Visa Overstays: A Footnote on What Congress Can Do

Judging from the reaction to this week’s release of the first DHS report on the number of foreign travelers overstaying their visas, one would think this was fresh and damning evidence for critics who claim that America’s borders are wide open and that the administration is woefully failing to enforce the law. Senator Jeff Sessions (R-AL) called a hearing on the issue Wednesday, to denounce the administration’s “refusal” to build a biometric system to track all departures. “If we do not track and enforce departures, then we have open borders,” he said.

Fortunately, by finally putting out real numbers, the administration has some ammunition to answer such charges. The report provides a long overdue opportunity to move past what has become a stale, hackneyed conversation over whether or not the administration is serious about immigration enforcement, and to start asking the right questions: how effective does Congress want that enforcement to be, and what is it willing to pay for it?

First, a few key facts from the report. Based on a single year’s data, from FY2015, the Department of Homeland Security found that nearly 500,000 of those who came to the United States on tourist or business visas failed to leave on time. That was just over one percent of the 45 million people who traveled on these temporary visas  last year. In other words, the compliance rate was 99 percent.

Of course 500,000 is still a lot of people, “bigger than any city in Iowa” as Senator Sessions put it, picking a state at random to be sure. From a single year’s data, it is impossible to know how many of those who overstayed do in fact plan to leave at some point, and how many are planning to remain in the United States illegally. We know from the report that another 66,000 of these left in the three months between the end of FY2015 (Oct. 1, 2015) and January 4, 2016. So many others are presumably leaving every day.

And we know from an excellent new report out this week from the Center for Migration Studies that the total population of unauthorized immigrants has fallen below 11 million for the first time since 2004. So those remaining illegally are being more than compensated for by those leaving.

But let’s agree that even several hundred thousand people overstaying their visas each year is a problem. The question is what to do about it? Senator Sessions and others suggest that the elusive “biometric exit” system is a big part of the solution. What that means, in practice, is finding a way to take fingerprints from all departing international passengers, and then matching them up with the fingerprints they provided on entry through the US-VISIT system. (Though it is certainly possible that the technology for facial recognition or iris scans will evolve to the point where fingerprints are no longer needed).

The administration's chief witness at the Wednesday hearing, John Wagner of U.S. Customs and Border Protection (CBP), was quite candid about what biometric exit would require given current technologies, even putting aside the much harder problem of the land borders. Option one is to reconfigure all U.S. international airports to funnel departing passengers into a holding area where they would be fingerprinted by a U.S. immigration officer. The capital costs would likely be in the billions, and for some time the reconfiguration would significantly limit the number of departure gates and create long delays. Option two is to hire thousands of new CBP agents to take fingerprints from departing passengers at the airline gates, at a cost that Mr. Wagner estimated at $790 million annually.

Is it worth billions of taxpayer dollars to build a biometric exit system, and perhaps improve visa compliance from 99 percent to 99.5 percent? If so, then Congress should get on with it and appropriate the funds.

Even with biometric exit, however, the question would remain about what to do about those who fail to comply and remain in the United States. The administration’s approach is to identify any overstayer who may pose a security risk, and use the limited investigative resources of Immigration and Customs Enforcement (ICE) to go after those individuals. Senator Sessions and others, however, expressed outrage that only a tiny fraction of those who overstay are being deported.

Fair enough. So what to do? Senator Sessions suggests that ICE should actively be hunting for all overstayers to oust them from the country. How would this be done? When visa travelers come to the United States, they are required to list some sort of address on their application, though it may only be a hotel. By the time ICE is made aware that the individual has overstayed, they could be anywhere in the country. Even less is known about visa waiver travelers from Europe, or those from Canada who enter visa-free. So, in the event that Jane Doe from Toronto overstays (and 99,000 Canadians overstayed last year, the largest of any single country), what exactly is ICE supposed to do? Go looking for her on the beaches in Florida?

Much as with the idle rhetoric about biometric exit, far too much of the discussion in Congress – and even more, sadly, in the presidential campaign – lacks even a shred of seriousness. If we really want to discourage overstays from becoming illegal migrants, then make it far harder for them to earn a living by, for example, requiring all employers to use the E-Verify system to ensure their employees are in the country lawfully. But of course it was congressional Republicans who killed that valuable provision when it was part of the Senate’s comprehensive immigration reform bill. And Senator Marco Rubio of Florida, who played a serious and constructive role on that bill, continues to pay the price in the GOP primary for trying to rise above the stale rhetoric.

The media reaction to the new DHS report (“Visa Overstay Shock => Over 527,000 Aliens Overstayed Visa in 2015, Including Thousands from Radical Islamic States,” said one headline) suggests that changing the conversation will not be easy. But the only way to counter what has become a deliberate misinformation campaign by immigration critics is to talk about the facts. This week’s DHS report is a good start.