from Renewing America

Visa Overstays and Illegal Immigration: Finally, Some Real Numbers

January 20, 2016

Blog Post
Blog posts represent the views of CFR fellows and staff and not those of CFR, which takes no institutional positions.

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After several years of promising, the Department of Homeland Security this week finally delivered its first report documenting the number of "visa overstays" -- travelers to the United States who come on a legal visa but then fail to leave when the lawful duration of their stay expires. The good news is that roughly 99 percent of all visitors comply and go home when they are supposed to; the bad news is that, with more than 40 million visitors last year, the one percent who didn't go home still adds up to nearly 500,000 overstayers.

That number was seized on by immigration critics who are always eager to confirm their belief that the United States has no control over its borders. Senator Jeff Sessions (R-AL), who chairs the Senate Judiciary immigration subcommittee, said the report "boggles the mind." Well no, it actually doesn't. Indeed, the level of compliance is, if anything, astonishingly high. And by finally releasing the report, the Obama administration has offered up real numbers to refocus the debate on the right question -- if 99 percent compliance is not good enough, what will it take to get to 100?

First, a little context. It has long been known that some significant percentage of the roughly 11 million unauthorized immigrants in the United States did not come illegally across the land borders, but instead arrived on a legal visa -- usually a tourist or business visa -- and then just never went home. The best academic estimates have suggested that number might be more than 40 percent.

But that was always an educated guess. The United States has never had the capability to track reliably whether those who arrived on legal visas -- or who came from Europe under the Visa Waiver Program (VWP) -- actually left when they were required to. In 1996, Congress told the administration to begin such tracking, but progress was slow. U.S. airports were never configured to permit international passengers to be checked on departure. And at the land borders with Canada and Mexico, where a million people go back and forth each day, recording exits seemed all but impossible.

Successive administrations have chipped away at the problem, however. After the 9/11 attacks, in which several of the hijackers had overstayed, the government finally got serious. The United States now requires airlines to report details on all departing international passengers, and information exchange with the governments of Canada, and to a lesser extent Mexico, provides similar data on the land borders.

For several years, the administration had promised to pull together all this data and report to Congress on the actual number of visa overstays. Reporting those numbers matters. Congress has been considering legislation, for example, that would allow new countries to enter the VWP if they have a visa overstay rate of no more than three percent. The European Union is increasingly annoyed by what it sees as U.S. discrimination against EU members like Poland, Bulgaria and Romania that are excluded from the VWP, not to mention new legislation passed by Congress in December that bars Europeans with dual citizenship in Iraq, Syria or Iran from using the program. The EU has threatened to retaliate this year by denying visas to some U.S. travelers to Europe.

Based on the new data, if Congress moves to an overstay standard for the VWP, then Poland would be a lock for membership; the percentage of Poles who overstayed their visas in 2015 was just 1.49 percent, compared with a mere 0.65 percent for all VWP countries combined. Romania is just over 2 percent.

Those numbers will not be the ones highlighted by the administration's critics, however. Instead, they have seized on the 11 percent overstay rate for Afghanistan and the 7 percent rate for Iraq, even though the total number of individuals is tiny.

The real question should be how to improve on what is already a fairly solid performance by DHS. Here the critics really miss their mark. Senator Sessions, for example, wants vastly more resources dedicated to tracking down and deporting overstayers wherever they may happen to be in the country. Many in Congress remain eager for a "biometric" exit system that would match the fingerprints taken of arriving travelers with their departure. Both are expensive solutions that would not solve the problem.

While too little is still known about those who overstay, it's a good guess that a fair number do it inadvertently and plan to leave at some point. Travel to the United States is confusing at best; many foreigners hold visas with a duration of 10 years, but each visit can be no more than six months. Why not start with the easy remedies, like setting up automatic email notification to visa holders to remind them when their permitted stay in the country is about to expire? Or Congress could stiffen the penalties for overstaying, such as cancelling the visas of overstayers, to deter violations.

DHS already goes after any overstayer thought to pose a security threat. These simple compliance measures would shrink the haystack further, improving such targeted enforcement. And some overstayers are undoubtedly intending to stay and live as illegal immigrants, and as recent border crossers are rightly a priority for removal if and when they are found by immigration agents.

With the long overdue release of the report, there will certainly be many shrill warnings about the dangers of even a one percent overstay rate, and expressions of shock that not every visitor does exactly what they're required to do. But instead it should be seen as a starting point for continuing to develop sensible measures that improve visa compliance while maintaining the U.S. tradition as an open and welcoming country.

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