy would allow the Border and Transportation Security Directorate to focus its border resources on the criminals and terrorists, dramatically improving the security of our nation.

Worker shortage


The American population is growing older.  The Baby Boomers are retiring and leaving in their wake a number of jobs needing to be filled. Job projections for the next 10-15 year show available worker numbers declining drastically. Statistic from CRS


We must look long term and acknowledge that a flexible temporary worker program will guard us against future worker shortages. According to a Northwestern University study published in December 2002, the civilian labor force grew by 11.5 percent, and "had it not been for new immigration, the nation's labor force would have grown by only 5 percent over the past decade and would have seriously constrained both job growth and economic growth.”


As Americans become more educated and skilled it is often difficult to find workers willing to work in positions that are considered low skilled, such as agriculture workers and hotel attendants. While American workers are often unwilling to do these jobs, every day people die in the desert trying to cross the border to take these jobs. By creating a temporary worker program, we can bring workers into the country, in a safe and legal way. Workers who are willing to work hard at these low skilled jobs in create a better life for themselves and their families back home.


Undocumented population present in U.S.


Any immigration reform bill must include the illegal immigrants currently living within the U.S. This segment of society must be offered an incentive to seek a legal status both for the security of and to ensure the illegal workers are not exploited.





  1. How will this proposal help with Homeland Security?


According the Border Patrol Apprehension statistics, 1% of those apprehended while crossing the border are criminals.  With the Border Security and Immigration Improvement Act, (BSIIA) the other 99% of immigrants coming to the US for work would be funneled through Ports of Entry along the border, making the crossings easy to manage and monitor.  Consequently, the Department on Homeland Security will have more time and resources to invest on monitoring and apprehending those few who do attempt to cross the border illegally.  Permitting those already present in the United States to participate in the program will also encourage millions of currently undocumented workers to register with the government.  Shrinking the undocumented population will provide less cover for terrorists who do enter the country and attempt to blend in.


  1. What are the new visa categories established by this bill?


The Border Security and Immigration Improvement Act uses two new visa classifications to regulate the flow of foreign workers.  The H-4A allows new foreign temporary workers to enter and work within the United States through a legitimate and safe process.  The H-4B visa program enables the U.S. to eliminate the current class of undocumented aliens.  The H-4B program, while penalizing those that have entered the country illegally, allows workers that have been contributing to the nation’s economy to work toward future legal, permanent status for both themselves and their families. 


  1. What components of this bill are new and innovative?


Three key components of this legislation make it different from previous proposals.  First, the Electronic Job Registry operated through the Department of Labor allows employers to post jobs for Americans, as well as foreign workers.  The Registry allows people around the world to view job opportunities and vacancies within the United States after the position has been posted for U.S. workers for 14 days.  If a foreign worker applies and is selected for the posted position, employers will be required to re-advertise available jobs held by temporary foreign workers every three years to ensure that qualified domestic workers are not available for the job.

   The second innovative component involved in the BSIIA proposal is the Employment Eligibility Confirmation System.  This system allows employers to check and affirm the work eligibility of a foreign worker without having to question a worker’s legitimacy.  After a hiring decision is made, the employer then submits certain identifying information to the federal government for verification via the secure Confirmation System.  Such information includes the employee’s name,, Social Security or alien identification number and worksite location  After the government confirms the eligibility of the employee, he can print out a confirmation form to include in the employee’s file, available for inspection if necessary.  If the employee’s work eligibility is not confirmed by the system, the employee then has 10 days to resolve the status issue, or is conclusively determined to be ineligible to work. 

   A third original component of the BSIIA proposal is the Self-Petitioning option for H-4A visa holders.  At the start of the temporary worker’s third year holding an H-4A visa, having gone through the Job Registry process twice, the temporary worker can then self-petition for Legal Permanent Residence.  In this instance, it is not necessary for the worker to have a sponsor, such as an employer or family member, to petition for them for Legal Permanent Residency.


  1. How does the Kolbe-Flake plan help to resolve the issues facing the families and dependents of undocumented individuals?


The spouses and children of undocumented individuals are also eligible for the H-4B visa, which lasts three years.  At the expiration of the three-year H-4B visa, the spouses and children of workers adjusting to the H-4A visa category may obtain a dependent visa (H-4A-2).


  1. How does the BSIIA help to resolve the issues facing the families and dependents of temporary foreign workers entering the United States to work?


The spouses and immediate family members of temporary foreign workers entering the United States under the H-4A visa will be eligible for priority visitor visas to visit their loved ones working in the U.S.

   The H-4A visa for temporary foreign workers will also provide for frequent travel and visits outside of the United States by the worker.


  1. How will this legislation help to prevent the ever-increasing number of deaths along the border?


With this easily accessible process, people wishing to enter the country as temporary workers will no longer have to risk the long, dangerous and expensive illegal journey across the border into the United States.  They will now be able to enter through Ports of Entry, allowing for a safe and documented entry in to the United States.  


  1. Does this bill provide amnesty for undocumented individuals?


The proposal penalizes those who entered the United States illegally by requiring them to pay a substantial fee of $1,500 in order to participate in the temporary worker program.  These workers would not be granted automatic legal permanent resident status, nor would they permitted to “jump the line” ahead of those who are entering through a legal process.  They would be required to receive a mandatory three-year visa before they would have the option of applying for an adjustment to Legal Permanent Residence with the sponsorship of an employer.  If they opted to self-petition, they would be able to do so after a six-year time period (three years under the H4-B visa, and three years under the H4-A visa). 


  1. Why will employers choose to use this visa?


This is a simple, transparent, market-driven system that makes it easy to confirm the employment eligibility of workers.  By providing employers with a legal, stable source of workers, this bill eliminates the reason most often cited by employers for hiring undocumented workers: an inability to find domestic workers willing to do the type of work the employer needs in a US population that is increasingly older and well-educated.


  1. How does this proposal provide for the protection of US workers?


The proposal mandates that all employers advertise for two weeks any available jobs to domestic U.S. workers.  These job advertisements will be available through an electronic job registry, and circulated by the Secretary of Labor to public employment services throughout the country.  Employers are required to offer the available job to any qualified U.S. worker who may apply.  Employers will be required to re-advertise available jobs held by temporary foreign workers every three years to ensure that qualified domestic workers are not available for the job.

   In addition, employers must pay a petitioning fee ($1,000 for large businesses, $500 for small businesses) when applying for a foreign worker to enter the U.S., thereby making a domestic worker more financially advantageous.

Employers are prohibited from hiring foreign workers to replace striking or fired workers holding a similar position 


  1. Other than being able to enter the country legally, what are the benefits of this program to foreign workers?


Along with the ability for foreign workers to exercise portability in the job market and benefit from the protection of U.S. labor laws, H-4A visa holders have the opportunity to self-petition for LPR status after three years as an H-4A visa holder. 


  1. How will this prevent worker abuse?


Under this program, H-4A and H-4B workers enjoy the same rights, wages, working conditions and protections as American workers.  These rights include the ability for workers to change jobs if they are not pleased with their current work environment.  Portability is included within this legislation to ensure that all workers have the right to decide who they work for and to ensure safe and healthy work conditions.




12. Will the H-4B allow people that are here illegally to cut in line ahead of those that                  are entering the country legally?    


H-4B holders will not be cutting in line ahead of those that are entering the country legally.  After participating in the H-4B program for three years, the H-4B holder then enters the H-4A system behind those who have entered legally and are already having their H-4A applications processed.


13. How will this prevent document fraud?


Biometric visas will be required for all of the visas established by this bill.  After an employee has been hired, the employer must confirm the eligibility of the worker through the Employment Eligibility Confirmation System.  This system will also be used to check the eligibility of H-4B visa holders.


14. How does the BSIIA address the issue of seasonal workers?


Many of the jobs that foreign workers would apply for involve seasonal work, such as work in resorts or agriculture.  Because of this, provisions are made to accommodate workers who wish to return to their home countries in the off-season.  Within the H-4A visa program, individuals who are unemployed for more than 45 days within the United States must return to their own country.  However, the worker may return to the United States at any time within the two-year visa period if he finds other employment through the job registry. 


15. What wage protections are available for undocumented immigrants within the H-4A and H-4B programs?


H-4A and H-4B visa holders are eligible for all wage protections currently offered to immigrants and U.S. workers.  These include the same benefits, wages, working conditions, and right to join or organize a union as other employees.  Employers will be required to enforce all federal, state and local labor laws.  These protections will be enforced by the Secretary of Labor.


16. How will the fees collected through these two visa programs be used within the federal government?


The fees collected from those petitioning and applying for the H-4A and H-4B visa programs will be used in the implementation and processing of the visas and applications.


17. What federal benefits are available for these immigrants?


This legislation makes no changes to current law regarding what federal benefits immigrants are eligible for. 





The Border Security and Immigration Improvement Act

Section-by-Section Analysis




·        Establishes H-4A and H-4B temporary worker non-immigrant categories.




Requirements/Process for Petitioning for Worker

·        Petitioning fee for employer to petition for worker to enter the United States.

o       An owner of a small business, those employing 500 persons or less, will pay a fee of $500 to hire an H-4A worker.

o       An owner of a large business, those employing 500 persons or more, will pay a fee of $1,000 to hire an H-4A worker.

o       If a business hires a worker that is already within the country, the same fee applies. 


·        Approval of petition can only occur after the employer has:

o       Used the electronic job registry.

o       Checked the worker’s identity and employment authorization through the Employment Eligibility Conformation System.

o       Provided the non-immigrant worker with the same benefits, wages, and working conditions, and right to join or organize a union as other employees.

o       Agreed that the non-immigrant worker will work the same hours as other U.S. employees.

o       Complied with all federal, state, and local labor laws.


·        The non-immigrant visa fee must not exceed the cost of processing and adjudicating the application.


·        The employer need not pay the petitioning fee if they rehire the same H-4A worker who is renewing the visa.


·        Establishment of an Employment Eligibility Confirmation System:

o       An Internet-based system for employers to use to easily confirm if a person is authorized to work under the H-4A program.

o       The system must provide the employer with a confirmation or a tentative non-confirmation within three working days.

o       In the case of a tentative non-confirmation, the Secretary of Homeland Security, in consultation with the Commissioner of Social Security, must perform a secondary check and provide a final answer to the employer regarding the eligibility of the employee within ten working days.

o       The design of the system must maximize reliability and ease of use, prevent unauthorized disclosure of personal information, and safeguard against unlawful discriminatory practices.

o       The confirmation system must compare the name, the alien work authorization number, geographic location, and date of inquiry. 

o       Employers not complying with the Employment Eligibility Confirmation System will be penalized.


·        Employer must use the electronic job registry to advertise job opportunities exclusively to US workers for 14 days.


·        The non-immigrant worker can use the visa to accept new employment through the electronic job registry before his visa expires.


·        All Federal State, and local laws regarding wage shall apply to immigrants in the H-4A program. 


Visa Characteristics

·        The visa is valid for three years and may be renewed one time for a total of six years, but renewal requires the employer to re-advertise the job using the electronic job registry to ensure there is still no U.S. worker available.


·        H-4A workers can adjust to the lawful permanent resident status without numerical limitation if:

o       The worker’s employer petitions, or

o       The worker self-petitions after three years in the U.S. with an H-4A visa.


·        The visa will include a biometric identifier.


Employer/Worker Responsibilities

·        If the employer wrongfully dismisses the non-immigrant worker before the end of the two-year duration of the visa, they must pay the transportation costs of returning the worker home.


·        The H-4A worker must depart the U.S. if he fails to work for 45 consecutive days but may return during the two year visa period the visa is issued for at any time if they find he finds other employment through the job registry.


·        The non-immigrant worker is not eligible for future H-4A visas if he violates the conditions of the visa.


·        If an individual enters the country illegally (i.e. is in the IDENT system) after the bill’s date of introduction (even once), they are prohibited from obtaining an H-4A visa for three years (using 3/10 year bar as a precedent).


·        Employers are prohibited from compelling workers to sign an agreement that they will not work for a competitor.


·        Employers are prohibited from hiring H-4A workers for 90 days after they dismiss a U.S. worker holding a similar position.


·        Employers are prohibited from hiring H-4A workers to replace a striking worker holding a similar position.


·        An employer is prohibited from accepting a payment from a foreign temporary worker, and the employee is prohibited from paying the employer for the application fee.  (The intent of this language is to prohibit "kickback" payments to the employer for hiring a foreign worker.)


·        The Department of Labor will exercise any authority granted in the Fair Labor Standards Act of 1938 to enforce the above-stated requirements.


·        Employers violating all above-stated requirements will be penalized.


·        The Department of Labor will develop rules and regulations regarding the conduct of labor recruiters.


Nuclear Family

·        The spouse of a non-immigrant worker can not accompany the worker unless they also have an H-4A visa.


·        The children of the non-immigrant worker cannot accompany the worker unless:

o       The worker is the sole custodial parent, or

o       Both custodial parents of the child are H-4A workers.


·        Spouse and children of H-4A worker receive priority for visitor visas.

o       The visitor visas consideration will rely on the “preponderance of proof.”


·        The visa provides for frequent travel across the border by the worker for family visits.





Visa Characteristics

·        If a person meets the following requirements, they may obtain an H-4B visa –

    Entered the U.S. before August 1, 2003.

    Resided and worked in the U.S.

    The applicant cannot obtain an H-4B visa if they:

a.       are prohibited for criminal reasons [8USC1182(a)(2)]

b.      are prohibited for security reasons [8USC1182(a)(3)]

c.       are prohibited because they may become a public charge [8USC1182(a)(4)]

d.      have been convicted of a felony or misdemeanor

Ø      laws related to entering the country illegally or obtaining false identification will not exempt an applicant. 

e.       have assisted in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; and

f.        are not registered or registering under the Military Selective Service Act, if so required.


·        A spouse or child of an H-4B worker is also eligible for this visa.

    Should the H-4B worker adjust to H-4A status, and the spouse and/or child are not eligible to also adjust (i.e. not working), the spouse and/or children may obtain a dependent visa [such as H-4A-2].


·        The H-4B non-immigrant worker must pay a fine of $1,500 (children under the age of 17 do not have to pay this fine).

    The $1,500 fine may be paid by garnishing 10 percent of the disposal pay of the worker (interest must also be paid under this option).

    Each fee All fines will go directly toward the costs of implementing and processing the visa program.


·        The H-4B visa is valid for three years and is non-renewable.


·        The visa will include a biometric identifier.


·        The H-4B non-immigrant worker must pay the administrative costs of the application.


·        The undocumented alien will not be deported while his H-4B visa is being processed.


·        The 3/10 year bar, document fraud ban, etc., are waived for those adjusting from undocumented status to H-4B status.


·        The H-4B non-immigrant cannot change their non-immigrant classification for three years and the visa cannot be extended (except for a reasonable time period needed to apply for an H-4A visa).


·        Employers are not required to advertise jobs to U.S. workers for 14 days in the electronic job registry when an undocumented worker transitions into H-4B status.


EWIC Essential Worker Immigration Coalition


EWIC Commends Immigration Reform Landmark

Press Release:  Washington, D.C., July 25, 2003

The Essential Worker Immigration Coalition (EWIC) commends the introduction today of the Land Border Security and Immigration Improvement Act by Representatives Jim Kolbe and Jeff Flake and Senator John McCain.

"While we are disappointed that the bill is not bipartisan and there are several provisions that seriously concern us, we hope introduction of the first comprehensive immigration reform bill in three Congresses will help push the debate forward," said John Gay, Vice President, Governmental Affairs, American Hotel & Lodging Association and EWIC co-chair.  "We know the authors are committed to working with Democrats, which is crucial to the ultimate success of reform."

"These Members of Congress are to be commended for recognizing that our immigration system is broken and requires fundamental reforms," said Randel Johnson, Vice President for Labor, Immigration and Employee Benefits of the U.S. Chamber of Commerce, "and we look forward to working with them and others to improve the bill and enact comprehensive immigration reform."

EWIC ( is a broad-based coalition of national businesses and trade associations from across the industry spectrum concerned with the shortage of both semi-skilled and unskilled ("essential worker") labor. EWIC supports policies that facilitate the employment of essential workers by U.S. companies that are unable to find American workers.

For more information, contact EWIC co-chairs John Gay at 202/289-3123 and Laura Reiff at 703/749-1372.