BACKGROUND
The United States has a major problem with visitors overstaying their visas, taking jobs and staying illegally as if they were immigrants. A chief reason for the problem is that we have no effective tracking system for visitors to our country. The most recent estimate of the INS is that about 40 percent of the nine to eleven million illegal alien residents in the United States originally entered the country with nonimmigrant visas.
There are a tremendous number of legal entries every year of nonimmigrants — in fiscal year 1996 the number of nonimmigrant entries was 24.8 million — and our business and tourist visitors are an important part of our economy. Nevertheless, the large number is not sufficient reason for having no effective systematic tracking system. The number of credit card transactions in the United States each year dwarfs the number of visitors, yet no one would suggest that the number of credit charges was too large to keep track of.
At present there is only a partial record of nonimmigrant entries. Foreign visitors who arrive at airports and ports of entry are required to complete an entry record (form I-94) to present with their passport and visa. Although the visa requirement is waived for several countries that have been determined to have little or minor abuse, they still fill our the I-94 form on their arrival. In 1996, nearly half (45%) of all of the nonimmigrant entries were by persons admitted under the visa waiver program.
THE 1996 ACT REQUIREMENT FOR DATA COLLECTION
As part of the immigration reform effort that resulted in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a provision was adopted that mandated that INS develop an automated capability to collect the data needed to identify visa overstayers. This provision addressed the gap in tracking information on visitors that was identified by the U.S. General Accounting Office (GAO) in a 1993 report on illegal aliens. Section 110 of IIRIRA requires the INS to implement an automated entry and exit control system at the nation’s ports of entry that will document the entry and departure of “every alien” arriving in and leaving the U.S. by September 30, 1998. This required data collection system is to include all noncitizens — nonimmigrants as well as immigrants residing in the United States who enter or depart at any port of entry.
OPPOSITION TO THE SECTION 110 REQUIREMENT
Section 110 was added to the IIRAIRA legislation late in the legislative process, after hearings and committee debate. It apparently took by surprise some interests that are affected by the new requirement. One of the parties that seems to have been caught unawares was the Immigration and Naturalization Service (INS). The Canadian government and U.S. interests that cater to Canadian cross-border travelers were another, and the travel industry that carries international visitors was another.
Following issuance of the 1993 GAO report on the inadequacy of the INS nonimmigrant tracking capability, the INS launched a pilot program at the Philadelphia International Airport to test a new automated data collection system. Working with one airline, electronic data on arriving and departing passengers were given to the INS for entry into its Nonimmigrant Information System (NIIS). By the end of September 1997, 12,619 records had been recorded on incoming nonimmigrants and 6,835 records on departing passengers were received and matched with arrival records. The INS found that the system worked.
However, the INS testified to Congress in November 1997 that it wanted section 110 amended to remove the data collection requirement at sea ports and at land borders (Canada and Mexico). The INS said that it was not prepared to undertake that comprehensive a system because of a lack of resources. It asked for authorization for pilot studies of how the system could operate at entry and exit points other than airports. At the same time it said that it is prepared to go ahead with implementing the system at airports on the basis of its already completed study.
The Canadian Government also expressed reservations to the US Government. It foresaw an unmanageable problem at the border if each of millions of Canadian border crossers were required to fill out a form I-94 and have it checked by the INS officials. They professed to see this causing hours of delay at the border. This argument resonated with northern-state merchants, who argued that delaying or discouraging Canadian tourists would hurt the region’s economy. Their cause was taken up in the House, where H.R.2955 sailed quickly through in 1997. In the Senate, Immigration Subcommittee chair Spencer Abraham, (R-MI), also introduced legislation along the lines sought by the INS (S.1360) to delay implementation of the record system. That bill has not yet come to a vote in the full Senate.
According to the INS the air industry also has expressed reservations about the new section 110 requirement. This presumably is due to the fact that to facilitate a speedy transfer of information on arriving passengers to the INS, the airlines have to assume an additional reporting requirement. So far, the INS has only asked the airline industry to supply it voluntarily the information in their computers on incoming passengers in the “Advance Passenger Information System (APIS).” Only some airlines have cooperated in the voluntary program, and the INS is apparently loathe to mandate compliance.
WHY A COMPREHENSIVE APPROACH IS ESSENTIAL
The Philadelphia airport pilot program demonstrates that the automated entry-exit system will work only if it is standardized for the country as a whole. If a passenger arrived in Philadelphia but left from a different airport, the entry record would end up unmatched by a departure record and would appear as a visa overstayer. Conversely, a departing passenger’s entry record might not be found if the entry was at a different location. Similarly, if an international traveller arrives by air and departs by land, the capability must exist to record that departure and match it to the entry record if the control system is to work adequately.
I-94 forms are now required of arriving foreign travelers at all international airports and seaports and for those international travelers crossing land borders who intend to travel into the interior of the United States (beyond 25 miles of the border) or for protracted periods. However, the system has been badly flawed by the lack of systematic data collection, especially on departing passengers — which is the responsibility of the airline or shipping line. According to Michael Hrinyak, the INS Deputy Assistant Commissioner for Inspections, the current data collection effort at airports — the most effective link in the system at present — collects entry and exit data on only approximately 12 percent of all nonimmigrant travellers. The INS has no systematic system to collect I-94 forms from land border departing travellers.
FAIR’S POSITION
It should be clear that accurate data on visa overstayers is essential to effective enforcement of the nation’s immigration laws. This is especially important if the visa waiver program is to be continued. The entry-exit document reconciliation system is the only way to have an accurate and comprehensive idea whether visitors from a given country are abusing our laws and should, therefore, be more carefully scrutinized by U.S. consular officials overseas. The data collected in a comprehensive, automated system will reveal not only who is violating the immigration law, but also patterns among nationalities and types of visas, and ports of entry, magnitude of the problem and provide useful information to be able to launch efforts to find and deport the offenders and to design remedial procedures to diminish the problem.
FAIR wholeheartedly supports the objective of IIRAIRA section 110. At the same time it recognizes that there is a legitimate distinction between most international travelers to the United States and those travellers who live near the border and cross it on a daily or frequent basis for employment, shopping or visits. That distinction is the basis for the current system of border crossing cards for Mexican border residents. Card holders may cross into the United States without visas for periods of up to 48-hours as long as they are not travelling more than 25 miles in-land from the border. The Border Patrol operates controls on highways and common carrier terminals to enforce this provision. There seems to be little need to change this system by requiring these visitors to complete the I-94 form for each crossing. It is clear that it would be a major additional burden on the INS.
However, a Mexican or Canadian who wishes to travel into the United States for a longer period and/or beyond the border area must obtain a visa. That person, upon crossing the border must present the I-94 form and obtain an entry stamp in the passport. That same person or any other international traveller completing a trip to the United States is required to turn in the I-94 form upon leaving the country. The INS needs to develop a systematic process to remind travelers of that requirement and to collect the forms. This is true for the land borders with both Canada and Mexico. If local Mexican and Canadian crossers are exempt from the I-94 requirement, there should be no significant traffic tie-up as soon as the system becomes routine.
It is unacceptable that some common carriers are remiss in collecting I-94 forms from departing passengers. To improve cooperation INS must put teeth into current penalties for non-cooperation. Spot checks of passengers at departure gates — to identify lax airline compliance — would serve this purpose. It should be a requirement for doing business in the United States that common carriers provide electronically the input for the automated APIS entry-exit system. The data is already in the computers of the common carriers, and the only expense is likely to be a modest software design outlay to generate the reports in a form specified by the INS. The carrier then would have additional responsibility for reporting to the INS only if at check-in the data on the traveller proved to be incomplete or inaccurate.
The efforts currently underway in the Senate and the House to amend section 110 could have the effect of eviscerating the entire system. While local land border crossers could be exempt from a comprehensive automated entry-exit data system without compromising its effectiveness, the effort to entirely exempt land border crossers from the system leaves a loophole so wide that the system would be seriously weakened. Similarly, proposals to relegate to further study and experimentation any further implementation of the system for sea and land ports may have the effect of postponing indefinitely the installation of a comprehensive and effective record-keeping system to enforce the immigration law.
Updated 6/98
