Jessica Vaughan is the director of policy studies and Matt Sussis is the assistant director of communications at the Center for Immigration Studies.
The newest edition of the annual report from the Department of Homeland Security on overstays shows a decline in the total number of air and sea travelers believed to have overstayed their authorized visit.1 Nevertheless, certain countries and categories remain a problem, both in the number of overstays they generate and the poor rates of visa compliance. In addition to boosting interior enforcement against illegal overstays after the fact, consular managers at the State Department must be directed to take more vigorous steps to prevent the issuance of visas for categories of applicants who are likely to overstay. In addition, the Trump administration should consider expanding the scope of the vetting travel ban to cover more categories for countries already on the list, and perhaps additional countries. Finally, the administration should consider imposing consequences for employers, schools, and other organizations sponsoring visitors who do not comply with visas.
- DHS tallied 667,000 overstays in 2018, down about 5 percent from 2017.
- While the number of visa-waiver overstays came down by 29 percent, the number of regular visa short-term visitor overstays was largely unchanged, and the number of overstays in the category including guestworkers went up by 25 percent.
- The number of overstays from India in the guestworker category more than doubled. Overstays in this category from Guatemala, China, and Jamaica also jumped significantly.
- The most notable improvement in visa waiver overstays was the decrease in the number from the United Kingdom, which fell by 45 percent.
- Overstays from air and sea arrivals from Canada and Mexico declined by 9 percent, mostly due to fewer overstays among Canadians.
- A large share of regular short-term visitor overstays come from just four countries: Brazil, Venezuela, Nigeria, and Colombia. Citizens of these countries make up more than 40 percent of all overstays in this category.
- A number of countries that are subject to the vetting travel ban have some of the worst visa compliance rates in several different categories.
- Additional steps can be taken by the Trump administration to reduce overstays, including adjusting visa issuance policies and imposing consequences on entities that sponsor non-compliant visitors.
Fewer Total Overstays in 2018
DHS identified 666,580 overstayed visits in 2018. This is a decline of about 5 percent from 2017 and about 10 percent lower than 2016. (See Table 1). According to the report, about 85 percent of these overstayers (570,000) had no record of departure or legal status change by the end of the cut-off date for the study (the end of the fiscal year), and 15 percent (97,000) had returned home after overstaying. Approximately six months after the study cut-off date, another 154,000 individuals had either departed or adjusted status, leaving an estimated 416,000 settled overstayers from 2018.
Overstays increased in two categories: regular short-term visa visitors ("Non-VWP Countries Business/Pleasure") and the category that is largely comprised of guestworkers ("All Other In-Scope Nonimmigrants"). The number of overstays decreased in the Visa Waiver Program, student/exchange visitors, and air and sea arrivals from Canada and Mexico.
Approximately half of the overstays came from 18 countries, listed in Table 2.
Visa Waiver Program Overstays Decline the Most
The Visa Waiver Program (VWP) allows nationals of certain countries to travel to the United States for tourism or business for a period of up to 90 days without obtaining a visa.2 Countries in the VWP have met various requirements set forth by the U.S. government, such as low rates of unqualified applicants, e-passports, enhanced law enforcement and security-related data sharing with the United States, and high security standards for customs and border security.
Table 3 shows the top-five VWP country overstay numbers and rates. While the rates tend to be low because of the large number of visits under VWP (22.9 million in 2018), the program still generates a significant number of overstays (93,000 in 2018).
The number of VWP overstays declined for all of the countries with the most visitors in the program, and the overall number of VWP overstays fell 29 percent to approximately 93,000 compared to 131,000 in 2017. However, each country has its own story. The United Kingdom remained the biggest source of VWP overstays, but the rate declined to just 0.3 percent, representing 14,000 overstays, compared to 26,000 last year, even with a higher number of UK visitors.
Last year, both Portugal and Hungary had rates over 2 percent, triggering a requirement for those governments to initiate programs to reduce those rates or face removal from the program. Both countries succeeded in doing so, with Portuguese and Hungarian overstay rates falling to 1.8 percent and 1.3 percent, respectively.
Short-Term Visa Category Produces the Most Overstays
Citizens of most countries must obtain a visa to travel to the United States. There were fewer visits in this category (15.3 million in 2018) than in the VWP category, but there were more than triple the number of overstays.
While VWP overstays declined sharply compared to 2017, the number of regular short-term visa overstays went up slightly (+1.2 percent), though the overstay rate was relatively unchanged (2.0 percent).
Table 4 shows the top-10 non-VWP countries with the most overstays in 2018. Nigeria has both a high overstay rate (15.2 percent) and high numbers (nearly 30,000 overstays). Several countries, such as Chad and Djibouti, had overstay rates above 30 percent, although with a small number of visitors.
The number of overstays from several countries increased dramatically from 2017-2018, including Nigeria, Yemen, and the Dominican Republic. The top four countries (Brazil, Venezuela, Nigeria, and Colombia) make up more than 40 percent of the total number of overstays. Citizens of Brazil and Venezuela each account for 10 percent of the overstays in this category.
Nigeria is a special concern, because the number of overstays has more than doubled since 2016 (up from 12,500). This record ought to trigger pressure for more drastic steps and more accountability for consular managers at the State Department, such as an outside audit of consular processes by the department's Office of the Inspector General or by the Government Accountability Office (GAO).
Four countries that are subject to the vetting travel ban show up on the list of countries with the poorest visitor visa compliance: Venezuela, Chad, Yemen, and Syria. All had worse compliance in 2018 than the previous year. The government should consider if fewer requests for waivers to the travel ban should be granted in light of this lack of compliance.
Student and Exchange Visas Have Highest Overstay Rates
DHS reported that in 2018 it expected approximately 1.8 million departures by visitors who had entered on student or exchange visitor visas. The vast majority entered on regular student F visas (1.3 million), followed by J-visa exchange visitors (490,000), and M-visa vocational students (16,100).
This category produced nearly 70,000 overstays out of the 1.7 million expected departures, resulting in an overstay rate of 3.7 percent, the highest of the categories.
The country with by far the most overstays was China, with nearly 13,000. The top five countries were responsible for 44 percent of all student and exchange visa overstays (see Table 5).
Ten countries had student/exchange visa overstay rates greater than 30 percent (see Table 5). A majority of the visitors from Eritrea overstayed their visas, and visitors from four countries (Eritrea as well as Congo (Kinshasa), Yemen, and Chad) had rates over 40 percent.
The Trump administration should consider suspending participation in these programs for any country whose overstay rate is greater than 150 percent of the average overstay rate.
In addition, four travel ban countries (Yemen, Chad, Libya, and Somalia) are on the list of the 10 least compliant countries. This suggests that the categories of travelers subject to the travel ban should be expanded to cover all exchange visitors and all but the most select groups of student visa applicants.
Guestworker Programs Also Have Relatively High Overstay Numbers and Rates
The "Other" category reported by DHS consists of the various remaining non-immigrant categories, most of which are guestworkers or other employment-related visas, but also a few "pre-immigrant" categories such as fiancées (in much smaller numbers).
The country with the largest number of overstays in this category was India (over 22,000 overstays), a figure that more than doubled from 2017. As for overstay rates, in three countries — Somalia, Laos, and Yemen — the majority of guestworkers overstayed (see Table 6).
Here, too, the high overstay rates associated with certain countries leads to the conclusion that standards for participation need to be adjusted. No country with an overstay rate that is greater than 150 percent of the average should be allowed to participate, particularly in the low-skill worker categories. Further, the administration should consider expanding the scope of the travel ban categories for both Somalia and Yemen, as guestworkers from these countries have especially poor compliance rates (55 percent and 50 percent overstay rates, respectively).
Policy Recommendations to Reduce Overstays
Congress has been pressing for action on overstays for 25 years, but successive administrations have dragged their feet in making changes. The annual reporting on overstays provides an empirical basis for policy adjustments that can be taken by Congress and the executive branch.
First, the State Department must adjust and issue fewer visas to applicants in categories with poor compliance.
In addition, the Trump administration should end the practice of giving every short-term visa holder a default six-month duration of stay. Instead, the routine admission should be no more than 30 days, unless the traveler can show a credible reason for staying longer. Similarly, the duration of stay for Mexicans using the much-abused Border Crossing Cards intended for shopping and quick visits should again be restricted to 72 hours.
Tweaks using executive authority will help, but the most effective way to deter overstays is to reduce the incentives and increase the risk of consequences. If overstayers cannot easily get a job, a driver's license, and other benefits, there is little point to remaining illegally. Implementing mandatory use of E-Verify and discouraging sanctuary policies will make a big difference.
For those who will not be deterred, there must be more effective enforcement. Unlike illegal border-crossers, who often can be processed administratively by immigration officers upon arrest, visa overstayers are entitled to more generous forms of due process, including a hearing in immigration court and the opportunity for protracted appeals. Our immigration courts now are so dysfunctional that the proceedings for the average overstayer arrested today likely will take over eight years.3 Congress should correct this disparity, perhaps by requiring that certain visa holders waive their rights to a court hearing as a condition of admission, as is the case for those entering under the Visa Waiver Program.
In addition, those who profit from the visa programs that produce too many overstays — whether they are employers, exchange programs, schools, or labor brokers — should be barred from further participation.
The travel sector, certain employer groups, and the education industry have been lobbying the president and Congress to issue more visas for students and guestworkers, expand visa waivers, and back off reforms to exchange programs. It is irresponsible to even consider such proposals until overstays are greatly reduced.
3 Colleen Long, Frank Bajak, and Will Weissert, "As more immigrants wear monitors, effectiveness is disputed", Associated Press, August 25, 2018.