Time's Up: The Visa Overstay Dilemma

​IN 2012, a Moroccan man was arrested for plotting to carry out a suicide bombing at the U.S. Capitol. After further investigation, it was revealed that Amine El Khalifi had entered the United States legally when he was 16, but his visa had expired in 1999. He had been living in the United States illegally for 12 years before he was caught.

El Khalifi is just one of numerous terrorists—including four of the 9-11 hijackers—who entered the United States legally and overstayed their visas. But terrorists aren’t the only ones living in the United States past their visa expirations: an estimated 40 percent of the 12 million illegal immigrants in the United States are living in the country on expired visas.

The U.S. Department of Homeland Security (DHS) has no way to track whether visitors have left the United States when their visas are up. Despite an entry process requiring visa documents, passports, photos, and fingerprints, there is no standardized biometric exit process in place for visitors. And the incongruity between land, air, and sea entry and exit points makes it even more difficult to track visitors, since there is not one comprehensive system that records the visa holders who have entered and exited the country.

Since 1993, eight congressional mandates have called for a comprehensive system to collect and store information from visitors upon entry and exit. In 2002—and several times since then—Congress called for all foreigners to be biometrically screened upon entry to and exit from the United States. While a biometric entry process has been established, foreign visitors do not have to take any special steps to exit the country.

There are other concerns with the visa overstay problem and the DHS’s response. In November, a U.S. House Committee on the Judiciary held a hearing to discuss the lack of an exit system for visa holders, and many committee members voiced concerns about being kept in the dark on visa overstay statistics. That information could help them craft better immigration legislation.

Visa overstay data has not been regularly submitted to Congress since 1994, according to the Federation for American Immigration Reform (FAIR). “If you really believe in immigration reform, you couldn’t do worse than throw a monkey wrench into this whole process, ’cause now we don’t trust you,” Rep. Stephen Lynch (R-Utah) said bluntly to DHS representatives during the hearing.

Agency members said they would release 2012 overstay rates at the end of the 2013, but as of press time no report has been released. There is little concrete, up-to-date information available on the number of people overstaying on visas in the United States or what the DHS plans to do about the problem, but ahead is a look at what visa programs are currently in place and what is planned for the future.

Travel Visas
There are a number of ways foreigners can legally travel to the United States. Citizens of any of the 37 countries involved in the Visa Waiver Program (VWP) can enter the United States for up to 90 days for business or travel without a visa, but must provide biographical information upon arrival. Countries eligible for participation in the VWP must have a historically negligent amount of nationals who are deemed ineligible for a visa—the refusal rate must be below 3 percent to qualify. In 2011, more than 18.3 million foreigners arrived in the United States through the VWP, and the current overstay rate of travelers in the VWP is estimated at less than 1 percent.

In 2011, more than 34.7 million people visited the United States on a visa. Most commonly, travelers visit on a consulate-issued visa. Most visitors arrive on business or tourist visas lasting one or two months, according to FAIR. Student visas are also common and are issued for one academic year.

The largest portion of foreigners enter the United States from the Mexican and Canadian borders with Border Crossing Cards, or BCCs—more than 105 million visitors entered the United States using BCCs in 2011. The cards, which are valid for 10 years, allow visitors to enter the country for very short periods of time and allow travel within short distances—for shopping or professional consultations, for example. The BCCs are machine-readable and bear the photo and fingerprint of the visitor. However, the cards are generally not machine read upon entry or exit of the United States, so data is not collected on BCC holders.

There are some programs in place that attempt to preemptively keep high-risk foreigners from entering the country before they can abuse their visas. It often falls to the overseas consular offices, which approve or deny visa applications, to look for applicants who are likely to abuse their visas. There are a number of programs in place to improve the screening, including The Pre-Adjudicated Threat Recognition Intelligence Operations Team (PATRIOT), which screens visa application information against DHS data. The program relies on interagency resources from the U.S. Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), the Department of State, and the intelligence community. This year, the overseas visa security program will enhance vetting by increasing automated data exchange between the State Department and CBP.

Despite these programs, the issuance of visas to visitors from potentially volatile nations has risen in the past five years. From 2007 to 2012, the number of visas approved for those traveling from Iran rose from 55 to 62 percent, and 54 to 72 percent for those from Nicaragua, according to State Department statistics.

Tracking Visitors
The Government Accountability Office (GAO) began tracking DHS’s management of foreign visitors in 2011. The organization has issued multiple reports on the current entry system, database management, and overstay documents. In July 2013, GAO reported that the DHS had a backlog of more than 1 million records of arrivals with no matching departure data.

Rebecca Gamble, the director of GAO’s security and justice team, says that the July report analyzed the progress DHS had made in identifying and addressing those visitors who overstayed since its initial 2011 report.

The report reiterated what members of Congress complained about at the November hearing. For almost 20 years, neither the DHS nor its predecessors have regularly reported overstay rates as required by statute. In 2011, the department said it had overstay rates but did not publicly report them because it did not have sufficient confidence in the data. And although former Secretary of Homeland Security Janet Napolitano testified in February 2013 that the DHS was to report overstay statistics by December, the department still hasn’t determined how it will calculate and report that data.

“DHS continues to face challenges in reporting reliable overstay rates. DHS has streamlined connections among databases used to identify potential overstays. However, these improvements do not address some underlying data quality issues, such as missing land departure data,” according to the report. The report also discusses the department’s federally-required attempt to create a biometric entry-exit system, which has been “a long-standing challenge for DHS.”

“Biometric exit is a statutory requirement,” Gamble tells Security Management. “Since 2004, DHS has been required to implement a biometric entry and exit system, so that statutory requirement exists. We found that it’s important for DHS to move forward on their planning efforts as they relate to a biometric air exit option to really assess what the costs and benefits of various options for collecting biometric exit data would be, and to be able to present that information to Congress and use it for thinking through decisions on a biometric system going forward.”

Although the DHS has a high-level plan for biometric tracking at air and sea ports, the GAO found that the department has not defined the time frames and steps needed to develop such a complex framework, according to the report. “Without robust planning that includes time frames and milestones, DHS does not have reasonable assurance that it will meet its time frame for developing and implementing an evaluation framework,” the report states. The department also has not sufficiently addressed developing an entry and exit system for land ports of entry, Gamble says.

Biometrics 
During the November House Judiciary Committee hearing, a number of experts, DHS officials, and committee members testified on the reality of a biometric entry and exit system. Identity and border security specialist Janice Kephart, who runs a security consulting business, stressed the importance of a biometric tracking system—collecting travelers’ photos or fingerprints—over a biographical system, such as names and passport numbers.

“When we were investigating terrorist travel patterns, we learned that there were two hijackers in August 2001 who were watch-listed,” Kephart said. “They had come into the country on a visa but we did not know where they were, and the FBI could not figure out if they had ever left. They came to the assumption that it wasn’t worth their time to track them.”

The 9-11 hijackers had more than 300 aliases, passports, and visas, which demonstrates the need for fraudproof verifiers such as fingerprinting and facial recognition, she said.

Kephart also disagreed with a 2008 DHS report that said implementing a biometric system would cost $3 billion. Thanks to today’s technology, which would not require any significant airport infrastructure changes, Kephart claims that a biometric system at air and sea ports would cost between $400 and $600 million and could be implemented within two years.

James Albers, senior vice president of MorphoTrust USA, agreed. “This can be implemented in a cost-effective manner,” he testified. “The 2008 report is out of date. Multimodal biometric solutions have been implemented in federal and state governments around the world.”

Albers also called for the DHS to use more advanced biometric collection. The State Department has the largest facial recognition database in the world, so it would make sense to take advantage of that information when tracking visitors, he said. “Collecting multiple biometrics will provide more options upon exit,” Albers said. “Fingerprints would continue to be collected, but face and iris scans could be compared to FBI databases.”

Julie Myers Wood, a former assistant secretary and director at ICE, stressed the importance of giving departments the resources they need to accurately track down visa-overstay violators, and that ICE and other departments should commit to enforcing visa terms. “ICE agents are chasing leads for individuals who have left the country,” she said. “The overall value of a robust biometric system is diminished if enforcement agencies don’t enforce violations… Overstays are no one’s priority, but they become everyone’s problem. Even with a biometric exit in place, the number of overstays will continue to grow due to the lack of enforcement,” noted Wood.

Committee members had plenty of questions for David Heyman, assistant secretary for policy at DHS, who said the department has been doing what it can to develop a biometric solution. He also defended the current biographic entry and exit system, which he said has improved over time and does its job. “The department has since worked to bring the existing biographical system to a level of fidelity equal to a biometric system while continuing to pursue a more cost-effective biometric solution,” Heyman testified.

Heyman also stood by the $3 billion system implementation figure. “We found that the limitations of existing technology plus the lack of infrastructure for departing passengers would require more than $3 billion in investments as well as significant disruptions to passengers and airlines for a biometric exit program in the air environment alone.”

In 2014, DHS plans to deploy several enhancements to the visa system, including a unified overstay case management process, an international student data exchange, and an overstay hot list that will work to consolidate immigration data from multiple systems, Heyman said.

However, lawmakers and experts remain skeptical of seeing any real progress from the DHS on a biometric entry and exit system. “Seventeen years after Congress required an entry-exit system, no exit system is in place,” said Judiciary Committee Chairman Bob Goodlatte. “This administration and past administrations had plenty of time to get this done, yet they continue to make excuses as to why it cannot be completed.”

Lilly Chapa is an assistant editor at Security Management.