Non-Immigrant Overstays: Why We Should Care

March 21, 2022

CNSI Blog

The United States is a welcoming nation, as well as a nation of laws. While we generally welcome nonimmigrants for temporary stays, we need to make sure they leave as required. A recently released report indicates that while we have made impressive strides in identifying those who do not leave as required, our enforcement efforts still require additional enhancements and focus.

The Department of Homeland Security’s Entry/Exit Overstay Report to Congress, mandated by Congress nearly 20 years ago, provides information on nonimmigrant overstays on an annual basis. An ‘overstay’ is a person traveling lawfully to the United States who stays past their expected departure date, and in some cases remains in the U.S.

An overstay may occur due to flight restrictions, a pandemic, a family issue, or other circumstance. However, many of those who overstay do so willfully in violation of the law without intending to ever leave.  And many are from countries we should all be concerned about. That is why we should care. The recent report, covering fiscal year 2020, shows that 46 million people traveled to the U.S. as nonimmigrants, and close to 700,000, or 1.5%, of them didn’t go home on time.

This report is an important window into a long-term challenge.

Focusing only on people trying to enter this country illegally on the Southern Border, and not also on overstays, misses a major opportunity to bring credibility to our immigration system. Studies indicate that over 40% of the current undocumented population originally arrived legally but failed to leave. Adding a half-million overstays a year makes solving our immigration morass all the harder.

On the bright side, the report notes several technology-related developments such as the increased use of facial recognition at 26 airport locations, a 98% match rate, and the expanded use of biometrics at land border exits to help close out entry/exit records. We urge Congress to continue to fund and the Administration to complete the biometric exit controls to all appropriate locations among our more than 400 ports of entry and exit.

However, there clearly are additional measures Congress and the Biden Administration can take to build more integrity in our immigration system when it comes to nonimmigrant entry/exit:

• DATA IMPROVEMENT. Congress should focus on the biometric and biographic data that DHS collects across the immigration spectrum and mandate and provide funding to DHS for all systems recording the arrival, stay, and departure of foreign nationals to be interoperable and to build a person-specific tracking capacity.

• OVERSTAY ENFORCEMENT SPECIAL UNIT. Congress should fund a special unit within U.S. Immigration and Customs Enforcement (ICE) whose mission would be to focus on those foreign nationals who either have not left the country before they become long-term overstays. This unit does not necessarily need to arrest short-term violators, but rather could communicate with these individuals about their lack of legal status and encourage that travel plans be arranged before physical enforcement is required.

• VISA WAIVER COUNTRY WARNINGS. Working with CBP, the Department of State should more aggressively use its authority to suspend a country’s status in the Visa Waiver Program when overstay rates are over 1%, and work with problem countries to better educate travelers of the rules and consequences of non-compliance. As VWP entrants have a specific 90-day entry duration, State and CBP should develop an automated email program that warns foreign nationals of the consequences of overstaying their visa and allowing travelers to confirm their departure date and port of entry. And for more egregious violators, more stringent requirements could be imposed on individual travelers.

• LAND BORDERS. The lack of outbound infrastructure at our land borders has required us to partner successfully with Canada to utilize their entry controls to act as our exit’ process. A similar effort is needed with Mexico. Longer-term, we should explore the collection of biometrics at land exit ports, particularly with pedestrians using facial recognition. As noted on page 3 of the DHS report cited above, the use of biometrics is our best solution to obtain an accurate account of foreign nationals departing the country.

We encourage Congress to take a hard look at why this report was mandated 20 years ago and how we can complete a comprehensive and effective entry-exit system.

A failure to do so will continue to add to our undocumented population, putting millions of people at risk of exploitation, and diminish the credibility of our immigration laws. This failure will also provide fuel to those who would prefer that we not encourage the world to come to the U.S. to study, conduct business, visit family, and see the wonders of our country. Unlike some of the seemingly intractable debates around immigration, the overstay issue is nonpartisan and solvable with a mix of technology and will.

Jim Williams is a leader with the Council on National Security and Immigration (CNSI). He was the U.S. General Services Administration’s Acting Administrator under President George W. Bush and was also the first Director of the U.S. Department of Homeland Security’s US-VISIT Program.

Bob Mocny is also a CNSI leader. He is a domestic and international security policy expert and served as the deputy director then director of the United States Visitor and Immigrant Status Indicator Technology – US-VISIT program from 2003 to 2016.