Presentation by Jessica M. Vaughan at the Smart Borders Conference Institute for Defense and Government Advancement Washington, DC
October 26-27, 2004
No longer an abstract concept, US-VISIT now has become yet another battleground for Congress, the White House, the business community, and other constituencies with conflicting interests over the overall direction of immigration policy. There is no question in my mind that if US-VISIT is fully implemented and well integrated with other robust immigration law enforcement programs, it will help ensure the integrity of the entire non-immigrant visa system, thus helping prevent the entry of terrorists. Certainly there are numerous technological and logistical hurdles to overcome in order for US-VISIT to reach its potential, and other speakers at this conference have covered this ground well. My concern is over what I believe is an equally daunting, more macro-level challenge the challenge of meeting conflicting expectations. On the one hand, this program was enacted because a majority of lawmakers in Congress were convinced that US-VISIT was the way to safely facilitate legal immigration while gaining the ability to catch terrorists and better control illegal immigration, especially by reducing the number of visa overstayers. Upon examination of how this and other border security programs have been implemented, however, it becomes clear that the current administration has far less sweeping goals in mind for US-VISIT. I believe that binding the project's feet in this way could end up wasting our resources without making us all that much safer and without reducing illegal immigration.
We know that the 9/11 attacks were made possible in part due to failures in our immigration system, specifically our temporary visitor program. The 9/11 terrorists obtained visas they were not qualified for, they successfully used altered documents, and they overstayed their visas. Over the years, many of the terrorists we have caught have some immigration violation on their record, and virtually every immigration benefits program we offer has been exploited by terrorists (See The Open Door: How Militant Islamic Terrorists Entered and Remained in the United States, by Steven Camarota, Center for Immigration Studies, 2002).
But recognizing a terrorist at the border is a lot harder than recognizing some other forms of evil; you're not necessarily going to know it when you see it, despite our best efforts at profiling. Terrorists come in all shapes, sizes, and sexes, and may bear passports from any country, or drivers licenses from any state or Canada. It is unrealistic to expect even the best intelligence agencies to stay ahead of their plans. For this reason, the best possible way to prevent the entry of terrorists into the United States is to have a well-functioning immigration system that is set up to deter, detect, and promptly remove anyone and everyone who lacks a legitimate purpose for being here, or who has overstayed their welcome. Such a system requires three things: superior technology, abundant human resources, and the policies to make effective use of both. The complete implementation of US-VISIT will bring us much closer to that ideal.
At the moment, in a dangerous international environment, we are operating a massive temporary entry system, admitting more than 190 million temporary visitors a year, with virtually no quality control. DHS estimates that at least 30 percent of the approximately 10 million illegal immigrants living in the United States are probably visa overstayers. The General Accounting Office (GAO) says that figure is almost certainly understated, and probably significantly so. That means that we have made roughly three to four million visa and admissions mistakes.
Not only do we not know exactly how many overstayers there are, we have little idea where they came from, how long they have been here, what kind of visa they entered on. Are they mainly people who are eligible for green cards and jumping in line, products of our overbooked permanent immigration system? Probably many are. But undoubtedly many have motives less benign, whether economic or criminal. The point is we do not know. DHS does collect some information on visa overstayers when it processes applications for green cards and when it processes people for removal, but that information is not analyzed for the purpose of learning about overstayers. It has been 10 years since anyone at the immigration agency has made any attempt to analyze the overstay population beyond guessing at its size.
This dearth of information significantly handicaps our visa processing and inspections system. Their effective functioning depends on having some understanding of who the risky applicants are. According to the law, to qualify for a visa, applicants must have more going for them than mere absence from the criminal watch list. They must have a legitimate and credible purpose for their visit, and they must show they are likely to return home. The collection of departure information under US-VISIT will help consular officers make better decisions on individual cases and provide a body of data that can be analyzed to set general policies on which kinds of cases may deserve better scrutiny in the consulate. More targeted scrutiny of visa applicants will benefit legitimate travelers, as officials could then focus their attention on the most risky cases.
In addition to assisting in the adjudication of visas, the exit recording feature of USVISIT will help end the practice of using counterfeit foreign entry stamps or obtaining new passports to cover up an overstay.
Visa Waiver Program
Laser Visa Program. The main piece still missing in the scheme is the enrollment of Mexican laser visa holders, the most problematic of the two remaining large categories of travelers (Canadians are the other large group). Very little data exist on the nature of the illegal immigrant population, but one thing we do know is that the vast majority of these individuals about 70 percent -- come from Mexico. We know from green card adjustment data, old INS reports, and academic studies that Mexicans also make up a significant share of the overstays perhaps as many as one-fifth. The refusal rate can be as high as 30 percent in some consulates, which is much higher than the VWP country refusal rates. We know that the border crossing cards are being abused with near impunity. Not only are they are one of the most frequently counterfeited U.S. documents, but even the genuine documents are used fraudulently. They are openly available for rent in the street markets of Juarez and other cities. Meanwhile, security experts warn that terrorist groups are likely to use Mexico as a staging ground for entry into the United States. All of these indicators suggest that the need to scrutinize Mexican visitors is as least as great as the need to scrutinize visitors from every other country in the world.
Laser visas, or border-crossing cards, as they used to be known, were created to give qualified Mexicans a secure biometric document that would give permission to visit the southern border region of the United States for up to three days at a time. It was designed to encourage travel for shopping, business, family visits and tourism. Use of the card for work or study is not permitted other types of visas are issued for those purposes, with much stricter criteria.
The INS and State Department spent millions of dollars over several years to implement the program. Nearly seven million people have the cards, and last year DHS recorded 104 million admissions. However, the program is really no more than an expensive and fancy honor system, because land border inspectors only rarely do name-checks and even more rarely try to authenticate the identity of the card-holder.
Our experience with the laser visa program provides clues to the possible fate of US-VISIT. Among its problems:
- Though the biometric cards were first issued early in 1998 and mandatory by the end of 1999, the scanners to read the cards were not installed at the ports of entry in any significant number until just this year.
- Port of entry inspectors have received very little training on how to use the equipment. Missing from the training programs for the inspectors were techniques as basic as if the card is dirty, just wipe it off, and it will scan properly.
- Although the original plan was for the card scanners to be deployed in the primary inspection area through which all visitors must pass, currently they are installed only in the secondary inspections area, which is used only for those who have requested a longer period of stay, or for those who aroused the suspicions of the primary inspector. Even there, the scanners are not routinely used to verify identity; and are used only as a back-up to manual name checks and questioning.
- Finally, at just about the time the scanners were deployed, when they might actually have begun to detect criminals and fraudulent users, the Department of Homeland Security unilaterally issued a policy change to allow laser visa holders to stay for 30 days, not three. This rule change re-defines the fundamental nature of the card, and makes it far easier for those working, studying, or planning terrorist attacks here in violation of the law to continue to do so without harassment from immigration officials.
The most practical, and most likely way for US-VISIT to be used to enhance interior enforcement is for it to augment existing databases used by the immigration agencies in adjudicating benefits and inspecting travelers. Because US-VISIT is an electronic system, with the information collected directly from the visa, and not paper-based, like the I-94 system, where data had to be manually entered, there will be less delay in getting the information to enforcement officials. This does not necessarily have to mean that a Bureau of Immigration and Custom's Enforcement (ICE) agent's pager will go off at 12:01 a.m. on the day someone's visa expires. A more realistic scenario would involve dumping the US-VISIT confirmed overstay data into other law enforcement and immigration benefits databases, such as NCIC, CLASS, SEVIS, IBIS, and others, so that it will become much more likely that overstayers will be flagged and removed or denied further benefits.
It is unlikely that utilization of the US-VISIT overstay identification capability will make much of a contribution to homeland security and immigration enforcement beyond the passive collection and analysis of data for general purposes of understanding the scope of the overstay problem and possibly helping improve the adjudication of visas and benefits. The reason its contribution will be so limited is because US-VISIT does not fit in with the limited enforcement strategy that has been adopted by the Bureau of Immigration and Customs Enforcement (ICE). Faced with an overwhelming workload and a general ambivalence in its leadership about the problem of illegal immigration, ICE has adopted a triage strategy of immigration law enforcement, focusing on locating and removing serious criminals such as sexual predators and people who have participated in genocide, along with those caught working illegally in sensitive locations, such as airports and tall buildings. The triage approach works well in emergency rooms and MASH units, but is not an ideal model for immigration law enforcement. For this, we should look to agencies such as the IRS or traffic police departments. These organizations face similar work loads and assumptions, such as the understanding that they will not catch every violator. In addition to devoting a certain amount of resources to catching the worst offenders, these organizations also seek to encourage voluntary compliance with the law by using random audits, occasional speed traps, and meter maids. Even though they do not catch every tax cheat, speeder or parking space overstayer, the possibility of being caught is great enough for most people to comply voluntarily most of the time. US-VISIT makes it possible to at least experiment with the random enforcement model even on a very small scale.
We have much good solid experience from which to draw when considering options for addressing the security and management issues of US-VISIT, to ensure that the program does not have the effect of choking off legitimate travel and commerce, and DHS and State are already working on these. Programs like NEXUS, SENTRI, and overseas pre-inspections have all been shown to help minimize the impact of new security measures on lines at the ports of entry. Increased staffing would also help. On the other hand, policies like the wait time mitigation strategy, where DHS officials can suspend the US-VISIT program if the lines at the airport get too long, are potentially dangerous over the long term, and must be discouraged, if not forbidden.
Above all, it is important to remember that US-VISIT provides a valuable service to foreign travelers and the American people alike by helping ensure the safety of international travel. By extension this also benefits the travel industry; after all, that is the industry that stands to lose the most in the event of another attack, or if travel is perceived to be unsafe. As the higher education community learned from the SEVIS experience, remaining in denial about the need or feasibility of a fully-implemented US-VISIT program is counterproductive, and results in the marginalization of their legitimate views and input.
The Next Frontiers for Technology in Immigration Law Enforcement
For immigration law enforcement to be successful, it has to extend beyond the border. Technology certainly has a key role to play, and can be used to enhance existing efforts and develop new ones. There are at least three important technology-based concepts whose widespread application could dramatically boost our efforts to control illegal immigration and thereby enhance national security:
- Workplace enforcement We have in place a pilot program to make it easier for employers to verify that non-citizen employees have permission to work in this country through a central database of legal immigrants and guestworkers. Only a handful of employers use it now, but most like it, and some in Congress would like to see the program expanded.
- Secure driver's licenses More and more states are tightening up their laws to restrict access to licenses to those with permission to be in the country.
- Alternatives to detention It has come to the attention of the public and Congress that DHS has been operating a vast catch and release program that imposes no real consequences for apprehended illegal aliens. It is physically and financially impossible to jail all of these individuals, so officials have begun to explore other ways to enable and encourage compliance with removal orders.
Beyond the border, other nations are watching our progress and considering the options they have to improve their systems and interface with ours. So far, at least seven other countries are considering adopting US-VISIT-like programs, including Canada, Japan, the United Kingdom, Hong Kong, Australia, Switzerland, and Korea. Even with the current administration's limited embrace of US-VISIT, the program stands as a model for what we can accomplish by harnessing technology in pursuit of homeland security.
Jessica Vaughan is a Senior Policy Analyst at the Center for Immigration Studies.