Nonimmigrant Overstays: Brief Synthesis of the Issue

Congressional research reportJan 22, 2014

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Nonimmigrant Overstays: Brief Synthesis of

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January 22, 2014

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RS22446

Nonimmigrant Overstays: Brief Synthesis of the Issue

Summary

As Congress debates comprehensive immigration reform and its component parts of immigration

control (i.e., border security and interior enforcement), legal reform (i.e., temporary and

permanent admissions), and the resolution of unauthorized alien residents, concerns arise over the

capacity of the Department of Homeland Security (DHS) to identify and remove temporary aliens

on nonimmigrant visas who fail to depart after their visas expire. It is estimated that each year

hundreds of thousands of foreign nationals overstay their nonimmigrant visas or enter the country

illegally (with fraudulent documents or bypassing immigration inspections). The most recent

estimate (published in 2013) is that 11.7 million foreign nationals resided in the United States

without authorization in 2012.

DHS does not have reliable data on emigration and nonimmigrant departures from the United

States. As a consequence, reliable estimates of the number of nonimmigrant overstays are not

available. Over the years, the overstay estimates ranged from 31% to 57% of the unauthorized

population (depending on methodology). A 2013 study of visa overstays from 2000 to 2009

estimated that total nonimmigrant overstays to the United States dropped from 705,000 per year

to 190,000 per year, or about 73%, over the decade. As of June 2013, the U.S. Government

Accountability Office (GAO) reported that DHS’s unmatched arrival-departure records totaled

more than 1 million; however, the failure of DHS to consistently update the alien’s record—for

example, if the authorized period of admission is extended, if deferred departure is granted, or if

the immigration status changes—is a major factor that prevents DHS from calculating reliable

estimates of overstays.

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Nonimmigrant Overstays: Brief Synthesis of the Issue

Contents

Background ...................................................................................................................................... 1

Elements of Nonimmigrant Visa Control ........................................................................................ 2

Visa Issuance ............................................................................................................................. 2

Border Inspections ..................................................................................................................... 3

Emigration and Exit Data .......................................................................................................... 3

Past Legislative Action on Nonimmigrant Overstays ...................................................................... 5

Illegal Immigration Reform and Immigrant Responsibility Act................................................ 5

Enhanced Border Security and Visa Entry Reform Act of 2002 ............................................... 5

Legislation Implementing the 9/11 Commission Recommendations ........................................ 6

Estimating Overstays ....................................................................................................................... 7

Early Demographic Estimates ................................................................................................... 7

Administrative Estimates........................................................................................................... 8

Recent Demographic Estimates ................................................................................................. 8

Concluding Comments .................................................................................................................... 9

Figures

Figure 1. Estimated Annual Trends in Visa Overstays in the United States .................................... 9

Contacts

Author Contact Information........................................................................................................... 10

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Nonimmigrant Overstays: Brief Synthesis of the Issue

Background

Foreign nationals not legally residing in the United States who wish to come to the United States

generally must obtain a visa to be admitted.1 Under current law, two departments—the

Department of State (DOS) and the Department of Homeland Security (DHS)—each play key

roles in administering the law and policies on the admission of aliens.2 DOS’s Bureau of Consular

Affairs (Consular Affairs) is the agency responsible for issuing visas, DHS’s U.S. Citizenship and

Immigration Services (USCIS) is charged with approving immigrant petitions, and DHS’s

Customs and Border Protection (CBP) is tasked with inspecting all people who enter the United

States. DHS’s Immigration and Customs Enforcement (ICE) is the lead agency on enforcing

immigration law in the interior of the United States.3

As Congress debates comprehensive immigration reform and its component parts of immigration

control (i.e., border security and interior enforcement), legal reform (i.e., temporary and

permanent admissions), and the resolution of unauthorized alien residents, concerns arise over the

capacity of the Department of Homeland Security to identify and remove temporary aliens who

fail to depart when their visas expire. The phenomenon of foreign nationals who enter legally on

a temporary basis and continue to stay after their visas expire is a fundamental problem of

immigration control.4 This issue is not new; indeed, Congress has been grappling with options to

address it over the past two decades.

In the early 1990s, policy makers became especially concerned about what was perceived to be a

growing number of nonimmigrant overstays. At that time, nearly 2.7 million aliens had

established legal status through the provisions of the Immigration Reform and Control Act

(IRCA) of 1986 (P.L. 99-603)—a law which also significantly strengthened border and interior

immigration enforcement provisions. Nonetheless, demographers at the former Immigration and

Naturalization Service (INS) estimated that 3.5 million unauthorized aliens were residing in the

United States in 1990. By 1996, the estimated number of unauthorized alien residents was 5.8

million, with about 2.1 million (41%) estimated to have overstayed their nonimmigrant visas. The

remaining 59% were assumed to have entered the United States illegally.5

Authorities to except or to waive visa requirements are specified in law, such as the broad parole authority of the

Attorney General under §212(d)(5) of the Immigration and Nationality Act (INA) and the specific authority of the Visa

Waiver Program in §217 of the INA.

CRS Report R41093, Visa Security Policy: Roles of the Departments of State and Homeland Security, by (name redac

ted).

The U.S. Department of Justice Executive Office for Immigration Review (EOIR) has a significant policy role

through its adjudicatory decisions on specific immigration cases. Other departments, notably the Department of Labor

(DOL), and the Department of Agriculture (USDA), play roles in the approval process depending on the category or

type of visa sought, and the Department of Health and Human Services (DHHS) sets policy on the health-related

grounds for inadmissibility discussed below.

A nonimmigrant overstay is defined as when a foreign national who is legally admitted to the United States for a

specific authorized period remains in the United States after that period expires, unless an extension or a change of

status has been approved.

U.S. Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant Population Residing in the

United States, by Country of Origin and State of Residence: October 1992, unpublished paper by Robert Warren, 1994;

and U.S. Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant Population Residing in the

United States: 1990 to 2000, by Robert Warren, 2003.

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Recent estimates indicate that the unauthorized resident alien population (commonly referred to

as illegal aliens) rose from 3.2 million in 1986 to 12.4 million in 2007, before leveling off at 11.7

million in 2012.6

Elements of Nonimmigrant Visa Control

Statutorily, the Immigration and Nationality Act (INA) provides the elements to control the entry

and exit of foreign nationals. Provisions of law requiring electronic immigration databases and

the collection of biometrics were enacted before the close of the 20th century. The INA makes

clear that nonimmigrants who fail to leave under the terms of their visa become ineligible for

readmission.7

Visa Issuance

There are two broad classes of aliens that are issued visas: immigrants and nonimmigrants. The

documentary requirements for visas are stated in Section 222 of the INA. Nonimmigrants are

admitted for a designated period of time and a specific purpose, and they include a wide range of

visitors, including tourists, foreign students, diplomats, and temporary workers.8 In FY2012, the

Bureau of Consular Affairs issued 8.9 million nonimmigrant visas. Combined, visitor visas issued

for tourism and business comprised the largest group of nonimmigrants in FY2012, with about 7

million or 78%. Other notable categories were students and exchange visitors (10%) and

employment-based nonimmigrants (6%).9

For well over a decade, the Bureau of Consular Affairs has been issuing machine-readable visas.

Consular officers use the Consular Consolidated Database (CCD) to store data on visa applicants.

Since February 2001, the CCD stores photographs of all visa applicants in electronic form, and

more recently the CCD has begun storing ten-finger scans. In addition to indicating the outcome

of any prior visa application of the alien in the CCD, the system links with other databases to flag

problems that may affect the issuance of the visa. The CCD is the nexus for screening aliens for

admissibility, notably screening on terrorist security and criminal grounds, and links with DHS’s

automated entry and exit data system, at the time the visa is issued.10

Many foreign visitors enter the United States without visas through the Visa Waiver Program

(VWP), a provision of the INA that allows the visa requirements to be waived for aliens coming

from countries that meet certain standards (e.g., Australia, France, Germany, Italy, Japan, New

CRS Report RL33874, Unauthorized Aliens Residing in the United States: Estimates Since 1986, by (name redac

ted); and Jeffrey Passel, D'Vera Cohn, and Ana Gonzalez-Barrera,

Population Decline of Unauthorized Immigrants

Stalls, May Have Reversed, Pew Research Center, Washington, DC, September 23, 2013.

CRS Report R41104, Immigration Visa Issuances and Grounds for Exclusion: Policy and Trends, by (name redac

ted)

CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions, by (name redacted).

Bureau of Consular Affairs, Report of the Visa Office 2012, U.S. Department of State, Table XVI(A), 2013,

http://travel.state.gov/content/visas/english/law-and-policy/statistics/annual-reports/report-of-the-visa-office2012.html..

CRS Report R41104, Immigration Visa Issuances and Grounds for Exclusion: Policy and Trends, by (name redac

ted)

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Zealand, and Switzerland).11 In addition to the Visa Waiver Program, there are a number of

exceptions to documentary requirements for a visa that have been established by law, treaty, or

regulation. The INA also authorizes the Attorney General (delegated to the DHS Secretary) and

the Secretary of State acting jointly to waive the documentary requirements of INA Section

212(a)(7)(B)(i), including the passport requirement, on the basis of unforeseen emergency in

individual cases.12 In 2003, the Administration scaled back the circumstances in which the visa

and passport requirements are waived.13

Border Inspections

The INA requires the inspection of all aliens who seek entry into the United States; possession of

a visa or another form of travel document does not guarantee admission into the United States. As

a result, all persons seeking admission to the United States must demonstrate to a CBP inspector

that they are a foreign national with a valid visa and/or passport or that they are a U.S. citizen. In

2013, about 362 million travelers (citizens and non-citizens) entered the United States. There are

329 official ports of entry in the United States, including 15 preclearance offices in Canada,

Ireland, and the Caribbean. Because many foreign nationals are permitted to enter the United

States without visas, notably as discussed above through the VWP, border inspections are

extremely important for those having their initial screening at the port of entry.

The Office of Biometric Identity Management—which has absorbed the former U.S. Visitor and

Immigrant Status Indicator Technology (US-VISIT) system—requires certain foreign nationals to

provide fingerprints, photographs, or other biometric identifiers upon arrival in the United States.

The automated biometric entry-exit system grew from a photograph and two-finger biometric

system for immigration identification14 to the major identity management and screening system

for DHS. Entry-exit data are stored in two DHS databases: the Arrival and Departure Information

System (ADIS) and the Automated Biometric Identification System (IDENT).15

Emigration and Exit Data

DHS does not have reliable data on persons who depart the country. Not only does DHS lack data

on U.S. citizens and LPRs who move abroad, DHS does not have reliable data on nonimmigrants

CRS Report RL32221, Visa Waiver Program, by (name redacted).

INA §212(d)(4)(A). The Homeland Security Act (P.L. 107-296) transferred most immigration-related functions from

DOJ to DHS. Whether this waiver authority remains, in whole or in part, with DOJ and the Attorney General or with

the Secretary of DHS is ambiguous.

For additional information about these exceptions, see 8 C.F.R. §212.1; 22 C.F.R. §41.1; and 22 C.F.R. §41.2.

DHS regulations exempted about 20 categories of individuals from providing biometric identifiers upon entry to or

exit from the United State; however, the CBP inspector retains discretion to collect an alien’s biometric information.

CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program, by (name redacted)

and (name redacted).

ADIS is a biographic database because its records are populated by reading identity documents (name, date of birth,

nationality, gender, passport number and country, U.S. visa number, and related information). IDENT is a fully

biometric database that makes use of fingerprint scanners and digital cameras to collect physical data directly from

database subjects, as well as biographic data (including name, aliases, date of birth, phone numbers, addresses,

nationality, personal descriptive data), biometric identifiers (including fingerprints and photographs), and information

about subjects' previous immigration enforcement histories (including previous immigration apprehensions and

arrests). For more background, see CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry.

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Nonimmigrant Overstays: Brief Synthesis of the Issue

who exit the United States, despite statutory requirements to do so.16 The I-94 Arrival/Departure

form was routinely collected from foreign nationals exiting at air and sea ports until CBP

discontinued issuing the paper forms in 2013.17 CBP continues to rely on I-94 Arrival/Departure

forms at land ports of entry. Several years ago, the U.S. Government Accountability Office

(GAO) testified that there were several weaknesses collecting the I-94 Departure Record at land

ports of entry. Most notably, GAO concluded that the collection of departure forms is vulnerable

to manipulation—“in other words, visitors could make it appear that they had left when they had

not. To illustrate, on bridges where toll collectors accept I-94 departure forms at the Southwestern

border, a person departing the United States by land could hand in someone else’s I-94 form.”18

The exit component of the automated biometric entry-exit system has long been plagued with a

variety of budgetary and structural problems, particularly at land ports of exit.19 In December

2006, DHS officials indicated that they were considering abandonment of plans to implement the

exit portion.20 In 2008, GAO also found weaknesses in the methodology DHS was proposing to

use to verify departures of foreign nationals from the United States. GAO concluded that the plan

to certify air exit system requirement would not address all potential risks of an expanded Visa

Waiver Program. In that report, DHS stated that it would match foreign nationals’ departure

records against prior records “to determine that the person is a foreign national, and that the

person did depart the country through a U.S. airport.”21 A later GAO report on the automated

biometric entry-exit system concluded that “an exit capability has yet to be fully deployed.”22

Since 2004, DHS has tested six exit data pilot programs/demonstration projects. Four of the

programs were discontinued for various reasons, such as those noted in the GAO reports

discussed above. Two programs involving biographic information sharing with air carriers and

with the government of Canada have been described by DHS as successful, and are ongoing.23

Most notably, §110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, P.L. 104208, Div. C).

In place of paper I-94 forms for exiting air and sea travelers, CBP relies on carrier exit manifests (passenger lists) to

confirm passenger departures. 78 Federal Register 18457.

U.S. General Accounting Office, Homeland Security: Overstay Tracking Is a Key Component of a Layered Defense,

GAO-04-170T, October 16, 2003, http://www.gao.gov/htext/d04170t.html.

U.S. Government Accountability Office, US-VISIT Program Faces Strategic, Operational, and Technological

Challenges at Land Ports of Entry, GAO-07-248, December 2006, http://www.gao.gov/new.items/d07248.pdf.

Then-DHS Assistant Secretary for Policy Stewart A. Baker said a land-border exit system would cost “tens of

billions of dollars.” “It is a pretty daunting set of costs, both for the U.S. government and the economy,” Baker

explained, “ ... when you have to sit down and compare all the good ideas people have developed against each other,

with a limited budget, you have to make choices that are much harder.” Rachel L. Swarns and Eric Lipton, “U.S. Is

Dropping Effort to Track if Visitors Leave,” The New York Times, December 15, 2006. Baker quote confirmed by

Jarrod Agen, a spokesman for the Department of Homeland Security, December 15, 2006.

U.S. Government Accountability Office, Limitations with Department of Homeland Security’s Plan to Verify

Departure of Foreign Nationals, GAO-08-458T, February 28, 2008, p. 9, http://www.gao.gov/new.items/d08458t.pdf.

U.S. Government Accountability Office, Key US-VISIT Components at Varying Stages of Completion, but

Integrated and Reliable Schedule Needed, GAO-10-13, November 19, 2009, http://www.gao.gov/new.items/d1013.pdf.

For further details, see CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry.

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Past Legislative Action on Nonimmigrant Overstays

Nonimmigrant overstays have been an issue in the debate over immigration control for many

years. In 1981, the Select Commission on Immigration and Refugee Policy (SCIRP) cited

nonimmigrant visa abuse and document control as concerns and included the establishment of a

“fully automated system” to track nonimmigrant arrivals and departures from the United States

among its recommendations to the President and the Congress.24 This unanimous

recommendation for an automated entry/exit system to monitor nonimmigrant overstays was part

of a comprehensive set of proposals that SCIRP offered as part of its statutory mandate to

evaluate the existing laws, policies and procedures governing the admission of immigrants and

refugees to the United States.25 In 1996, Congress put this recommendation into law; nonetheless,

the issue of nonimmigrant overstays has remained a congressional concern.

Illegal Immigration Reform and Immigrant Responsibility Act

Congress strengthened the anti-terrorism provisions in the INA and passed provisions that many

maintained would ramp up enforcement activities in the Illegal Immigration Reform and

Immigrant Responsibility Act (IIRIRA) of 1996 (P.L. 104-208, Division C). In IIRIRA, there

were several provisions aimed at nonimmigrant overstays. Foremost, IIRIRA clarified that the

visa of a nonimmigrant is void as soon as the nonimmigrant alien overstays the period of

authorized stay. IIRIRA furthermore created new grounds of exclusion for aliens who are

unlawfully present in the United States. Those who are unlawfully present for more than 180 days

but less than one year and who voluntarily depart the country are ineligible for admission or

reentry to the United States for three years. An alien unlawfully present for one year or more who

leaves or is removed from the United States is inadmissible for 10 years. These provisions are

generally referred to as the 3- and 10-year bars.

Finally, Section 110 of IIRIRA required the Attorney General to develop an automated entry/exit

system that among other things (1) collects a record of departure for every alien departing the

United States, and matches the record against the record of the alien’s arrival in the United States;

and (2) allows the identification, through online searches, of nonimmigrants who remain beyond

their period of authorized stay. As amended by several subsequent laws, Section 110 of IIRIRA

became the statutory basis of what is now the Office of Biometric Identity Management system,

which uses biometric identification (i.e., finger scans and digital photographs) to check identity.

Enhanced Border Security and Visa Entry Reform Act of 2002

The Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173) expressly

targeted the improvement of visa issuance and alien tracking procedures. Among its provisions, it

required the development of an interoperable electronic data system to be used to share

information relevant to alien admissibility and removability and the implementation of an

Select Commission on Immigration and Refugee Policy, U.S. Immigration Policy and the National Interest, Staff

Report, Washington, DC, April 30, 1981, p. xxxiii.

P.L. 95-412 established the SCIRP, which was also referred to as the Hesburgh Commission because it was chaired

by the Reverend Father Theodore M. Hesburgh, who was President of Notre Dame at the time.

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integrated entry-exit data system.26 It also required that all visas have biometric identifiers.27 The

act placed new requirements on the VWP, specifically mandating that the government of each

VWP country certify that it has established a program to issue tamper-resistant, machine-readable

passports with a biometric identifier. The act also required all VWP countries to certify that they

report in a timely manner the theft of blank passports.

Legislation Implementing the 9/11 Commission Recommendations

The Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 (P.L. 108-458) included

visa policy and immigration-related provisions aimed at curbing nonimmigrant overstays as well

as the specific recommendations offered by the 9/11 Commission. The IRTPA required

accelerated deployment of the biometric entry and exit system to process or contain certain data

on aliens and their physical characteristics. The act also expanded the pre-inspection program that

places U.S. immigration inspectors at foreign airports, increasing the number of foreign airports

where travelers would be pre-inspected before departure to the United States. Moreover, it

required all individuals entering the United States (including U.S. citizens and visitors from

Canada and other Western Hemisphere countries) to bear a passport or other documents sufficient

to denote citizenship and identity. The IRTPA required the establishment of new standards aimed

at ensuring the integrity for federal use of birth certificates, state-issued driver’s licenses and

identification cards, and social security cards.28

The Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53) created

a waiver allowing the Secretary of Homeland Security (Secretary) to admit countries with visa

refusal rates under 10% to the VWP. This waiver authority became available in October 2008,

when the Secretary certified that (1) an air exit system was in place that verifies the departure of

not less than 97% of foreign nationals that exit through U.S. airports, and (2) the electronic

system for travel authorization (ESTA) was operational. The ESTA is a system through which

each foreign national electronically provides, in advance of travel, the biographical information

necessary to check the relevant databases and “watch lists” to see whether the foreign national

poses a law enforcement or security risk.29 The CBP officer makes a determination on whether the

nonimmigrant may enter the United States and the permitted duration of stay.

§414 of the USA PATRIOT Act (P.L. 107-56) also encouraged the full implementation of the integrated, automated

entry and exit data system “with all deliberate speed and as expeditiously as practicable.”

The Border Security and Visa Reform Act also required the establishment of electronic means to monitor and verify

the status of the students and exchange visitors. CRS Report RL32188, Monitoring Foreign Students in the United

States: The Student and Exchange Visitor Information System (SEVIS), by (name redacted).

CRS Report RL32616, 9/11 Commission: Legislative Action Concerning U.S. Immigration Law and Policy in the

108th Congress, by (name redacted) and (name redacted).

Section 711(h)(3) of P.L. 110-53 provides: “A determination by the Secretary of Homeland Security that an alien is

eligible to travel to the United States under the program is not a determination that the alien is admissible to the United

States.” That subsection further provides: “A determination by the Secretary of Homeland Security that an alien who

applied for authorization to travel to the United States through the System is not eligible to travel under the program is

not a determination of eligibility for a visa to travel to the United States and shall not preclude the alien from applying

for a visa.”

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Estimating Overstays

Over the years, it became apparent that the data on nonimmigrant overstays were unreliable

because these data were based upon the I-94 Arrival/Departure form. The I-94 forms are no

longer collected from foreign nationals at air and sea ports, and the integrity of the I-94 collection

process at land ports is problematic, as discussed above. Moreover, two major classes of

nonimmigrants are exempt from filling out the I-94 when visiting the United States for business

or pleasure: Canadian citizens admitted for up to six months and Mexican citizens entering with a

border crossing card (laser visa) along the southwestern border who intend to limit their stay to

less than 30 days and intend not to travel beyond a set perimeter from the border.

Early Demographic Estimates

In 1996, the estimated number of unauthorized alien residents was 5.8 million, with about 2.1

million (41%) estimated to have overstayed their nonimmigrant visas.30 Robert Warren, then a

demographer with the former INS, attempted to calculate nonimmigrant overstays based on

estimations of the percentage overstays for each country. Warren’s efforts yielded an estimate that

2.3 million, or 33%, of the 7.0 million unauthorized immigrants residing in the United States in

January 2000 were nonimmigrant overstays.31 In 2004, the U.S. Government Accountability

Office (GAO) attempted to estimate nonimmigrant overstays using samples based upon three

different methodologies. GAO concluded, “three alternative data sources on illegal immigrants

indicate varying—but uniformly substantial—percentages of overstays: 31%, 27%, and 57%.”32

In 2003, Warren reached the following conclusion: “In general, the net nonimmigrant overstay

figures are more likely to be overestimates than underestimates because the collection of

departure forms for long-term overstays who depart probably is less complete than for those who

depart within the first year.”33 The 2004 GAO study, however, drew two different conclusions:

“The extent of overstaying is significant and may be understated by DHS’s most recent

estimate.”34

In 2006, the Pew Hispanic Center applied the Robert Warren methodology (with some

modifications) to their estimates of the unauthorized resident alien population in 2006. Their

estimates suggest that out of an unauthorized resident alien population of 11.5 million to 12

million, about 4 million to 5.5 million, or between 33% and 50%, are nonimmigrant overstays.35

U.S. Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant Population Residing in the

United States, by Country of Origin and State of Residence: October 1992, unpublished paper by Robert Warren, 1994;

and U.S. Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant Population Residing in the

United States: 1990 to 2000, by Robert Warren, 2003.

U.S. Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant Population Residing in the

United States: 1990 to 2000, by Robert Warren, 2003 (hereinafter, Unauthorized Immigrant Population Residing in the

United States: 1990 to 2000).

U.S. Government Accountability Office, Overstay Tracking: A Key Component of Homeland Security and a Layered

Defense, GAO-04-82, May 2004 (hereinafter, Overstay Tracking, GAO-04-82).

Unauthorized Immigrant Population Residing in the United States: 1990 to 2000.

Overstay Tracking, GAO-04-82.

Pew Hispanic Center, Fact Sheet, Modes of Entry for the Unauthorized Migrant Population, May 22, 2006.

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Administrative Estimates

For immigration enforcement purposes, ICE’s Overstay Analysis Unit identifies foreign nationals

who have potentially overstayed their visas by matching ADIS arrival and departure records.

DHS had a backlog of 1.6 million unmatched arrival records that had not been reviewed through

automated or manual processes in January 2011. GAO reviewed the enhanced biographic exit

program’s backlog of 1.6 million potential overstay records and found that about half of these

cases (863,000) were found to have departed the United States or to have adjusted status.36 As of

June 2013, GAO reported that DHS’s unmatched arrival records totaled more than 1 million.37

Recent Demographic Estimates

Most recently, Robert Warren and John Robert Warren published two new analyses of the

components of unauthorized migration (using a few refinements to Robert Warren’s earlier

methodology) and estimated a sharp drop in the number of unauthorized aliens arriving in the

United States annually since 2001. In terms of visa overstays, the latest findings of Warren and

Warren are stunning in that they concluded that “total nonimmigrant overstays to the United

States dropped from 705,000 to 190,000, or about 73%, over the decade” (ranging from 2000 to

2009). Warren and Warren also found that entries without inspections (EWIs) declined in every

year after 2005, not just during the economic recession in 2008 and 2009 as other research had

suggested.38

Out of the remaining records, along with 82,000 additional cases identified by ICE’s Counterterrorism and Criminal

Exploitation Unit, DHS prioritized 1,901 as possible national security or public safety risks. Further investigation of

these high priority cases found that 1,013 individuals had departed the United States or adjusted to a lawful migration

status, 9 individuals were arrested, and 481 individuals were the subject of ongoing ICE enforcement efforts as of

March 2013, among other outcomes. U.S. Government Accountability Office, Overstay Enforcement: Additional

Actions Needed to Assess DHS's Data and Improve Planning for a Biometric Air Exit Program, 13-683, July 2013.

. U.S. Government Accountability Office, Overstay Enforcement: Additional Actions Needed to Assess DHS's Data

and Improve Planning for a Biometric Air Exit Program, 13-683, July 2013.

Robert Warren and John Robert Warren, “Unauthorized Immigration to the United States: Annual Estimates and

Components of Change, by State, 1990 to 2010,” International Migration Review, vol. 47, no. 2 (June 2013), pp. 296329; and Robert Warren and John Robert Warren, “A Review of the Declining Numbers of Visa Overstays in the U.S.

from 2000 to 2009,” Center for Migration Studies, 2013.

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Figure 1. Estimated Annual Trends in Visa Overstays in the United States

Immigration Status by Selected Year of Arrival, 2000 to 2009

Source: Robert Warren and John Robert Warren, “A Review of the Declining Numbers of Visa Overstays in

the U.S. from 2000 to 2009,” Center for Migration Studies, 2013, Figure 1.

It is essential, however, to emphasize that their work is only estimations based upon broader

population trends. As the authors acknowledge: “(N)o direct information is available about either

EWIs or overstays.” If foreign nationals who are in the country illegally are effectively

avoiding census enumeration, then it would impact these analyses. These estimates are not a

match for official entry-exit data.

Concluding Comments

Estimates of nonimmigrant overstays residing in the United States are plagued by the broader

difficulties in measuring all three components of unauthorized migration—aliens entering without

inspection between ports of entry and aliens entering with fraudulent documents, as well as aliens

overstaying or otherwise violating the terms of legal entry. The extent that some nonimmigrant

overstays become “quasi-legal” aliens (e.g., those who have legal permanent resident petitions

pending or have sought relief from removal from an immigration judge) further complicate the

estimates.39 Reportedly, the failure of DHS to consistently update the alien’s record—for example

if the authorized period of admission is extended, if deferred departure is granted, or if the

immigration status changes—is another major factor that prevents DHS from calculating reliable

estimates of overstays.40

A way forward on the issue of nonimmigrant overstays seems out of reach, absent a reliable

method to measure emigration or an effective exit-monitoring system.

Unauthorized Immigrant Population Residing in the United States: 1990 to 2000.

Overstay Tracking, GAO-04-82.

Congressional Research Service

Nonimmigrant Overstays: Brief Synthesis of the Issue

Author Contact Information

(name redacted)

Specialist in Immigration Policy

/redacted/@crs.loc.gov, 7-....

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