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Illustration by Michael Austin

Who's Staying Over?

​Asher Potts was a senior attending a Pennsylvania high school. He excelled academically and socially; he qualified for the National Honor Society, volunteered in the community, and was accepted to a university where he planned to study aeronautics. But in February, he was arrested for identity theft and tampering with records when it was revealed that Asher Potts was, in fact, Artur Samarin, a 23-year-old Ukrainian national who had been living in the country illegally for three years after overstaying his visa.

Samarin arrived in the United States on a visitor visa in 2012, and then stayed after a subsequent tourist visa he acquired expired in 2013. He changed his name, acquired false identification papers, and enrolled in high school. Samarin said he did this to receive an education and have a better life, although he had already completed high school and two years of university in Ukraine.

Samarin was just one of 527,127 individuals who overstayed their visa in fiscal year 2015, according to the U.S. Department of Homeland Security (DHS). In a report released in January, DHS analyzed entry and exit data of some 45 million foreign nationals who arrived in the United States for business or pleasure through an air or sea port of entry. Approximately 1.17 percent of this group of visitors remained in the United States past their visa’s expiration date, according to the report.

Congress mandated the collection of entry and exit data in 1996, but DHS was unable to share reliable data due to the incomplete collection of departure data. In fact, neither DHS nor its predecessor has regularly reported annual overstay rates to Congress since 1994, according to a Government Accountability Office (GAO) report. 

GAO has been tracking DHS’s efforts to produce an overstay report for a number of years. In 2011, DHS officials told GAO that the department did not have sufficient confidence in the quality of its overstay data. And in 2013, the Secretary of Homeland Security testified that DHS would release an overstay report that year, but it wasn’t released until January 2016 under threat of budget cuts.

“The Consolidated Appropriations Act, 2016, directed DHS to provide to Congress within 30 days of enactment a report on nonimmigrant overstay data by country, and a comprehensive plan for implementation of the biometric entry and exit data system, both of which are required by law,” states the GAO report Actions Needed by DHS to Address Long-Standing Challenges in Planning for a Biometric Exit System. “In addition, the Act withheld $13 million from the Office of the Secretary and Executive Management until DHS provides the overstay report and comprehensive plan.”

Rebecca Gambler, the director of Homeland Security and Justice Issues at GAO, tells Security Management that the overstay metrics were released shortly after the GAO report she authored made a renewed call for the DHS report. Gambler says GAO is going over the overstay data but is not yet ready to comment on whether it meets congressional requirements. 

According to statute, the DHS overstay report should detail the data, for each fiscal year, regarding the total number of nonimmigrant foreign nationals who overstayed their authorized periods of admission in the United States. The current overstay report only tracked visitors who entered the country through air and sea ports, not land, Gambler notes.

Canada and Mexico top the list of reported overstayers—but this could be because those who entered the United States via air or sea but left through the northern or southern borders were not counted in the DHS report. High numbers of overstayers also come from Brazil, Germany, Italy, and the United Kingdom.

Countries that do not have visa-waiver agreements with the United States had above-average overstay rates, and as a group, countries with visa-waiver agreements, mostly in Europe, had a below-average overstay rate.

The DHS report was limited in scope and includes no reliable trend data that could shed light on whether overstays are growing or declining, note Jeffrey Passel and D’Vera Cohn in a Pew Research Center analysis of the overstay report. The nonpartisan think tank noted that the data—and lack thereof—should not only alert officials to potential bad actors, but create a fuller understanding of immigration in the United States.

“Data on those who overstay also could add detail to the portrait of the nation’s 11.3 million unauthorized immigrants, because it is not known how many arrived legally versus illegally,” the analysis explains.

Another concern is the seeming lack of overstay enforcement, which falls under the purview of U.S. Immigration and Customs Enforcement (ICE). ICE analysts determine which overstayers to track down based on national security and public safety criteria, but most overstayers on record “do not result in enforcement action because they do not meet ICE’s overstay enforcement priorities,” the GAO report notes.

Gambler says ICE dedicates few resources to overstay enforcement efforts and has been taking action on a “limited number” of estimated overstayers. “Now there can be some challenges to ICE identifying and finding overstays in the United States, but what we also heard from them was that the resources they devote to overstay enforcement efforts compete with other priorities within the department,” she explains.

DHS’s recordkeeping methodologies are fraught with potential drawbacks, the Pew analysis says. Foremost, they do not include land arrivals from Canada or Mexico, which account for most temporary visitors. Also not counted are visitors who enter with student or temporary worker visas. 

Right now, DHS collects the majority of its data on foreigners who leave the United States from airliners and passenger vessels, which are required to collect it. One of the reasons the report took so long to come together is due to stalled progress of a biometric exit system in U.S. airports, Gambler says. Besides being required by law, a biometric system—the collection of facial recognition or fingerprint patterns for the authentication of an individual’s identity—would more accurately and efficiently confirm the departure of an individual. 

“GAO’s work has really identified some longstanding challenges in DHS’s efforts to implement a biometric exit system, particularly focusing on the air environment,” Gambler explains. “The challenges include things like figuring out how to collect biometric data at the point of departure without affecting the flow of travelers through airport terminals.” 

Specifically, DHS has faced challenges in examining the mechanics of incorporating biometric data collection at departure gates because air carriers and authorities have not allowed DHS to do so, the report states. DHS has also struggled to determine what personnel should be responsible for conducting the biometric scans. These challenges, which were identified in 2010, continue to affect DHS’s ability to implement a biometric exit system, the report notes. 

Cost and technology are other longstanding obstacles to implementing a biometric exit system, despite the fact that a biometric entry capability has been fully operational at all air, sea, and land ports of entry since 2006, according to the GAO report. However, this year’s omnibus spending bill provides additional funding of up to $1 billion towards the implementation of a biometric exit system. And despite aiming to do so since 2013, DHS has yet to present Congress with information on the benefits of biometric technology over the current biographic exit system.

“DHS is still working to develop that information and they can’t give us an estimate for when it might be completed,” Gambler explains. “That type of information is really important for both DHS and Congress to determine how much it might cost to implement options for a biometric air exit and for them to understand the cost and benefits of the options.”

GAO and Congress aren’t the only entities pushing DHS to explore new options for a biometric exit system. The International Biometrics and Identity Association (IBIA) issued a white paper detailing DHS’s difficulties in coming up with a solution, as well as the potential for the biometrics industry to advance necessary technology. 

DHS’s technical requirements for a biometric exit solution remained undefined, the white paper notes. “Thus, while IBIA believes that the early estimates are extremely high, the true cost of a complete biometric exit system cannot be accurately estimated until there is an updated concept of operations.” 

“If biometric exit is to become a concrete reality, DHS must engage in a more substantive and open dialogue with the biometrics industry…if DHS cannot articulate clear requirements early enough, the quality of the support that industry can provide will be reduced,” according to the white paper.

DHS has implemented a number of its own initiatives over the past year to further evaluate biometric technologies. Last summer, U.S. Customs and Border Protection (CBP) began testing a hand-held mobile device that scans the fingerprints and passports of randomly-selected foreign travelers at 10 airports across the country. Gambler notes that DHS has focused on testing biometrics collection in the air environment due to “real challenges in DHS’s ability to collect exit data at land ports of entry, mainly because there are limitations in terms of their infrastructure and space constraints with setting up booths to collect exit information in the land environment.”

Along the U.S.-Canada border, DHS is working to expand its Beyond the Border initiative, which collects information on nonimmigrants exiting the United States at Canada’s border ports. Gambler says this type of data exchange might eventually be an option to record exit information along the U.S.-Mexico border. 

Gambler says that GAO is following up with DHS about the reliability of the data used to generate the overstay estimates, as well as any limitations encountered in creating the report. GAO also plans on updating its work on the new options for biometric exit technologies currently being tested. ​