R47848 — Nonimmigrant Overstays: Overview and Policy Issues

Nonimmigrants are foreign nationals who are lawfully admitted to the United States for a temporary period and specific purpose (e.g., tourism, study, work). They are required to depart the United States prior to the end of their authorized period of admission, unless they obtain an extension of stay or change of status that permits them to remain in the country. Those who do not depart in time are called overstayers. On average, between 1% and 2% of nonimmigrant admissions result in an overstay each year, representing approximately 650,000-850,000 overstays annually from FY2016 through FY2022. An estimated 42% of the approximately 11 million unauthorized population living in the United States entered the country legally but overstayed their period of admission. The Immigration and Nationality Act (INA) includes provisions that are related to the overstay issue, including those that govern the entry and exit of foreign nationals to and from the United States, provide for consequences for overstaying a nonimmigrant admission, and establish requirements for electronic immigration databases and the collection of traveler biometric data. For decades, Congress has been concerned about nonimmigrant overstays as a component of immigration control. In 1996, Congress mandated the development of an automated entry-exit system that would collect and match records of arrivals and departures and thereby identify nonimmigrant overstays. The issue garnered more intense focus after the September 11, 2001, attacks in which at least three of the 19 hijackers were overstayers. Some Members of Congress have expressed frustration that the entry-exit system is incomplete and that, because of this, the government in unable to identify all overstays, particularly for travelers who exit via land ports. They have also expressed dissatisfaction that only a fraction of the thousands of people who overstay each year are targeted for enforcement by the Department of Homeland Security’s (DHS’s) Immigration and Customs Enforcement (ICE) even though they are suspected by the government to be in the United States in violation of immigration law. The lack of a nationwide exit system has made direct, complete measurement of overstays challenging. U.S. transportation hubs and ports of entry were not constructed with exit processing in mind. Given the historical lack of a comprehensive exit-tracking system, the U.S. government and nongovernmental researchers have used estimation techniques over the years to study the number and characteristics of the overstay population. DHS has made progress over the last decade in measuring overstays and has produced annual reports with overstay data since 2016. These reports show variation in overstay rates by class of admission and origin country (including whether the traveler is from a country that participates in the Visa Waiver Program (VWP)). Federal statute confers immigration authorities with broad discretion to determine when it is appropriate to pursue the removal of a foreign national who lacks a legal basis to remain in the country. Resource or humanitarian concerns have typically led authorities to prioritize enforcement actions against subsets of the removable population (e.g., those who have committed certain crimes or pose national security risks). Following the findings of the 9/11 Commission Report, DHS designed an overstay enforcement model focused on those who are deemed the highest risks to national security and public safety. There has long been bipartisan agreement that overstays undermine the integrity of the U.S. immigration system. Various measures exist in current policy to encourage the timely departure of nonimmigrants, and other ideas have been proposed to disincentivize overstays. If policymakers choose to take steps to address nonimmigrant overstays, they might consider policy options in the following areas: completion of the entry-exit system, federal agency roles in deterrence and prevention, interior enforcement, criminal penalties for overstayers, the E-Verify employment verification system, VWP country eligibility, H-2A and H-2B visa country eligibility, foreign diplomacy, visa bonds, wage withholding, increasing legal immigration pathways, and legalization.

Curated by CRS — every bill listed in this report's relatedMaterials. Edge type cited_in_report, gold confidence.

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• HR 3599 — DIGNIDAD (Dignity) Act of 2023 · 118th Cong
• HR 2640 — Border Security and Enforcement Act of 2023 · 118th Cong
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• HR 2 — Secure the Border Act of 2023 · 118th Cong