Schumer-Corker-Hoeven Overstay Provisions Overstated

By Jessica M. Vaughan on June 24, 2013

Among the faux enforcement improvements being hyped by supporters of the deceptive Schumer-Corker-Hoeven substitute amendment to the Gang of Eight bill is a new section titled "Removal of Nonimmigrants Who Overstay Their Visas". Not exactly.

The new provision (Section 1201) says that no later than six months after the enactment of the bill, the DHS Secretary shall begin dealing with those foreign visitors who arrived after the bill's enactment and who overstayed their temporary visa by at least six months. The Secretary is required to deal with at least 90 percent of the overstayers.

Here are the Secretary's choices:

  1. Initiate removal proceedings;

  2. Confirm that the alien is eligible for some form of relief; or

  3. Close the case.

Hmm, I wonder, what Secretary Napolitano would do?

The amendment also stipulates that the secretary must report to Congress every six months with an estimate on the number of new overstays, their country of citizenship, and the type of visa they used – all critical information for immigration policymakers, which is why Congress has required the reporting of this information for many years.

Unfortunately, the reports will be of limited utility, because there still is no viable system for DHS to effectively collect this information in a useful form. The amendment only suggests that DHS implement an "electronic" (not biometric) entry-exit system at air and sea (not land, where the majority of overstayers, and entries in general, occur).

The secretary must also report how many times each of the three actions listed above was performed – if the secretary decides to implement this provision at all, because nearly every enforcement and security measure in the bill can be waived or discarded by the secretary. Moreover, the amendment does not require the secretary to report on how many removals of overstayers have been carried out. We can expect that number to be small, because other parts of the bill set up unprecedented obstacles to removal of any aliens, even those with criminal records.

The amendment also establishes a pilot program (Section 1202) to collect contact information from foreign visitors so that they can be notified if it is discovered that they have overstayed. This is a good idea, but it is hard to imagine how this pilot can succeed if DHS lacks good underlying data to identify who has overstayed to begin with. Most expert observers (including many of my sources who use these systems in federal agencies) agree that the current biographic systems will fail to generate enough actionable information to effectively target overstayers in a systematic way. The GAO agrees that DHS currently has no way to accurately identify overstayers.

The new overstay provision is just one of many fake enforcement provisions that are supposed to occur, but won't, long after the amnesty is underway.