By Edward Alden - 05/20/13 10:19 PM EDT
No part of the immigration reform debate is more misunderstood than the issue of those who have overstayed visas.
Critics of the Senate Gang of Eight’s proposal say little has been done since the 9/11 terrorist attacks to plug a loophole that has allowed millions to remain in the United States illegally. Sen. John Cornyn (R-Texas) said recently that despite a 1996 law that requires an “entry-exit” system to catch overstayers, “the exit system is nonfunctional.”
Temporary visas are issued for many purposes, but all require that a foreign tourist, student or other visa holder return home when the duration of his or her lawful visit expires. Historically, however, the United States has never known whether visa holders actually left, and many did not.
Demographer Robert Warren estimated in 1997 that visa overstays were then 41 percent of the total overall unauthorized population. But Warren recently updated those estimates, and they show a big decline. Since 2000, the number of new overstays each year has dropped by 78 percent in the biggest states; in 2009, only three states (Florida, California and Texas) added more than 10,000 visa overstayers.
An equal concern has been security. The 1996 law was passed in part because two of the conspirators in the 1993 World Trade Center bombing had overstayed visas. Little progress was made before the 9/11 attacks, but a great deal has been done since.
The US-VISIT entry system created in 2003 requires all overseas visitors be fingerprinted on arrival at a U.S. airport or land border. The fingerprints prove identity and prevent passport or visa fraud, and the records can also be checked against government databases of serious criminals and suspected terrorists.
Tracking exits is a greater challenge. Congress has called for a decade for a biometric system in which fingerprints taken from departing passengers would be matched with arrival records. The Senate Judiciary Committee on Monday approved an amendment requiring biometric exit at the 10 busiest U.S. airports within two years.
But most U.S. airports are not configured to do this. The only place where a fingerprint could be taken is at the actual departure gate, a logistical nightmare. The airlines want no part of the scheme, meaning that government officials will need to be spread out across airports.
The existing alternative looks better. The Department of Homeland Security currently gathers from airlines biographic data on departing passengers and matches it up with entry records. This has been more complicated than it sounds because some individuals travel on multiple passports, and others change status and remain legally in the U.S. It has taken many years to match up the databases, but now each day, the DHS generates an accurate list of those suspected of having overstayed.
The names are immediately checked against criminal and terrorist lists. In 2010, the attempted Times Square bomber Faisal Shahzad was pulled from a Dubai-bound flight at New York’s Kennedy Airport because his name appeared on the passenger list submitted by the airline before departure.
More routinely, the U.S. government revokes the visas of those who overstay, so that if they do leave the country, they will likely not be permitted to return. That creates a strong deterrent against casual overstayers.
Holes certainly remain. The government should be notifying visa holders by email when their visas are set to expire to encourage compliance. The Senate bill would require an electronic exit system in which the passports of all departing passengers are swiped to avoid errors.
The land borders still pose a logistical nightmare because of the high traffic volume. But the U.S. and Canada are solving that problem through information sharing. This June the two governments will start sharing entry and exit records for all third-country nationals, including permanent residents of Canada and the United States.
This leaves the Mexican border, where it will be harder to share data due to poor infrastructure and information systems on the Mexican side. But there, too, gradual progress is being made.
U.S. tracking of visa overstays is not perfect, but neither is it the massive hole in immigration enforcement that too many in Congress believe exists. A debate over the facts will help in crafting legislation that better secures the United States against criminals, terrorists and ordinary immigration-law violators.
Alden, a senior fellow at the Council on Foreign Relations, is the author of The Closing of the American Border: Terrorism, Immigration and Security Since 9/11.