This blog is a summary of my presentation at a CIS panel on August 20, 2019. The full transcript of the panel and video can be found here.
My colleague Dan Cadman has explained how our admission of very large numbers of foreign students and exchange visitors creates national security risks. My colleague David North has explained the large pipeline of additional foreign workers created by the Optional Practical Training (OPT) program.
Compounding the problem is the finding by the Department of Homeland Security's annual overstay report that the student and exchange visa programs have the highest rates of overstays among all broad visa categories (see Table 1). In other words, those who come here on student visas are more likely to violate the terms of their visa and stay on illegally, contributing to our illegal immigration problem.
Table 2 shows the countries with the most people overstaying in the student/exchange categories and also the worst rates of compliance. Both of these metrics are important. Some countries, like China, India, Saudi Arabia, Brazil, and South Korea, have better rates of compliance on paper, but because we admit so many students from those countries even a small percentage of people who overstay translates into a very large number of visa violators. China leads the list in 2018 with almost 13,000 people who overstayed their visas in the student and exchange visitor category. These five countries represent 44 percent of the total number of student/exchange visitor overstays.
Other countries are a problem because of extremely poor compliance rates by their citizens. While we don't issue a lot of visas in these countries, it's still a problem because of countries like Eritrea, where more than half of the people who get a student or exchange visa don't go home. While it was only about 40 people in 2018, it still begs the question: Why are we issuing so many visas in a country where more than half of the people are not going to comply?
Some of these are countries of concern because of national security considerations, such as lacking robust identification programs, and some are travel-ban countries.
Further, some of the countries on this list are so-called recalcitrant countries that do not accept their citizens back for deportation, even if we were to actually locate, arrest, and try to remove them.
The DHS data on student/exchange overstays shows that, over the last three years, even as the number of visa issuances has been reduced, for the most part the overstay rates are still very high. This implies that while reducing issuances helps the overstay problem by reducing the total number who can overstay, the behavior of those who get the visas has not improved. That suggests that there is a need for more deterrence as well — and the best deterrence is stronger enforcement of the existing laws that we have against overstaying.
Table 3 expands on the list from Cadman's report on visa issuances in countries of concern by adding the overstay rates for these countries. Again, we can see very large numbers of overstays from countries of concern for espionage like China and Iran, and countries of national-security concern like Saudi Arabia. In addition, the list includes quite a few countries with double-digit noncompliance rates, like Afghanistan, Iraq, Somalia, and Sudan.
Why should we be so concerned about student and exchange visitors in particular, when the overstay numbers are small relative to some other visa categories, like regular temporary visitor visas? Student/exchange visa overstays represent only about 5 percent of the entire overstay population.
First, because student/exchange visitors are admitted for a long period of time and with relatively little supervision.
Second, because these visa programs allow people who would not otherwise qualify for a visa to gain admission to the United States. These are people who are relatively young, perhaps not in stable employment, and thus represent a high risk for overstaying. But under our system, if they can get a college, community college, vocational school, or exchange program to accept them as participants or enroll them as students, they probably can get a student visa.
For these and other reasons, the student visa program has a proven association with terrorists, such as the 9/11 terrorists, and with espionage.
Similarly, the student/exchange programs attract fraud, some of which has been well documented by David North, including the large number of non-rigorous programs that are essentially visa mills that exist for the sole purpose of facilitating the admission of unqualified foreigners who can then overstay. North estimates that there may be as many as 40,000 individuals who have entered through a fraudulent or bogus student visa program, then also getting access to the OPT Program, and so on, until they just disappear into the woodwork.
Although our government has developed a way to track which students do not maintain status in their course of study and there are ways to determine which entities may not have rigorous academic programs, ICE still devotes very little of its resources to enforcing the law against programs like these and their participants. ICE states explicitly that its overstay enforcement is limited to those students considered to be national-security or public-safety threats, and the rest are largely ignored.
For this discussion I extracted the data on removals of aliens classified by ICE as students from ICE's deportation records for the last three years (obtained through a FOIA request). In that period, ICE removed just over 400 students, with 170 students removed in FY 2018 (the most recent year available). This is a tiny share of the huge population of a million foreign students, and tens of thousands of overstays. I calculated that about four-tenths of 1 percent of student visitors who overstayed that year faced any threat of enforcement. Such a low rate of removals is an incentive for people to try to gain admission as foreign students, knowing that there is very little chance of enforcement if they remain illegally.
So who did ICE go after? The largest number of students removed were from Saudi Arabia, with others from China, Kenya, India, Nigeria, Jordan, and a scattering of other countries (see Table 4 and Table 5). These removals occurred in ICE field offices that are not traditionally known for having the highest numbers of deportations, such as California and Texas. The largest number of cases were in the Seattle field office, with others in Detroit, Chicago, and Miami.
The low number of removals out of a very large pool of overstayers is due to ICE's hyper-focus on national-security and public-safety threats.
This very low level of enforcement is not helping us maintain the integrity of our immigration system, and it is creating an extremely large haystack of potential security threats that our counterterrorism agencies have to contend with. To address this, ICE needs to adopt a much broader approach to enforcing overstays and noncompliance with visas beyond those who are considered national-security and public-safety concerns. ICE must begin using the information gathered through the Student and Exchange Visitor Program databases for more routine compliance and enforcement actions. Of course, the agency still should focus on the fraud schemes and the national-security threats, but there's room in ICE's resources to go beyond that. For example, ICE could begin with a pilot enforcement program that involves call-ins of overstayers to talk with officers, perhaps offering those who respond the opportunity to depart under voluntary return, which is a more lenient form of enforcement.
Congress must help by giving the government more tools, such as sanctions for the schools, employers, and exchange program sponsors that are hosting these visitors.
By implementing the following recommendations, ICE would greatly reduce the contribution of student and exchange visitor programs to the illegal immigration problem. It also would prevent the entry of an unknown number of terrorists, criminals, and spies.
- Develop a permanent funding stream to provide ICE with resources more appropriate to the problem and threat. Enforcement actions must be boosted to meet higher annual goals, to include more removals and more criminal prosecutions.
- Implement new ICE programs to improve compliance:
- Make contact with suspected overstayers, beginning with call-in letters;
- Send emails and texts prior to expiration of duration of stay to warn of consequences;
- Target investigations based on patterns and clusters of violators; and
- Locate, prosecute, and remove those who run fraud schemes, and the visa holders involved in them.
- Mandate enhanced vetting for groups with disproportionate numbers of overstays, such as countries, categories, schools, and exchange programs. Consider disqualifying certain types of educational programs, such as public elementary and secondary schools, community colleges, and certain vocational schools, especially if such programs exist in the applicant's home country. Direct the State Department to issue fewer visas to nationals of countries with high overstay rates, informed by empirical data on overstays and other patterns. Develop a red-flag system for consular officers warning of suspect educational institutions or exchange sponsors.
- Amend the law to create sanctions or other consequences for schools and exchange programs (including third parties and recruiters) with poor non-compliance rates, to include denying authorization to host foreign students. Condition I-20 authority on cooperation and information-sharing with ICE for compliance or investigative purposes — including public institutions in sanctuary jurisdictions.
- Allow imposition of expedited due process, including mandatory waiving of the right to immigration court proceedings after overstaying, as a condition of admission in certain categories.