Visa Overstayers

March 2013

Nobody is sure how many people are in the U.S. on expired visas.¹

A long-standing problem in immigration enforcement — identifying foreigners who fail to go home when their visas expire — is emerging as a key question as senators and President Barack Obama chart an overhaul of immigration law. The Senate is discussing an overhaul that would require the government to track foreigners who overstay their visas. The problem is the U.S. currently doesn’t have a reliable system for doing this.²

There is no current comprehensive system to assure that the immigration authorities know whether persons who have been admitted as nonimmigrants remain in the country illegally. The illegal aliens who do not leave when their entry permit expires are referred to as overstayers. The current debate on immigration reform has as a central issue the question of how to combat illegal immigration, and that debate usually revolves around the issue of border control. But, how gain control over the nations’ borders deals with only part of the illegal immigration problem because it obscures the issue of the overstayers.

To understand the importance of the overstayer issue, it is important to have an idea of who they are, how many are they, how do they get away with violating the immigration law, what has been done to try to reduce the nation’s vulnerability to these lawbreakers, and what more can be done.

Who are the overstayers?

Overstayers fall into three categories: persons who were issued visas; persons who have entered without visas because they came from countries that have been granted participation in the Visa Waiver Program (VWP); and persons who entered from Canada or Mexico with Border Crossing Cards (BCCs).

Persons issued visas represent a wide spectrum of classifications and nationalities and periods of authorized stay. The largest groups of foreign entrants are tourists and business visitors. They are admitted for relatively short periods &dmash; usually not more than two months. Others, such as temporary skilled workers or intra-company transfer employees may be admitted for a number of years. Foreign students are generally admitted for an academic year. Seasonal crop workers are admitted for a specified period established by the petition of the employer, but less than a year. Statistics compiled by the Department of Homeland Security (DHS) registered in FY-2011 more than 34.7 million admissions of persons with visas.

Visa overstayers are generally not thought of as a major problem because visa recipients are scrutinized by the overseas consular officers to screen out persons considered likely to abuse their visa status. Nevertheless, visa applicants may lie about their intent when they apply for a visa, or they may change their intent while working or studying for years in the United States as a nonimmigrant. However, the visa applicant screening system was proven inadequate when all of the terrorists who participated in the 9-11 attacks were found to have been issued visas to enter the country.

Persons from one of the 37 countries in the VWP must provide biographic information prior to travel to the United States and be coming either for tourism or business. If they are coming for some other purpose, such as to work or study, they must obtain a visa. The DHS FY-2011 data registered more than 18.3 million admissions for travelers in the VWP.

Countries that participate in the VWP have been granted that privilege on the basis that the U.S. consular officials in those countries have found very few nationals from that country who apply for visas to be ineligible for the visa. The refusal rate must be below three percent to qualify.³ There is an aggressive campaign by the U.S. tourism and hospitality industries backed by the White House to redefine the criteria for participation in the program to expand its scope.⁴ In 2012, the Jobs Originated through Launching Travel Act was introduced, and among its provisions was raising the acceptable visa refusal rate to 10 percent. According to DHS officials, the current overstay rate for travelers in the VWP is “…less than one percent.”⁵ However, one percent of nearly 18.8 million annual entries in that program is nearly 190,000 entries. While foreigners entering through the VWP may enter multiple time during the year, an overstay rate of under one percent does not mean that the overstay rate from that program is insignificant.

The largest share of all nonimmigrant annual admissions is by cross-border visitors from Mexico and Canada. They enter for very short periods limited to short distances from the border for example to shop or for professional consultations. They amounted to more than 105 million admissions in FY-2011. If persons with BCCs intend to travel farther inland or for longer periods or for purposes other than pleasure or business, they are required to obtain visas.

BCCs are machine-readable and bear the photo and fingerprint of the visitor, but the cards are not generally machine read either for entry or for exiting the country, and, therefore, do not collect data that might reveal abuse of the entry permit.⁶

The Pew Hispanic Center estimated in 2009 that 55.8 percent of the illegal alien population was from Mexico and that Central American countries accounted for an additional 11.3 percent.⁷DHS estimated the Mexican share in 2010 at 61.5 percent and the share from El Salvador, Guatemala and Honduras at 13.6 percent.⁸ Neither source divided their estimates of the sources of the illegal alien population by means of entry.

How many overstayers are there?

As noted above, there are no reliable data on how many of today’s estimated nearly 12 million illegal aliens are overstayers. Estimates vary widely. In 2004 the U.S. Government Accountability Office (GAO) wrote that DHS estimated that there were 2.3 million overstayers &dmash; which at that time would have been about one-third of its estimate of the total illegal alien population.⁹The Pew Hispanic Center estimated the share of the illegal alien population that was overstayers at 25 percent to 40 percent in 2005.¹⁰ Less than a year later, a Pew Hispanic Center Factsheet stated that the estimated share was 45 percent of the illegal alien population.¹¹

A reality check on these estimates comes from a Congressionally-mandated survey conducted among the beneficiaries of the 1986 amnesty. That survey conducted in 1987 and 1988 found that three-fourths (75%) of the amnesty beneficiaries said that they entered without inspection (EWI), i.e. were illegal border crossers or entered by sea. The other quarter of the surveyed sample said they were visa overstayers (21%) or violated the entry with a BCC (3%).¹² These data, however, only applied to the amnesty beneficiaries who applied on the basis of having been illegally resident since before 1982. An additional two-fifths of the amnesty beneficiaries gained amnesty on the basis of being agricultural workers. These other beneficiaries  may be assumed to include very few, if any, visa overstayers. On that assumption, the share of visa overstayers who benefitted from the 1986 amnesty was closer to 15 percent.¹³

How do visa overstayers get away with violating the immigration law?

Most illegal aliens are assumed to be seeking better-paying jobs than they could obtain in their home country. That is as true for high-skills visa overstayers as EWI agricultural or construction workers. Despite the fact that it has been against the law for an employer to hire illegal aliens since 1986, the law enacted then did not provide employers with a means to verify whether the work-related eligibility documents they were required to record were counterfeit. As a result, the manufacture of fake work-related documents became ubiquitous across the country. Those fake documents included Social Security cards (SSNs), driver’s licenses, immigration documents and other identity documents.

As the illegal resident population learned that the new bar on hiring illegal aliens was toothless, a surge in the illegal alien population resulted. Very limited resources of the immigration authorities were employed to dealing with the growing overstay population, thereby further incentivizing disregard of the law. The federal government effectively abandoned an obsolete system of matching paper entry-exit records to reveal information about visa overstayers.

How have perceptions of the visa overstayer problem changed?

Following the first terrorist attack aimed at destroying the World Trade Center in Manhattan in February 1993, Congress in 1996 mandated the establishment of an electronic matching entry-exit system in the Illegal Immigration Reform and Immigrant Responsibility Act. Section 110 of IIRIRA required implementation of an automated entry and exit control system at the nation’s ports of entry to document the entry and departure of “every alien” arriving in and leaving the U.S. by September 30, 1998. However, before steps were taken to implement that system, objections from the tourism industry and others derailed implementation of the security measure.

The country was no better protected against visa overstayers in September 11, 2001 when the horrific terrorist attacks imprinted in the minds of all Americans that they had become a target of al-Qaeda at home. It quickly was determined that the terrorists had entered with visas, that  they used fraudulently obtained U.S. driver’s licenses to board the airlines they turned into weapons, and that five of them were visa overstayers at the time. According to a 2011 study by the U.S. Government Accountability Office (GAO), 36 of about 400 terrorists convicted by the United States since 9/11 had overstayed their visas to remain in the country.¹⁴

Those attacks led Congress to pass the Border Security Act of 2002 again mandating the implementation of a computerized, matching entry-exit database. The deadline for implementation was 2005, but it remains incomplete today.

DHS has not yet implemented a comprehensive biometric system to match available information (e.g., fingerprints) provided by foreign nationals upon their arrival and departure from the United States and faces reliability issues with data used to identify overstays. &dmash; GAO director Richard M. Stana, September 2011¹⁵

Has oversight of overstayers improved?

Two major changes have been implemented since 2002. The first is the requirement for foreign travelers arriving by air or sea to have electronically recorded a biometric identifier (fingerprint and digital photo) at the time of visa approval and have that available at the port of entry for matching with the arriving traveler. The second is for those travelers from VWP countries to provide biographic information and travel plans electronically to DHS in advance of their travel and to provide biometric data upon arrival.

In addition, DHS has explored a system for electronically collecting data on departing travelers at air and sea ports and matching it to the arrival data, i.e., the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT). A proposal to have airline personnel collect the records on deporting passengers was rebuffed by the airlines as not their responsibility &dmash; although they do electronically collect passport data on departing international travelers. A study at a limited number of airports using kiosks at departure gangways staffed by either TSA or Customs inspectors led to a conclusion that such a system would be complex and costly. A study of that effort by GAO noted that TSA didn’t perform biometric collection during peak traffic levels and CBP suspended fingerprint collection when persisting with it would have delayed flight departures.¹⁶

“Identifying individuals who overstay is a crucial component of securing our borders, and it is simply unacceptable that we are still unable to systematically identify people who overstay — some of whom may be terrorists waiting to attack innocent Americans.” Sen. Joseph Lieberman (I-Conn.)¹⁷

DHS is engaged in trying to convince congress that it does not need to have a comprehensive system to match entry and exit data. The administration argues that the comparison of the partial exit data that they collect from airlines as a result of recording passport information is sufficient. Nevertheless, Congress has not accepted that argument. Ongoing negotiations in both the Senate and House have included accurate identification of overstayers as a security issue, and any proposed immigration reform legislation will surely include reference to this issue. 

The absence of a comprehensive entry-exit matching system and the ongoing need to overcome that security gap is inconvenient to the travel, tourism, and hospitality industries. Their interest — and they have the backing of President Obama &dmash; is in promoting an expansion in the VWP in order to facilitate increased tourism. They have proposed increasing the visa refusal rate threshold from below three percent, as at present, to up to 10 percent and/or to base it on the rate of overstays rather than visa refusals.¹⁸ The difficulty with that proposal is that there are no reliable data on what that overstay rate may be.

Conclusion

The security gap represented by the inability of DHS to comprehensively match entry and exit records means that the government has no way to accurately identify the size of the visa overstayer problem. Similarly, it does not have the ability to identify the countries from which visa overstayers come or what demographic characteristics they may have in common. That means that DHS is unable to advise consular officials in a given country that a disproportionate number of travelers from that country with a specific type of visa have proven to be overstayers, and thus remedial measures to reduce the problem are not possible. Also, because DHS is unable to say what the overstayer rate is from a given country in the VWP, there can be no confidence in substituting an overstay rate for the visa refusal rate in deciding whether a country should be included in or remain in the program.

If DHS were able to establish a comprehensive entry-exit data matching system for air and sea travelers, it still would not be a comprehensive system if it did not apply to land ports of entry. This latter issue is the most difficult challenge. The volume of border crossings is so enormous that it already takes extended time for vehicular traffic to be inspected and admitted. There are also long lines of pedestrian crossers on a daily basis who live on one side of the border and work or shop or go to school on the other.

As long as there is not a comprehensive entry-exit matching system that includes land ports, there will be no assurance that someone who has arrived by air or sea is still in the country illegally because they may have left by land. Similarly, there will be no ability for DHS to develop information on aliens using BCCs to enter and then work illegally near the border or in the interior of the country if entry-exit data are not collected on those BCC-holders when they cross the border.

And as long as comprehensive exit-entry record matching is not achieved, there is no systematic means to develop needed information on the extent and nature of the overstay problem or to implement a system that effectively denies foreign visitors anonymity when they chose to become overstayers to take a job or plan an attack against the U.S. public.