Overstay Enforcement
Additional Mechanisms for Collecting, Assessing, and Sharing Data Could Strengthen DHS's Efforts but Would Have Costs Gao ID: GAO-11-411 April 15, 2011According to Pew Hispanic Center estimates, approximately 4 million to 5.5 million unauthorized immigrants in the United States entered the country legally on a temporary basis but then overstayed their authorized periods of admission--referred to as overstays. As requested, GAO examined the extent to which the Department of Homeland Security (DHS) (1) takes action to address overstays and its reported results; and (2) identifies overstays and shares this information among its border security and immigration enforcement components. GAO reviewed relevant documents, such as standard operating procedures, DHS guidance, and overstay investigations data from fiscal years 2006 through 2010; interviewed officials from DHS components; and visited 6 DHS field offices and 12 ports of entry based on geographic dispersion, among other factors. The results of these visits are not generalizable, but provided insights into DHS operations.
DHS takes actions to address a small portion of the estimated overstay population due to, among other things, competing priorities; however, these efforts could be enhanced by improved planning and performance management. Since fiscal year 2006, U.S. Immigration and Customs Enforcement (ICE), the principle DHS component responsible for overstay enforcement, has allocated about 3 percent of its investigative work hours to overstay investigations and its Counterterrorism and Criminal Exploitation Unit (CTCEU), which prioritizes and investigates possible overstays, has arrested approximately 8,100 overstays. ICE is considering assigning some responsibility for noncriminal overstay enforcement to its Enforcement and Removal Operations (ERO) directorate, which has responsibility for apprehending and removing illegal aliens from the United States. However, ERO does not plan to assume this responsibility until ICE assesses the funding and resources doing so would require. ICE has not established a time frame for completing this assessment. By developing such a time frame and utilizing the assessment findings, as appropriate, ICE could strengthen its planning efforts and be better positioned to hold staff accountable for completing the assessment. In addition, CTCEU does not have mechanisms to assess program performance in accordance with leading performance management practices. By establishing such mechanisms, CTCEU could better ensure that managers have information to assist in making decisions for strengthening overstay enforcement efforts and assessing performance against CTCEU's goals. In the absence of a biometric entry and exit system, DHS uses various methods for identifying overstays, primarily biographic data, and sharing of overstay information; however, DHS faces challenges in collecting departure data and does not share information about all categories of suspected overstays among its components. For example, U.S. Customs and Border Protection (CBP), the DHS component charged with inspecting all people who enter the United States, does not provide a standard mechanism for nonimmigrants departing the United States through land ports of entry to remit their arrival and departure forms. These forms contain information, such as arrival and departure dates, used by DHS to identify overstays. CBP officials stated that establishing such a mechanism could help the agency increase its collection of departure data, but could also result in costs related to, for example, physical modifications to land ports of entry. If the benefits outweigh the costs, such a mechanism could help DHS obtain more complete and reliable departure data for identifying overstays. DHS also shares overstay information among its components through various mechanisms. For example, DHS creates electronic alerts for certain categories of overstays, such as those who overstay by more than 90 days, but does not create alerts for those who overstay by less than 90 days to focus efforts on more egregious overstay violators, as identified by CBP. Expanding the categories of overstays assigned an alert to the extent that benefits outweigh costs could improve the chance that these individuals are identified as overstays during subsequent encounters with federal officials, such as when they apply for readmission to the United States. GAO recommends, among other things, that DHS establish a time frame for completing overstay enforcement planning, performance measurement mechanisms, and, if benefits outweigh costs, a mechanism for collecting departure forms at land borders and alerts for additional categories of overstays. DHS concurred with our recommendations.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Richard M. Stana Team: Government Accountability Office: Homeland Security and Justice Phone: (202) 512-8816GAO-11-411, Overstay Enforcement: Additional Mechanisms for Collecting, Assessing, and Sharing Data Could Strengthen DHS's Efforts but Would Have Costs
This is the accessible text file for GAO report number GAO-11-411
entitled 'Overstay Enforcement: Additional Mechanisms for Collecting,
Assessing, and Sharing Data Could Strengthen DHS's Efforts but Would
Have Costs' which was released on May 4, 2011.
This text file was formatted by the U.S. Government Accountability
Office (GAO) to be accessible to users with visual impairments, as
part of a longer term project to improve GAO products' accessibility.
Every attempt has been made to maintain the structural and data
integrity of the original printed product. Accessibility features,
such as text descriptions of tables, consecutively numbered footnotes
placed at the end of the file, and the text of agency comment letters,
are provided but may not exactly duplicate the presentation or format
of the printed version. The portable document format (PDF) file is an
exact electronic replica of the printed version. We welcome your
feedback. Please E-mail your comments regarding the contents or
accessibility features of this document to Webmaster@gao.gov.
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed
in its entirety without further permission from GAO. Because this work
may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this
material separately.
United States Government Accountability Office:
GAO:
Report to the Committee on Homeland Security and Governmental Affairs,
U.S. Senate:
April 2011:
Overstay Enforcement:
Additional Mechanisms for Collecting, Assessing, and Sharing Data
Could Strengthen DHS's Efforts but Would Have Costs:
GAO-11-411:
GAO Highlights:
Highlights of GAO-11-411, a report to the Committee on Homeland
Security and Governmental Affairs, U.S. Senate.
Why GAO Did This Study:
According to Pew Hispanic Center estimates, approximately 4 million to
5.5 million unauthorized immigrants in the United States entered the
country legally on a temporary basis but then overstayed their
authorized periods of admission”referred to as overstays. As
requested, GAO examined the extent to which the Department of Homeland
Security (DHS) (1) takes action to address overstays and its reported
results; and (2) identifies overstays and shares this information
among its border security and immigration enforcement components. GAO
reviewed relevant documents, such as standard operating procedures,
DHS guidance, and overstay investigations data from fiscal years 2006
through 2010; interviewed officials from DHS components; and visited 6
DHS field offices and 12 ports of entry based on geographic
dispersion, among other factors. The results of these visits are not
generalizable, but provided insights into DHS operations.
What GAO Found:
DHS takes actions to address a small portion of the estimated overstay
population due to, among other things, competing priorities; however,
these efforts could be enhanced by improved planning and performance
management. Since fiscal year 2006, U.S. Immigration and Customs
Enforcement (ICE), the principle DHS component responsible for
overstay enforcement, has allocated about 3 percent of its
investigative work hours to overstay investigations and its
Counterterrorism and Criminal Exploitation Unit (CTCEU), which
prioritizes and investigates possible overstays, has arrested
approximately 8,100 overstays. ICE is considering assigning some
responsibility for noncriminal overstay enforcement to its Enforcement
and Removal Operations (ERO) directorate, which has responsibility for
apprehending and removing illegal aliens from the United States.
However, ERO does not plan to assume this responsibility until ICE
assesses the funding and resources doing so would require. ICE has not
established a time frame for completing this assessment. By developing
such a time frame and utilizing the assessment findings, as
appropriate, ICE could strengthen its planning efforts and be better
positioned to hold staff accountable for completing the assessment. In
addition, CTCEU does not have mechanisms to assess program performance
in accordance with leading performance management practices. By
establishing such mechanisms, CTCEU could better ensure that managers
have information to assist in making decisions for strengthening
overstay enforcement efforts and assessing performance against CTCEU‘s
goals.
In the absence of a biometric entry and exit system, DHS uses various
methods for identifying overstays, primarily biographic data, and
sharing of overstay information; however, DHS faces challenges in
collecting departure data and does not share information about all
categories of suspected overstays among its components. For example,
U.S. Customs and Border Protection (CBP), the DHS component charged
with inspecting all people who enter the United States, does not
provide a standard mechanism for nonimmigrants departing the United
States through land ports of entry to remit their arrival and
departure forms. These forms contain information, such as arrival and
departure dates, used by DHS to identify overstays. CBP officials
stated that establishing such a mechanism could help the agency
increase its collection of departure data, but could also result in
costs related to, for example, physical modifications to land ports of
entry. If the benefits outweigh the costs, such a mechanism could help
DHS obtain more complete and reliable departure data for identifying
overstays. DHS also shares overstay information among its components
through various mechanisms. For example, DHS creates electronic alerts
for certain categories of overstays, such as those who overstay by
more than 90 days, but does not create alerts for those who overstay
by less than 90 days to focus efforts on more egregious overstay
violators, as identified by CBP. Expanding the categories of overstays
assigned an alert to the extent that benefits outweigh costs could
improve the chance that these individuals are identified as overstays
during subsequent encounters with federal officials, such as when they
apply for readmission to the United States.
What GAO Recommends:
GAO recommends, among other things, that DHS establish a time frame
for completing overstay enforcement planning, performance measurement
mechanisms, and, if benefits outweigh costs, a mechanism for
collecting departure forms at land borders and alerts for additional
categories of overstays. DHS concurred with our recommendations.
View [hyperlink, http://www.gao.gov/products/GAO-11-411] or key
components. For more information, contact Richard Stana at (202) 512-
8777 or stanar@gao.gov.
[End of section]
Contents:
Letter:
Background:
Federal Agencies Take Actions against a Small Portion of the Estimated
Overstay Population, but Strengthening Prioritization and Assessment
of Overstay Efforts Could Improve Enforcement:
More Reliable, Accessible Data Could Improve DHS's Efforts to Identify
and Share Information on Overstays:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Department of Homeland Security Identification of
Overstays:
Appendix III: Comments from the Department of Homeland Security:
Appendix IV: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Overstay Categories and Legal Consequences for Nonimmigrants
Overstaying Their Authorized Periods of Admissions:
Table 2: Roles and Responsibilities of Federal Agencies for Addressing
Overstays:
Table 3: Key Federal Databases Used for Identifying Overstays:
Table 4: Primary DHS Information Sharing Activities that Contribute to
Federal Overstay Enforcement Actions:
Table 5: Number of Records Processed and Identified as Potential
Overstays from Fiscal Years 2005-2010:
Table 6: CTCEU Processing of In-Country Overstay Leads from Fiscal
Years 2004-2010:
Figures:
Figure 1: Process for Nonimmigrant Entry to and Exit from the United
States:
Figure 2: Percentage of Closed CTCEU In-Country Overstay
Investigations Resulting in Arrest (as of Oct. 2010):
Figure 3: Fiscal Years 2004-2010 Outcomes of CTCEU Overstay Cases Not
Resulting in Arrest:
Figure 4: ICE Reported Percentage of Field Office Investigative Hours
Dedicated to Overstay Cases:
Figure 5: US-VISIT Review Process for Identifying In-Country Overstay
Leads:
Figure 6: CTCEU Processing of Overstay Leads from Fiscal Years 2004-
2010:
Figure 7: State Department Visa Refusals and CBP Admission Refusals on
Records with US-VISIT Overstay Lookouts from Fiscal Years 2006-2010:
Figure 8: US-VISIT Process for Identifying Out-of-Country Overstays:
Abbreviations:
CBP: U.S. Customs and Border Protection:
CTCEU: Counterterrorism and Criminal Exploitation Unit:
DHS: Department of Homeland Security:
ERO: Enforcement and Removal Operations:
ICE: U.S. Immigration and Customs Enforcement:
POE: port of entry:
USCIS: U.S. Citizenship and Immigration Services:
US-VISIT: U.S. Visitor and Immigrant Status Indicator Technology:
VWP: Visa Waiver Program:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
April 15, 2011:
The Honorable Joseph Lieberman:
Chairman:
The Honorable Susan Collins:
Ranking Member:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
The most recent estimates from the Pew Hispanic Center approximated
that, in 2006, out of an unauthorized resident alien population of
11.5 million to 12 million in the United States, about 4 million to
5.5 million were overstays.[Footnote 1] These are individuals who were
admitted to the country legally on a temporary basis--either with a
visa, or in some cases, as a visitor who was allowed to enter without
a visa--but then overstayed their authorized periods of admission.
[Footnote 2] The overstay population is comprised of individuals from
various global regions, including Europe, South America, Asia, and the
Middle East. In February 2008, we reported that most overstays are
likely motivated by economic opportunities to stay in the United
States beyond their authorized periods of admission.[Footnote 3]
Individuals overstaying their authorized periods of admission could
pose homeland security concerns. For example, in some instances
overstays have been identified as terrorists or involved in terrorist-
related activity, such as 5 of the 19 September 11, 2001, hijackers.
[Footnote 4] In addition, according to Department of Homeland Security
(DHS) data, of approximately 400 individuals reported by the
Department of Justice as convicted in the United States as a result of
international terrorism-related investigations conducted from
September 2001 through March 2010, approximately 36 were overstays.
[Footnote 5]
DHS has primary responsibility for identifying and taking enforcement
action to address overstays, and several of its components and
programs contribute to these efforts. U.S. Customs and Border
Protection (CBP) is tasked with, among other duties, inspecting all
people applying for entry to the United States to determine their
admissibility to the country and screening Visa Waiver Program (VWP)
applicants to determine their eligibility to travel to the United
States under the program. U.S. Immigration and Customs Enforcement
(ICE) is the lead agency for enforcing immigration law in the interior
of the United States and is primarily responsible for overstay
enforcement. The United States Visitor and Immigrant Status Indicator
Technology Program (US-VISIT) within DHS's National Protection and
Programs Directorate supports the identification of nonimmigrant
overstays. U.S. Citizenship and Immigration Services (USCIS) is
responsible for adjudicating applications and petitions for
immigration and citizenship benefits and the Office of Policy
Development is responsible for policy and oversight of the VWP. In
addition, the Department of State is responsible for issuing visas to
foreign nationals seeking admission to the United States.
In light of the potential homeland security risk posed by overstays,
you asked us to review DHS efforts to identify, address, and share
information on overstays. This report addresses the following
questions:
* To what extent do federal agencies take action against overstays,
and what have been the reported results?
* To what extent does DHS identify and share information on overstays
among its components and with federal, state, and local agencies?
To determine the extent to which federal agencies take action against
overstays, we analyzed ICE documentation, such as policy manuals,
regarding its processes for identifying and investigating possible
overstays located within the United States. We obtained and analyzed
data from ICE on the investigations of its Counterterrorism and
Criminal Exploitation Unit (CTCEU), which is primarily responsible for
overstay investigations, from fiscal years 2004 through 2010 and ICE's
overstay investigative work hours from fiscal years 2006 through 2010
to determine the extent to which ICE has dedicated investigative
resources to overstay investigations.[Footnote 6] To assess the
reliability of these data, we reviewed documentation on ICE's data
system internal controls and interviewed knowledgeable agency
officials about the source of the data and the quality assurance steps
performed to help ensure data reliability. We determined that the data
were sufficiently reliable for the purposes of our report. To evaluate
ICE's overstay enforcement efforts, we assessed the extent to which
CTCEU's program practices adhered to standard practices for program
management and internal control standards.[Footnote 7] Furthermore, we
interviewed ICE officials from CTCEU and Enforcement and Removal
Operations (ERO) headquarters, and conducted site visits to 6 of ICE's
26 Special Agent in Charge field office locations--Seattle, Wash.; Los
Angeles and San Diego, Calif.; Miami, Fla.; New York, N.Y.; and
Newark, N.J. We selected these locations based on a mix of criteria,
including the number of completed overstays investigations, geographic
location, and locations near CBP ports of entry (POE).[Footnote 8]
Although the results from our interviews with officials at these
locations cannot be generalized to officials at all field offices, the
site visits provided us with useful insights into the experiences of
ICE officials responsible for investigating overstays, including their
views on the processes ICE has established for conducting these
investigations. In addition, we obtained data and interviewed
officials from CBP and the State Department regarding their actions
against overstays attempting to obtain a new visa or gain admission to
the United States after having previously overstayed. In particular,
we analyzed data from CBP on the number of overstays it determined to
be inadmissible from fiscal years 2005 through 2010, and from the
State Department on the number of visas it refused due to prior
overstay violations from fiscal years 2005 through 2010.[Footnote 9]
We assessed the reliability of these data by interviewing officials
familiar with the processes used to collect, record, and analyze the
data, and determined that the data were sufficiently reliable for the
purposes of our report.
To determine the extent to which DHS identifies and shares information
on overstays, we analyzed the processes DHS and its components,
particularly CTCEU and US-VISIT, use to evaluate suspected overstay
records and collect nonimmigrant arrival and departure information. We
compared DHS processes to internal control standards; analyzed US-
VISIT and CTCEU program documentation, such as guidance for evaluating
overstay records; and analyzed data on the number of overstay leads
identified and reviewed by US-VISIT from fiscal years 2005 through
2010 and by CTCEU from fiscal years 2004 through 2010.[Footnote 10] We
assessed the reliability of these data by interviewing US-VISIT and
CTCEU officials who were familiar with the data systems and by
reviewing program documentation and data systems' internal control
procedures, and we determined that these data were sufficiently
reliable for the purposes of our report. Further, we interviewed
officials from US-VISIT, CTCEU, and the DHS Office of Immigration
Statistics about the processes and systems used to analyze arrival and
departure information and other immigration records for the purpose of
identifying overstays. We also interviewed officials at CBP Office of
Field Operations headquarters and conducted site visits to three land
POEs, four sea POEs, and five air POEs to observe and obtain
officials' views on the processes and systems used by CBP to inspect
passengers and collect nonimmigrant arrival and departure information.
We selected the POEs to visit based on their geographic proximity to
other types of POEs (i.e., land, sea, or air) and to include POEs
dispersed throughout the country, as well as their proximity to ICE
field offices we visited. Although we cannot generalize the
information obtained during the site visits to the experience of CBP
officials at all POEs, these visits provided us with useful insights
into the processes CBP uses to inspect travelers and collect
nonimmigrant information at POEs, as well as the mechanisms DHS uses
to share information about overstays. Additionally, to assess DHS's
efforts to share overstay information, we interviewed officials from
US-VISIT, ICE, and USCIS about their respective roles in sharing
overstay information with DHS components and other federal, state, and
local agencies, and also reviewed program documentation about the
information sharing activities administered by these agencies.
[Footnote 11]
We conducted this performance audit from February 2010 through April
2011, in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives. A more
detailed discussion of our scope and methodology is contained in
appendix I.
Background:
Process for Gaining Admission to the United States:
Each year, millions of visitors come to the United States legally on a
temporary basis. From fiscal year 2005 through fiscal year 2010, the
State Department issued over 36 million nonimmigrant visas.[Footnote
12] Approximately 82 percent of these visas were issued to
nonimmigrants for business travel, pleasure, tourism, medical
treatment, or for foreign and cultural exchange student programs. In
addition, from fiscal year 2005 through fiscal year 2010, over 98
million visitors were admitted to the United States under the VWP.
Generally, nonimmigrants wishing to visit the United States gain
permission to apply for admission to the country through one of two
ways. First, those eligible for the VWP apply online to establish
eligibility to travel under the VWP prior to departing for the United
States.[Footnote 13] Second, those not eligible for the VWP and not
otherwise exempt from the visa requirement must visit the U.S.
consular office with jurisdiction over their place of residence or, in
certain circumstances, the area in which they are physically present
but not resident, to obtain a visa.[Footnote 14] Upon arriving at a
POE, nonimmigrants must undergo inspection by CBP officers, who
determine whether or not they may be admitted into the United States.
A CBP primary inspection officer first collects biographic and
biometric information from a nonimmigrant. If during this process the
officer has any concerns regarding the nonimmigrant's admissibility to
the United States, the primary officer refers him or her for more in-
depth, secondary inspection. If CBP determines a nonimmigrant is
admissible, he or she is granted an authorized period of admission. In
addition, visitors traveling on nonimmigrant visas are issued a Form I-
94, and visitors from the VWP countries are issued a Form I-94W while
in transit to or upon their arrival to a United States POE.[Footnote
15] Each visitor is to give the top half of the form to a CBP officer
and to retain the bottom half, which should be collected when the
visitor departs the country to record their exit. See figure 1 for the
process by which nonimmigrants enter and exit the United States.
Figure 1: Process for Nonimmigrant Entry to and Exit from the United
States:
[Refer to PDF for image: illustration]
Pre-entry:
Obtain visa or travel authorization.
Arrival:
Manifest.
Primary inspection biographic and biometric information collected:
Port of Entry:
a, I-94 visa;
b. VWP: Electronic authorization;
c. I-94 visa;
d. VWP: I-94W.
Secondary inspection:
If CBP has concerns, additional inspection required.
Status granted for authorized period of admission:
Exit.
Source: GAO analysis of DHS information; and Art Explosion (clipart).
[End of figure]
Definition and Regulatory Overview of Overstays:
An overstay is a nonimmigrant who is legally admitted to the United
States for an authorized period but remains in the country illegally
after that period expired without obtaining an extension of stay or a
change of status or meeting other specific conditions, such as
claiming asylum.[Footnote 16] In-country overstays refer to
nonimmigrants who have exceeded their authorized periods of admission
and remain in the United States without lawful status, while out-of-
country overstays refer to individuals who have departed the United
States but who, on the basis of arrival and departure information,
stayed beyond their authorized periods of admission. As shown in table
1, nonimmigrants who overstay generally fall into one of three
categories. The statute establishes consequences for nonimmigrant visa
holders, foreign students and exchange visitors, and nonimmigrants
admitted without a visa, such as VWP nonimmigrants, who overstay their
authorized periods of admission.[Footnote 17]
Table 1: Overstay Categories and Legal Consequences for Nonimmigrants
Overstaying Their Authorized Periods of Admissions:
Overstay category: Nonimmigrant visa holders;
Description of category: Nonimmigrants, such as those traveling under
temporary visas for business or pleasure (which includes medical
treatment), including nonimmigrants required to register under the
National Security Entry-Exit Registration System--a program that
requires certain visitors or nonimmigrants to register with DHS for
national security reasons.[A] Most nonimmigrant visa holders admitted
for business, pleasure, or medical treatment generally are allowed to
travel up to 6 months in the United States, after which they must
depart the country unless granted an extension of stay;
Legal consequence for overstaying: In general, aliens who were
unlawfully present in the United States for a period of more than 180
days but less than 1 year and voluntarily departed the United States
prior to the commencement of legal proceedings to remove them from the
country are inadmissible for 3 years. In addition, aliens who were
unlawfully present in the United States for 1 year or more, and who
again seek admission within 10 years of the date of their departure or
removal from the United States, are inadmissible.[B] For nonimmigrants
whose overstay violations fall below 180 days, their visas are void
and the State Department has the discretion to determine whether to
issue them new visas and CBP has the discretion to readmit them into
the country.
Overstay category: Foreign students or exchange visitor visa holders;
Description of category: In general, foreign students remain "in
status" and therefore eligible to stay in the United States under
their student visas as long as they are enrolled in a qualified
education program. Individuals traveling on student visas are not
generally issued a specific date until which they are authorized to
remain in the United States, but instead are admitted for what is
referred to as "duration of status."[C] This means that they may
remain in the country until their visa expires so long as they
maintain their student status (e.g., by enrolling in an academic
program), and must depart within a specified period after completing
their studies. Exchange visitors and vocational students generally are
admitted for a specified period, although extensions are possible;
Legal consequence for overstaying: In general, if students and
exchange visitors fail to maintain their student or exchange status or
to depart on time, they are considered out of status and begin to
accrue unlawful presence either on the day after USCIS or an
immigration judge determines that they are out of status or on the day
after their authorized period of admission expires (if given a
specified date). They are subject to 3 and 10 year bars on their re-
admission to the country, respectively, if they accrue more than 180
days or 1 year of unlawful presence.
Overstay category: Nonimmigrants admitted to the United States without
a visa;
Description of category: Nonimmigrants who are admitted without a
visa, including those traveling under the VWP. Nonimmigrants traveling
to the United States through the VWP are admitted for up to 90 days;
Legal consequence for overstaying: If nonimmigrants traveling under
the VWP stay beyond the authorized 90-day limit, they must obtain a
visa from the U.S. consulate in their country of residence or physical
presence in order to visit the United States again. They are subject
to 3 and 10 year bars on their re-admission to the country,
respectively, if they accrue more than 180 days or one year of
unlawful presence.
Source: GAO analysis of DHS and State Department information.
[A] The visa categories provided to nonimmigrants traveling for these
reasons are B-1 (temporary work), B-2 (pleasure or medical treatment),
and B-1/B-2 (work and pleasure visa). Nonimmigrants may also travel
under various other types of visas, such as for temporary religious
and agricultural work.
[B] 8 U.S.C. §1182(a)(9)(B). For many overstays, unlawful presence
generally begins to accrue once an alien remains in the United States
beyond his or her authorized period of admission without authorization.
[C] Because DHS components identify and take enforcement action to
address out-of-status students through the same processes as
overstays, out-of-status students are included in the definition of
overstays for the purpose of this report.
[End of table]
Comprehensive Biometric Entry and Exit System:
The Immigration and Naturalization Service Data Management Improvement
Act of 2000 required implementation of an integrated entry and exit
data system for foreign nationals.[Footnote 18] This act replaced in
its entirety a provision of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 that had required an automated
system to record and then match the departure of every foreign
national from the United States to the individual's arrival record.
[Footnote 19] The Immigration and Naturalization Service Data
Management Improvement Act instead required an electronic system that
would provide access to and integrate foreign national arrival and
departure data that are authorized or required to be created or
collected under law and are in an electronic format in certain
databases, such as those used at POEs and consular offices. In 2002,
DHS initiated the US-VISIT program to develop a comprehensive entry
and exit system to collect biometric data from aliens traveling
through United States POEs. In 2004, US-VISIT initiated the first step
of this program by collecting biometric data on aliens entering the
United States. The Intelligence Reform and Terrorism Prevention Act of
2004 required the Secretary of Homeland Security to develop a plan to
accelerate full implementation of an automated biometric entry and
exit data system that matches available information provided by
foreign nationals upon their arrival and departure from the United
States.[Footnote 20] In August 2007, we reported that while US-VISIT
biometric entry capabilities were operating at air, sea, and land
POEs, exit capabilities were not, and that DHS did not have a
comprehensive plan or a complete schedule for biometric exit
implementation. In addition, we reported that DHS continued to propose
spending tens of millions of dollars on US-VISIT exit projects that
were not well-defined, planned, or justified on the basis of costs,
benefits, and risks.[Footnote 21] Since 2004, we have made numerous
recommendations to address US-VISIT weaknesses, including that DHS
ensure that US-VISIT expenditure plans fully disclose what system
capabilities and benefits are to be delivered, by when, and at what
cost, as well as how the program is being managed.[Footnote 22] DHS
has reported taking action to address them.
With regard to a biometric exit capability at land POEs, we reported
in December 2006 that US-VISIT officials concluded that, for various
reasons, a biometric US-VISIT exit capability could not be implemented
without incurring a major impact on land facilities.[Footnote 23]
Specifically, we reported that an interim nonbiometric technology test
using radio frequency identification to collect departure information
at land POEs did not meet the statutory requirement for a biometric
exit capability and could not ensure that visitors who entered the
country were those who departed. In December 2009, DHS initiated a
land exit pilot to collect departure information from temporary
workers traveling through two Arizona land POEs. Under this pilot,
temporary workers who entered the United States at these POEs were
required to register their final departure by providing biometric and
biographic information at exit kiosks located at the POEs. DHS plans
to use the results of this pilot to help inform future decisions on
the pedestrian component of the long-term land exit component of a
comprehensive exit system.
With regard to air and sea POEs, in April 2008, DHS announced its
intention to implement biometric exit verification at air and sea POEs
in a Notice of Proposed Rule Making.[Footnote 24] Under this notice,
commercial air and sea carriers would be responsible for developing
and deploying the capability to collect biometric information from
departing travelers and transmit it to DHS. DHS received comments on
the notice and has not yet published a final rule. Subsequent to the
rule making notice, on September 30, 2008, the Consolidated Security,
Disaster Assistance, and Continuing Appropriations Act, 2009, was
enacted, which directed DHS to test two scenarios for an air exit
solution.[Footnote 25] DHS conducted these pilots in 2009, and we
reported on them in August 2010. We concluded that the limitations we
identified with the pilots curtailed their ability to inform a
decision for a long-term air exit solution and pointed to the need for
additional sources of information on air exit's operational impacts.
[Footnote 26] We recommended that the Secretary of Homeland Security
identify additional sources of information beyond the pilots, such as
comments from the Notice of Proposed Rule Making, to inform an air
exit solution decision. DHS agreed with the recommendation and stated
that the pilots it conducted would not serve as the sole source of
information to inform an air exit solution decision.
Federal Agencies' Roles and Responsibilities:
DHS and its components and programs, including CBP, US-VISIT, ICE, and
USCIS are primarily responsible for taking action to identify and
address overstays, as shown in table 2. In addition, the State
Department is responsible for ensuring that the department's visa
issuances follow guidelines related to overstays to ensure that
individuals who have overstayed and are ineligible for a visa do not
receive one. State Department's responsibilities also include
identifying and denying nonimmigrant visas to potential intending
immigrants--individuals who intend to remain in the United States for
an indefinite period.
Table 2: Roles and Responsibilities of Federal Agencies for Addressing
Overstays:
Federal agency: CBP Office of Field Operations;
Overall role: Executes policies and procedures at POEs for the
screening of travelers and merchandise entering the United States;
Overstay responsibilities:
* Determines nonimmigrant admissibility based in part on previous
overstay violations and provides nonimmigrants an "admit until" date,
by which the individual must leave the country to avoid overstaying;
* Collects biographic and biometric information to verify nonimmigrant
entry into the country and biographic information to verify
nonimmigrant exit from the country.
Federal agency: DHS US-VISIT;
Overall role: Provides overstay and other information to various
agencies;
Overstay responsibilities:
* Identifies overstays by matching arrival and departure information
collected primarily through the Arrival and Departure Information
System;
* Provides overstays information primarily to;
* CTCEU and also shares overstay information with USCIS and CBP.
Federal agency: ICE Homeland Security Investigations CTCEU and field
offices;
Overall role: Investigate a wide range of domestic and international
activities arising from the illegal movement of people and goods into,
within, and out of the United States;
Overstay responsibilities:
* CTCEU: Uses information provided by US-VISIT and databases to
identify visa, VWP, and national security registrant overstays, and
out of status students, then assigns leads for further investigation
by field offices;
* Field offices: Investigate overstay cases and determine appropriate
action to be taken, including initiating administrative procedures to
remove an individual from the country, if appropriate.
Federal agency: ICE ERO;
Overall role: Identifies and apprehends aliens who are subject to
removal from the country, detains these individuals when necessary,
and removes illegal aliens from the United States;
Overstay responsibilities:
* Contributes indirectly to overstay investigation and enforcement
efforts through various programs, such as (1) the Criminal Alien
Program, (2) the Fugitive Operations Support Center, (3) Secure
Communities, and (4) the 287(g) program[A];
* Responsible for the removal of deportable aliens from the United
States.
Federal agency: USCIS;
Overall role: Adjudicates applications and petitions for immigration
and citizenship benefits, including applications for nonimmigrant
benefits and statuses;
Overstay responsibilities:
* Adjudicates immigration benefit petitions, which if pending or
approved, may preclude individuals from being classified as overstays.
Federal agency: State Department Bureau of Consular Affairs;
Overall role: Adjudicates visa applications to determine if an
individual is required to obtain or is eligible for a visa, and if so,
issuing a visa;
Overstay responsibilities:
* Responsible for ensuring that visas are issued in accordance with
applicable overstay laws. For instance, overstay violations may make
an applicant ineligible for a visa.
Source: GAO analysis of DHS and State Department information.
[A] The Criminal Alien Program identifies, processes, and removes
criminal aliens incarcerated throughout the United States, focusing on
those that pose a risk to public safety. The Fugitive Operations
Support Center operates under the National Fugitive Operations Program
and reviews and monitors certain overstay leads generated by CTCEU to
determine if any pertain to individuals that are fugitives or that
become fugitives. Secure Communities is an initiative to modernize the
criminal alien enforcement process, including the improvement of
information sharing between federal agencies and state and local law
enforcement agencies. The 287(g) program allows state and local law
enforcement agencies to enter into a partnership with ICE in order to
receive delegated authority for immigration enforcement within their
jurisdiction.
[End of table]
Federal agencies use various databases to determine whether
nonimmigrants have overstayed their authorized periods of admission to
the United States. As shown in table 3, these databases provide
information on foreign nationals' arrival to and departure from the
United States, foreign nationals' applications to change status once
in the United States, and the status of foreign students.
Table 3: Key Federal Databases Used for Identifying Overstays:
Database: Arrival and Departure Identification System;
Agency responsible for managing the database: US-VISIT;
Information maintained in the database related to overstays:
Nonimmigrant arrival and departure information, the date until which
an individual may remain in the United States, and various other
information (e.g., the address where the individual will reside in the
United States).
Database: Automated Biometric Identification System;
Agency responsible for managing the database: US-VISIT;
Information maintained in the database related to overstays: Biometric
information collected from nonimmigrants upon their entry into the
United States (i.e., fingerprints and photographs).
Database: TECS;
Agency responsible for managing the database: CBP;
Information maintained in the database related to overstays: Used at
POEs to verify traveler information and contains lookouts--electronic
alerts--for certain individuals (e.g., overstays). TECS also
interfaces with other agencies' databases to share this information.
Database: Student and Exchange Visitor Information System;
Agency responsible for managing the database: ICE;
Information maintained in the database related to overstays:
Immigration status information for nonimmigrant foreign students and
exchange visitors.
Database: National Security Entry-Exit Registration System;
Agency responsible for managing the database: ICE;
Information maintained in the database related to overstays: Arrival,
departure, and other information on nonimmigrants who are required to
register with immigration authorities either at a POE or at a
designated ICE office; for national security reasons.
Database: Computer-Linked Application Information Management System 3;
Agency responsible for managing the database: USCIS;
Information maintained in the database related to overstays: Status of
foreign nationals' petitions for extensions of stay or changes of
immigration status (e.g., to convert from a tourist to a student).
Source: GAO analysis of DHS information.
[End of table]
Federal Agencies Take Actions against a Small Portion of the Estimated
Overstay Population, but Strengthening Prioritization and Assessment
of Overstay Efforts Could Improve Enforcement:
ICE CTCEU is the primary federal entity responsible for taking
enforcement action to address in-country overstays, but it
investigates and arrests a small portion of the estimated in-country
overstay population due to, among other things, ICE's competing
priorities. While ICE reports allocating a small percentage of its
resources to overstay investigations since fiscal year 2006, the
agency has expressed an intention to augment the resources it
dedicates to overstay enforcement efforts moving forward. Currently,
CTCEU prioritizes in-country overstay leads based on various factors
that consider the potential risks overstays may pose to national
security and public safety, and field offices investigate those leads
that CTCEU identified as a priority. CTCEU has not yet established
mechanisms for assessing its performance in meeting program goals. In
addition to ICE's overstay enforcement activities, State Department
and CBP also take action to prevent out-of-country overstays from
returning to the United States and to deny nonimmigrant visas to
potential intending immigrants.
ICE Investigates Few In-Country Overstays, but Its Efforts Could
Benefit from Improved Planning and Performance Management:
CTCEU Efforts Result in Enforcement Action against a Small Portion of
the Estimated In-Country Overstay Population:
ICE CTCEU is the primary federal entity responsible for taking
enforcement action to address in-country overstays, but it
investigates and arrests a small portion of the estimated in-country
overstay population. CTCEU identifies leads for overstay cases; takes
steps to verify the accuracy of the leads it identifies by, for
example, checking leads against multiple databases; and prioritizes
leads to focus on those the unit identifies as being most likely to
pose a threat to national security or public safety. CTCEU then
requires field offices to initiate investigations on all priority,
high-risk leads it identifies. For example, in 2009 CTCEU identified a
suspected overstay from the United Kingdom who, intelligence
indicated, may have been a suspected terrorist. CTCEU referred this
overstay lead to a field office for investigation, which resulted in
an arrest of the suspected overstay in August 2010. According to CTCEU
data, as of October 2010, ICE field offices had closed about 34,700
overstay investigations that CTCEU headquarters assigned to them from
fiscal year 2004 through 2010.[Footnote 27] These cases resulted in
approximately 8,100 arrests, relative to a total estimated overstay
population of 4 million to 5.5 million.[Footnote 28] Although the
percentage of CTCEU overstay investigations that resulted in arrest
varied by the fiscal year in which they were initiated, Homeland
Security Investigations field offices arrested from 20 to 27 percent
of nonimmigrant overstays who were subjects of those investigations,
as shown in figure 2.
Figure 2: Percentage of Closed CTCEU In-Country Overstay
Investigations Resulting in Arrest (as of Oct. 2010):
[Refer to PDF for image: stacked vertical bar graph]
Fiscal year investigation assigned: 2004;
CTCEU overstay investigations not resulting in arrest: 5,900 (80%);
Arrest: 1,509 (20)%.
Fiscal year investigation assigned: 2005;
CTCEU overstay investigations not resulting in arrest: 3,297 (73%);
Arrest: 1,192 (27)%.
Fiscal year investigation assigned: 2006;
CTCEU overstay investigations not resulting in arrest: 3,114 (73%);
Arrest: 1,180 (27)%.
Fiscal year investigation assigned: 2007;
CTCEU overstay investigations not resulting in arrest: 4,446 (79%);
Arrest: 1,209 (21)%.
Fiscal year investigation assigned: 2008;
CTCEU overstay investigations not resulting in arrest: 3,712 (79%);
Arrest: 975 (21)%.
Fiscal year investigation assigned: 2009;
CTCEU overstay investigations not resulting in arrest: 4,282 (76%);
Arrest: 1,331 (24)%.
Fiscal year investigation assigned: 2010[A];
CTCEU overstay investigations not resulting in arrest: 1,922 (74%);
Arrest: 674 (26)%.
Source: GAO analysis of CTCEU data.
[A] According to CTCEU officials, fewer cases that were initiated in
fiscal year 2010 have been closed relative to other years because a
case that is assigned to a field office by CTCEU headquarters during
one fiscal year may not be closed until a subsequent fiscal year. As
such, field offices are working to close overstay cases that CTCEU
assigned to them in fiscal year 2010. According to CTCEU data, as of
October 2010, approximately 4,000 overstay investigations assigned to
field offices from fiscal year 2004 through 2010 had not yet been
closed by field offices.
Note: Data presented in this table include outcomes of CTCEU
investigations of suspected visa overstays, VWP overstays, National
Security Entry-Exit Registration System overstays, and out-of-status
students. These data do not include overstays arrested through ERO
programs. ERO personnel may encounter overstays in the course of their
work but they do not directly focus on overstay enforcement.
[End of figure]
In addition to overstay investigations that CTCEU headquarters assigns
to ICE field offices, the offices can open their own overstay
investigations. For example, CTCEU agents at all six field offices we
visited stated that their offices have initiated their own overstay
investigations. Also, ICE agents may encounter and arrest overstays
during investigations they conduct through ICE's other investigative
programs, such as worksite enforcement. Because ICE codes these
investigations differently in its information systems, they are not
included in the arrest data in figure 2.
CTCEU overstay investigations that do not lead to an arrest result in
one of three outcomes: (1) evidence is uncovered indicating that the
suspected overstay has departed the United States; (2) evidence is
uncovered indicating that the subject of the investigation is in-
status (e.g., the subject filed a timely application with USCIS to
change his or her status and/or extend his or her authorized period of
admission in the United States); or (3) CTCEU investigators exhaust
all investigative leads and cannot locate the suspected overstay.
[Footnote 29] Of the approximately 34,700 overstay investigations
assigned by CTCEU headquarters that ICE field offices closed from
fiscal year 2004 through 2010, about 8,100 (or 23 percent) resulted in
arrest and about 26,700 (or 77 percent) resulted in one of these three
outcomes.[Footnote 30] Among these approximately 26,700 cases, 31
percent resulted in a departure finding; 32 percent in an in-status
finding; and 37 percent in all leads being exhausted, as presented in
figure 3.
Figure 3: Fiscal Years 2004-2010 Outcomes of CTCEU Overstay Cases Not
Resulting in Arrest:
[Refer to PDF for image: pie-chart]
Departed, individual has departed the United States: 31% (8,2000);
In-status, individual filed a timely application to adjust their
authorized admission into the United States: 32% (8,600);
All leads exhausted, despite taking investigative steps agents cannot
locate individual: 37% (9,900).
Source: GAO analysis of CTCEU data.
Note: Data presented in this table include outcomes of CTCEU
investigations of suspected visa overstays, VWP overstays, National
Security Entry-Exit Registration System overstays, and out-of-status
students.
[End of figure]
ICE officials attribute the significant portion of overstay cases that
result in a departure finding, in-status finding, or with all leads
being exhausted generally to three issues: difficulties associated
with locating suspected overstays, data timeliness, and data
completeness.
* Difficulties locating suspected overstays. ICE agents reported
locating suspected overstays as challenging because the address ICE
has on file for a suspect may be outdated or inaccurate, and if ICE
agents are unable to locate the suspect after taking recommended
investigative steps, they will close the case with an all leads
exhausted outcome. CTCEU agents in two of the six offices we visited
identified locating suspected overstays as the most challenging aspect
of conducting overstay investigations. They explained that, although
CTCEU headquarters only assigns investigations to field offices if
there is a last known address for the subject, the subject may have
moved to a new address or have never resided there in the first place.
For example, the address available to CTCEU agents may be the one that
the nonimmigrant provided on his or her Form I-94/I-94W when he or she
was admitted to the United States, and the nonimmigrant may have
subsequently moved.[Footnote 31] Prior to closing a case and reporting
that all leads have been exhausted, CTCEU recommends that agents
perform several steps to try to obtain additional leads for the case,
including contacting relatives or other known associates, searching
Internet sites (e.g., Google and Facebook), and contacting other law
enforcement agencies. If an agent performs such steps and still cannot
identify a valid address for a suspected overstay, the case will be
closed with an outcome of all leads exhausted. These cases are
subsequently monitored by a system that automatically queries various
databases, such as Lexis-Nexis, on a weekly basis for new information
relating to the location of the suspected overstay. If such
information is identified, CTCEU will reopen the investigation.
* Data timeliness. With regard to data timeliness, new information may
be entered in DHS systems between the time CTCEU headquarters assigns
an investigation to a field office and the time that the office
undertakes the investigation that permits the field office to close
the investigation. CTCEU agents in four of the six field offices we
visited told us that additional data entered in this manner
contributes to the frequency with which they close cases with a
departure or in-status finding. For example, when a CTCEU headquarters
analyst reviews an overstay lead, the analyst is to check USCIS
electronic information systems to see if the suspected overstay has
filed a benefit application with USCIS that places him or her in-
status. Although the suspected overstay may have done so, the
application may not yet appear in USCIS's systems because the agency
is still processing it and has not posted its receipt. When a field
office agent opens an investigation, the first task the agent is to
perform is to check DHS information systems for any new information
related to the suspected overstay under investigation. If USCIS has
subsequently posted that the suspected overstay has a pending
application in its systems, the field office agent may see this
information, determine that the suspected overstay under investigation
is in-status, and close the investigation with an in-status outcome.
* Data completeness. Incomplete data in DHS systems contribute to
investigations resulting in departure findings when ICE field agents
uncover evidence that the subject of a CTCEU investigation departed
even though DHS systems contain no record of their departure. CTCEU
agents in four of the six offices we visited cited missing departure
data as a cause of cases resulting in a departure finding. For
example, if the suspected overstay under investigation exited the
United States through a land POE and did not submit an I-94/I-94W form
to record his or her departure, there will be no indication in DHS
systems that the suspected overstay has left the country, and CTCEU
may open an investigation of the individual. Through ensuing
investigative efforts, such as attempting to contact the suspected
overstay by telephone or electronic mail, or asking Canadian
authorities to review their records to determine if the suspected
overstay entered Canada, CTCEU field agents may secure evidence that
the suspected overstay has departed the United States and close the
investigation accordingly.[Footnote 32]
In addition to CTCEU investigative efforts, other ICE programs within
ERO may take enforcement action against overstays, though none of
these programs solely or directly focus on overstay enforcement. For
example, if the ERO Criminal Alien Program identifies a criminal alien
who poses a threat to public safety and is also an overstay, the
program may detain and remove that criminal alien from the United
States. Further, ERO's National Fugitive Operations Program may
undertake efforts to locate a nonimmigrant who was ordered removed
based on various immigration violations, including an overstay
violation, but did not surrender for removal. ERO cannot reliably
quantify the results of its in-country overstay enforcement efforts
because in its case management system, ERO does not separately track
overstay cases. Rather, ERO's cases are coded by the section of law
that the subject violated, and these sections apply to violations that
are broader than exclusively overstay violations. For example, 8
U.S.C. § 1227(a)(1)(C)(i) makes any alien who has failed to maintain
or comply with the conditions of his or her nonimmigrant status
deportable. In addition to overstay violations, this could include
remaining in the United States while no longer working as a foreign
diplomat, religious worker, or temporary agricultural worker, among
other possible violations. ERO officials told us that ERO plans to
develop metrics for tracking the results of its in-country overstay
enforcement efforts, pending the outcome of an ongoing internal ICE
review of whether to shift more overstay enforcement responsibilities
to ERO in the future.
ICE Allocates a Small Percentage of Resources to Overstay Enforcement,
but Plans to Augment Overstay Enforcement Resources:
ICE has reported allocating a small percentage of its resources in
terms of investigative work hours to overstay investigations since
fiscal year 2006, but the agency has expressed an intention to augment
the resources it dedicates to overstay enforcement efforts moving
forward. According to DHS, ICE received approximately $1.7 billion in
funding and about 8,000 full time equivalent positions in fiscal year
2010 for domestic investigations, which include overstay
investigations.[Footnote 33] From fiscal years 2006 through 2010, ICE
reported devoting from 3.1 to 3.4 percent of its total field office
investigative hours to CTCEU overstay investigations, as shown in
figure 4.
Figure 4: ICE Reported Percentage of Field Office Investigative Hours
Dedicated to Overstay Cases:
[Refer to PDF for image: stacked vertical bar graph]
Hours in millions:
Fiscal year: 2006;
Field office investigative hours dedicated to other categories of
investigations: 7,587 (96.7%);
Field office investigative hours dedicated to overstay cases: 261
(3.3%).
Fiscal year: 2007;
Field office investigative hours dedicated to other categories of
investigations: 7,748 (96.9%);
Field office investigative hours dedicated to overstay cases: 248
(3.1%).
Fiscal year: 2008;
Field office investigative hours dedicated to other categories of
investigations: 8,076 (96.6%);
Field office investigative hours dedicated to overstay cases: 285
(3.4%).
Fiscal year: 2009;
Field office investigative hours dedicated to other categories of
investigations: 8,138 (96.6%);
Field office investigative hours dedicated to overstay cases:
282(3.4%).
Fiscal year: 2010;
Field office investigative hours dedicated to other categories of
investigations: 8,864 (96.7%);
Field office investigative hours dedicated to overstay cases: 304
(3.3%).
Source: GAO analysis of ICE data.
Note: These data do not include ERO work hours, which may include some
hours spent taking enforcement actions to address overstays. These
data also do not include hours related to administrative activities
associated with ICE investigations.
[End of figure]
In addition to CTCEU investigative efforts, other ICE programs within
ERO may dedicate resources to overstay enforcement, such as ERO's
Criminal Alien Program and National Fugitive Operations Program.
According to ERO officials, because overstay enforcement is not a
specific focus of any of ERO's programs, ERO does not track the number
of work hours it dedicates to enforcement actions pertaining to
overstays, but intends to do so if it is assigned additional overstay
enforcement responsibilities as a result of ICE's ongoing internal
review.
ICE attributes the small percentage of investigative resources it
reports allocating to overstay enforcement efforts primarily to
competing enforcement priorities. According to the ICE Assistant
Secretary, ICE has resources to remove 400,000 aliens per year, or
less than 4 percent of the estimated removable alien population in the
United States. In light of the large number of immigration violators
the agency is responsible for addressing and its finite enforcement
resources, in June 2010, the Assistant Secretary stated that ICE must
prioritize the use of its resources to ensure that its efforts to
remove aliens reflect the agency's highest priorities, namely
nonimmigrants, including suspected overstays, who are identified as
high risk in terms of being most likely to pose a risk to national
security or public safety. In addition, the Assistant Secretary stated
that the level of resources ICE dedicates to overstay enforcement
efforts reflects the distribution of its resources among its competing
enforcement requirements. As a result, ICE dedicates its limited
resources to addressing overstays it identifies as most likely to pose
a potential threat to national security or public safety and does not
generally allocate resources to address suspected overstays that it
assesses as non-criminal and low risk.
ICE has indicated it may allocate more resources to overstay
enforcement efforts moving forward, and that it plans to focus
primarily on suspected overstays who ICE has identified as high risk
or who have recently overstayed their authorized periods of admission.
For example, the ICE Strategic Plan Fiscal Year 2010-2014 states that
the agency plans to invest more resources to identify and remove
aliens soon after they overstay in those fiscal years. Further,
according to ICE's Assistant Deputy Director, ICE intends to put more
resources towards identifying and removing aliens who were admitted to
the United States in the current fiscal year and overstayed their
authorized period of admission than aliens who entered the country 10
years ago and overstayed. This official explained that ICE prioritizes
recent overstays in part because they have generally established fewer
ties in U.S. communities, and as a result, are more likely to be
eligible for removal under law. However, regardless of the length of
time a nonimmigrant has overstayed in the United States, ICE can take
enforcement action against the overstay, including in cases when ICE
encounters an overstay through other investigative programs or
efforts, according to this official. In addition, the Assistant
Secretary of ICE stated in March 2010 that it is imperative to expand
the nation's enforcement efforts concerning overstays and other status
violations, and ICE is reviewing its policies, programs, and
procedures concerning overstays.
According to senior ICE officials, as of January 2011, ICE is
considering expanding ERO's overstay enforcement role by proposing the
development of teams of officers within ERO dedicated specifically to
enforcement action against civil (non-criminal) overstays and
transferring some or all CTCEU overstay programming from Homeland
Security Investigations to ERO. According to senior ERO officials, ICE
senior management is reviewing an ERO proposal to create 5 to 7 teams
of about 16 officers each devoted exclusively to overstay enforcement.
According to ICE's Assistant Deputy Director, ICE and DHS management
concur with this proposal and are considering requesting additional
funds to support these teams in a future budget request.[Footnote 34]
According to ERO officials, these teams would be located in the
largest U.S. tourist destinations, such as New York and Los Angeles,
and would each be projected to close approximately 600 cases per year.
Although it is too early to tell what impact, if any, ICE's plans for
allocating additional resources would have on the results of its
overstay enforcement activities, the creation of ERO teams dedicated
to taking enforcement action against overstays would represent an
expansion of ICE's overstay enforcement efforts. In addition, ERO
officials told us that ICE is considering transferring at least part
of CTCEU's efforts for addressing overstays from Homeland Security
Investigations to ERO, although no decision has been reached.
According to ICE's Assistant Deputy Director, it is ICE's intention
for ERO to focus on civil immigration enforcement and Homeland
Security Investigations to focus on taking enforcement actions to
address criminal violators and violators who pose a threat to national
security; as overstaying is a civil violation, civil overstay
enforcement falls within ERO's area of responsibility.
As an intermediate step, in the summer of 2010, CTCEU began to provide
all overstay leads it identified as low risk in terms of posing a
threat to national security or public safety to the ERO Criminal Alien
Program. However, according to the Acting Unit Chief, the Criminal
Alien Program does not have sufficient resources to investigate these
leads, and the program is still in the process of determining how to
most efficiently and effectively utilize its resources to address
civil, low-risk overstay violators. According to senior ERO officials,
although there has been discussion within ICE about augmenting ERO
resources for investigating overstays through programs such as the
Criminal Alien Program, no specific plans for doing so have been
established.
According to ERO officials, ERO does not plan to assume responsibility
for a portion of civil overstay enforcement until ICE assesses the
funding and resources that doing so would require. ERO officials
stated that ERO and Homeland Security Investigations have begun to
assess these requirements but have not established a time frame for
completing this assessment because ICE is considering transferring
some overstay programming from CTCEU to ERO concurrently with
considering the transfer of other Homeland Security Investigations
functions to ERO. Program management standards state that successful
execution of any program includes developing plans that include a time
line for program deliverables. By developing a time frame for
completing a resource and funding assessment and utilizing the
assessment findings, as appropriate, ICE would be better positioned to
hold its staff accountable for completion of efforts as management
intended, thereby strengthening its planning efforts for executing its
overstay enforcement activities moving forward.
CTCEU Considers Various Risk-Based Factors in Prioritizing Its
Overstay Leads:
CTCEU prioritizes investigation of in-country overstay leads based on
the perceived risk each lead is likely to pose to national security
and public safety as determined by threat analysis. CTCEU
investigations focus on suspected overstays it identifies as most
likely to engage in activities that may pose a threat to national
security or public safety. In order to prioritize investigation of
overstay leads, CTCEU uses an automated system to assign each overstay
lead a priority ranking based on threat intelligence information. The
specific criteria CTCEU uses to rank the priority level of leads are
determined tri-annually based on current threat information by the
Compliance Enforcement Advisory Panel, an interagency panel of
intelligence experts assembled by ICE for the purpose of determining
these criteria.[Footnote 35] Although the threat-related criteria
identified by the Compliance Enforcement Advisory Panel and used by
CTCEU to prioritize overstay investigations are not publicly
available, they center on country of birth, age, and gender. For
example, CTCEU may assign all females within a specific age range who
were born in a particular country the same priority ranking. In
addition, if other threat information indicates that an individual or
group of suspected overstays that do not fit within the specific
criteria determined by the Compliance Enforcement Advisory Panel are
high risk for engaging in activity that may pose a threat to national
security or public safety, CTCEU will assign them as high priority for
investigation. For example, upon receiving intelligence indicating
that a suspected VWP overstay who did not fit within CTCEU's priority
criteria was wanted by Argentinean authorities for drug smuggling,
CTCEU prioritized the case for investigation. If a review by CTCEU
analysts indicates that there is sufficient information associated
with a priority lead (e.g., an address for the alien in question) to
make it viable for investigation, CTCEU assigns the lead to a field
office for mandatory investigation.
CTCEU Could Benefit from Establishing Mechanisms for Assessing
Performance to Address Overstays:
CTCEU has not yet established mechanisms for assessing its performance
in meeting program goals. We have previously reported that leading
organizations promote accountability by establishing results-oriented,
outcome goals and corresponding performance measures by which to gauge
progress.[Footnote 36] In addition, Standards for Internal Control in
the Federal Government and the Office of Management and Budget call
for agencies to have performance measures and indicators that are
linked to mission, goals, and objectives to allow for comparisons to
be made among different sets of data so that corrective actions can be
taken if necessary. Measuring performance allows organizations to
track the progress they are making toward their goals and gives
managers critical information on which to base decisions for improving
their progress. According to DHS training materials, information and
data gathered from performance measurement is in part to be used to
plan for future resource allocations, to better manage programs, and
to communicate to stakeholders the value the program is delivering.
Although CTCEU has established an output program goal and target and
tracks various performance measures, it does not have a mechanism in
place to assess the outcomes of its efforts, particularly the extent
to which the program is meeting its mission as it relates to
overstays--to prevent terrorists and other criminals from exploiting
the nation's immigration system.[Footnote 37] CTCEU's program goal is
to prevent criminals and terrorists from exploiting the immigration
system by proactively developing cases for investigation, and its
performance target is to send 100 percent of verified priority leads
to field offices as cases.[Footnote 38] CTCEU also tracks a variety of
output measures, such as the number of cases completed and their
associated results (i.e., arrested, departed, in-status, or all leads
exhausted) and average hours spent to complete an investigation. While
CTCEU's performance target permits it to assess an output internal to
the program--the percentage of verified priority leads it sends to
field offices for investigation--it does not provide program officials
with a means to assess the impact of the program in terms of
preventing terrorists and other criminals from exploiting the
immigration system. According to senior CTCEU officials, the unit
measures its progress against an output performance goal and target
because the unit has not identified a means by which to measure
program outcomes. Specifically, the unit has not identified any means
to assess CTCEU's progress in meeting its mission other than to point
out retroactively whether or not terrorists or criminals have
exploited the nation's visa programs. If no status violators,
including overstays, attack the United States or otherwise compromise
homeland security, officials stated that they view this as an
indication that the unit is performing well. However, CTCEU cannot
directly attribute the fact that no overstays have attacked or
compromised U.S. homeland security to its overstay enforcement
efforts, as various other factors could affect or contribute to this
outcome.
We and the Office of Management and Budget have acknowledged the
difficulty in developing outcome measures for programs that aim to
deter or prevent specific behaviors, and have reported that in such an
instance proxy measures--or indirect indicators--should be designed to
assess the effectiveness of program functions.[Footnote 39] CTCEU
officials agreed that the use of proxy measures with associated
performance targets could better enable the unit to gauge its
performance in meeting its mission and to measure the effectiveness of
its overstay enforcement efforts. For example, a proxy measure for
CTCEU could be the number of cases resulting in all leads exhausted
per investigative hours worked, and the target could be to have fewer
than an established number of cases per investigative hours worked
result in this outcome. By undertaking efforts to develop performance
goals and targets for outcome-oriented measures--or proxy measures if
program outcomes cannot be captured--CTCEU could be positioned to
track its performance in meeting its mission. This performance
information, in turn, could provide CTCEU managers with information on
which to base decisions for improving its efforts and performance to
prevent terrorists and other criminals from exploiting the nation's
immigration system.
The State Department and CBP Have Taken Action to Prevent Ineligible
Out-of-Country Overstays from Returning to the United States:
In addition to ICE's activities, the State Department and CBP have
taken action to prevent ineligible out-of-country overstays from
returning to the United States, and the State Department also has
acted to deny nonimmigrant visas to potential intending immigrants. In
general, foreign nationals who have departed the United States after
having remained in the country beyond their authorized periods of
admission are ineligible to return to the United States for 3 years if
they overstayed by 181-364 days, and 10 years if they overstayed by
365 or more days. The State Department and CBP are responsible for,
respectively, preventing ineligible violators from obtaining a new
visa or being admitted to the country at a POE.
According to State Department data, the department denied about 52,800
nonimmigrant visa applications and about 114,200 immigrant visa
applications from fiscal year 2005 through fiscal year 2010 due, at
least in part, to applicants having previously been unlawfully present
in the United States for more than 180 days, according to statute.
[Footnote 40] These numbers equate to, on average, approximately 8,800
nonimmigrant visa refusals and 19,000 immigrant visa refusals per year
from fiscal year 2005 through 2010.[Footnote 41] According to State
Department officials, although a small portion of these refusals refer
to actions taken against people that illegally entered the United
States without inspection or unlawfully remained in the country after
having their status terminated, most of these visa refusals were due
to applicants having overstayed their authorized periods of admission
to the United States by more than 180 days.[Footnote 42] Similarly,
CBP reported that it refused admission to about 5,000 foreign
nationals applying for admission to the United States from fiscal year
2005 through 2010 (an average of about 830 per year) specifically due
to the applicants' previous status as unlawfully present in the United
States for more than 180 days.[Footnote 43] The State Department may
also deny applications for nonimmigrant visas if there is reason to
suspect that the applicants do not intend to abide by the terms of the
visas and are likely to remain in the United States beyond their
authorized periods of admission. In effect, by denying intending
immigrants nonimmigrant visas the State Department is acting to
prevent these nonimmigrants from having the opportunity to overstay
were they to be admitted to the United States.[Footnote 44] Although
the manner in which the State Department tracks nonimmigrant visa
refusal data does not allow it to isolate the number of refusals
specifically targeting intending immigrants, State Department
officials reported that this is a common reason for nonimmigrant visa
applications to be refused.
More Reliable, Accessible Data Could Improve DHS's Efforts to Identify
and Share Information on Overstays:
In the absence of a comprehensive biometric entry and exit system for
identifying overstays DHS relies on two components--US-VISIT and
CTCEU--to identify overstays primarily through analysis of biographic
information. However, DHS's efforts to identify and report on
overstays are hindered by unreliable data. Further, DHS has
established a variety of mechanisms, such as overstay lookouts, or
electronic alerts, to share information pertaining to overstays with
its components and with federal, state, and local agencies that may
encounter overstays as part of their law enforcement or other
activities. DHS creates lookouts for certain categories of overstays,
and expanding the categories of overstays assigned these lookouts
could help improve CBP's ability to determine if these nonimmigrants
should be re-admitted to the United States. Additionally, while CBP
officers at POEs have reported facing challenges in obtaining
information from USCIS to help make admissibility decisions regarding
suspected overstays, USCIS has long-term plans to help address these
challenges.
Improved Data Reliability Could Strengthen DHS Processes to Identify
Overstays:
DHS Identifies Overstays Primarily Based on Biographic Entry and Exit
Data:
In the absence of a comprehensive biometric entry and exit system for
identifying and tracking overstays, US-VISIT and CTCEU primarily
analyze biographic entry and exit data collected at land, air, and sea
POEs to identify overstays. US-VISIT identifies both in-country and
out-of-country overstays by analyzing biographic data maintained in
the Arrival and Departure Information System--a database that contains
information on aliens' entry, exit, and change of status--and
electronically and manually comparing Arrival and Departure
Information System records to information in other databases to find
matches that demonstrate that a nonimmigrant may have, for instance,
departed the country or filed an application to change status and thus
is not an overstay (see figure 5). For cases in which US-VISIT's
analysis shows that a nonimmigrant may be an in-country overstay, DHS
sends the lead to CTCEU for further analysis and possible
investigation. For cases in which US-VISIT's analysis shows that a
nonimmigrant visa holder departed the United States--an out-of-country
overstay--but the departure was more than 90 days after the
nonimmigrant's authorized period of admission expired, US-VISIT
creates a lookout that CBP officers at POEs and State Department
officials at overseas consulates can access to determine whether that
nonimmigrant is eligible for re-admission at POEs or can receive a new
visa upon application at a U.S. consulate. Appendix II provides more
detailed information on US-VISIT's processes for analyzing in-country
and out-of-country overstay leads.
Figure 5: US-VISIT Review Process for Identifying In-Country Overstay
Leads:
[Refer to PDF for image: illustration]
Arrival and Departure Information System Search:
Overstay Search: In-country overstay report run through Arrival and
Departure Information System.
Automated Search:
Matching Process:
1. Reverse name search in Arrival and Departure Information System
database.
2. Search for additional immigration benefit application information
in USCIS database.
3. Search for additional departure records in CBP database.
Prioritized Search:
Record Selection: Removal of non-priority records.
Manual Search:
Manual Search By Analyst:
1. Re-search through all relevant US-VISIT databases.
2. Re-search for departure through CBP information.
3. Re-search for benefit applications.
4. Search for student compliance status.
5. Search for criminal apprehension.
6. Search through consular data to determine status.
7. Search for record of deportation.
8. Search for refugee or asylum status.
Automated Search and Manual Search:
If lead records are matched then they are closed.
Sent to CTCEU:
No matching record is found:
Lead records sent to CTCEU for verification.
Source: GAO analysis of US-VISIT information; and Art Explosion
(clipart).
[End of figure]
In addition to US-VISIT's process for identifying in-country and out-
of-country overstays, CTCEU conducts its own analysis to identify in-
country overstays. Specifically, CTCEU analyzes (1) in-country visa
overstay leads provided by US-VISIT, (2) in-country VWP overstay leads
provided by US-VISIT, (3) out-of-status students based on Student and
Exchange Visitor Information System data, and (4) overstay leads based
on National Security Entry-Exit Registration System data. CTCEU refers
viable leads--that is, leads for which CTCEU can identify a last known
address--to ICE Homeland Security Investigations field offices for
investigation, as shown in figure 6. CTCEU analysts conduct automated
and manual checks to compare leads from the four sources against
records in other databases that contain information on, for example,
nonimmigrants' applications to change status, to determine whether
nonimmigrants have overstayed and are likely still present in the
United States.[Footnote 45] As shown in figure 6, the majority of
leads from fiscal years 2004 through 2010 were closed through
automated and manual checks, meaning that the nonimmigrants were found
to have departed the United States or were determined to be in status.
After the completion of manual checks, about 3 percent of leads were
considered to be priority with viable addresses and sent to ICE field
offices for investigation from fiscal years 2004 through 2010.
Appendix II provides more detailed information on CTCEU's process for
analyzing overstay leads.
Figure 6: CTCEU Processing of Overstay Leads from Fiscal Years 2004-
2010:
[Refer to PDF for image: illustration]
US-VISIT visa overstays:
US-VISIT VWP overstays:
Student & Exchange Visitor Information System out of status students:
National Security Entry-Exit Registration System overstays:
CTCEU import of data from above sources.
Leads sent through automated review.
Leads prioritized by perceived risk based on threat information
(1,373,000).
Automated matched leads are closed (484,000);
Leads determined to be non-priority sent to ERO (279,000;
Leads determined to be priority that are not matched through automated
review are manually reviewed:
* Manually matched leads are closed (560,000);
* Leads not matched but determined to be viable are assigned to field
offices for investigation (39,000);
* Manually reviewed, non-viable leads are sent to a contractor for
continual monitoring (13,000).
Source: GAO analysis of CTCEU data.
Note: Leads do not total 1,373,000 because CTCEU revised its
procedures for sending leads for continual monitoring in fiscal year
2009, which resulted in these leads being double-counted in CTCEU's
data system as both closed and continually monitored.
[End of figure]
Unreliable Data Hinder DHS Efforts to Identify Overstays and Report
Overstay Rate Information to Congress and other Stakeholders:
DHS's efforts to identify and report on overstays are hindered by
unreliable data. Specifically, we identified four main challenges DHS
faces in identifying overstays: (1) incomplete collection of departure
data at POEs, (2) Student and Exchange Visitor Information System
database limitations, (3) lack of mechanisms for assessing the quality
of leads that CTCEU sends to the field offices for investigation, and
(4) US-VISIT's backlog in analyzing potential overstay leads.
Unreliable Collection of Departure Data at POEs:
Without a comprehensive biometric entry and exit system, DHS relies on
biographic information that nonimmigrants provide to CBP when entering
and exiting the United States, including information on I-94/I-94W
arrival and departure forms. CBP faces two challenges in collecting
accurate and complete biographic information from nonimmigrants
departing the United States through land POEs. First, CBP requires
nonimmigrants leaving the United States through land POEs to remit
their I-94/I-94W arrival and departure forms to record their exit if
they do not plan to return within 30 days. However, CBP does not
inspect travelers exiting the United States through land POEs,
including collecting their biometric information, and CBP does not
have a consistent mechanism in place at land POEs to provide
nonimmigrants with the means to turn in these forms.[Footnote 46]
Nonimmigrants departing the United States through land POEs turn in
their I-94/I-94W forms on their own initiative. According to CBP
officials, at some POEs, CBP provides a box for nonimmigrants to drop
off their I-94/I-94W forms, while at other POEs departing
nonimmigrants may park their cars, enter the POE facility, and provide
their forms to a CBP officer. Remitting these forms represents the
only method for recording that nonimmigrants left the country if they
exit via a land POE. If departing nonimmigrants do not take the
initiative to turn in their forms, DHS does not have complete
information that the nonimmigrants departed the United States,
hindering DHS's efforts to determine whether those nonimmigrants were
overstays. Second, CBP faces challenges in ensuring the accuracy of
the I-94/I-94W forms that nonimmigrants submit when departing through
land POEs. In particular, at two of three land POEs we visited, CBP
officials told us that there have been instances in which an
individual other than the person listed on the I-94/I-94W form
remitted the form to CBP. In such a case, CBP cannot be sure whether
the nonimmigrant listed on the I-94/I-94W form actually departed the
United States, as someone else turned in his or her form. As a result
of these challenges, DHS faces difficulties in determining whether
nonimmigrants have actually departed the United States through land
POEs and identifying whether they overstayed their authorized periods
of admission.
Internal control standards call for agencies to develop control
activities to help ensure that data are completely and accurately
recorded.[Footnote 47] CBP officials at two land POEs we visited
stated that because of the configuration of some land POEs--such as
there being only one lane to accommodate all automobile traffic
exiting the United States--establishing a mechanism for collecting I-
94/I-94W forms at these areas could greatly impede the flow of
traffic. The CBP Director for Traveler Entry Programs stated that
establishing a national policy for collecting I-94/I-94W forms at land
borders could yield benefits, including to help DHS more reliably
identify overstays, but would need to be weighed against costs, such
as determining the indirect cost for travelers to stop in line to turn
in I-94/I-94W forms and the potential impact on Canadian and Mexican
border crossing processes, which relate to CBP's current border
crossing procedures. This official also noted that the submission of
these forms would not ensure the accuracy of the biographical
information collected from nonimmigrants departing through land POEs
because nonimmigrants could still fraudulently remit I-94/I-94W forms
that belong to others. From August 2005 to November 2006, CBP studied
the feasibility of using radio frequency technology to record
biographic departure information from I-94/I-94W forms at land POEs.
Through tests of this technology, CBP determined that it was too
immature to meet the requirements of a land exit solution. While CBP
studied a technological mechanism for recording biographic departure
information at land POEs, CBP officials stated that the agency has not
studied the costs and benefits of providing a mechanism for
nonimmigrants departing the United States at land POEs to turn in
their forms, such as a drop box. In 2006, DHS released a guide to help
DHS components conduct cost-benefit analyses to identify the superior
financial solution among competing alternatives. This guide identified
cost-benefit analyses as a proven management tool for managing costs
and risks.[Footnote 48] By analyzing the costs and benefits of
developing a mechanism to provide nonimmigrants departing land POEs
with a way to turn in their I-94/I-94W forms, CBP could more
effectively determine if doing so presents a viable means for the
agency to obtain more complete departure information for identifying
overstays for possible investigation.
In addition to these challenges in collecting complete and accurate
departure information at land POEs, CBP has faced difficulties in
ensuring the accuracy of departure information collected from air and
sea POEs. Specifically, regulations require air and sea carriers to
submit electronic passenger departure manifests--containing, among
other things, the names and other identifying information of
passengers--before the airplane or vessel departs from the United
States.[Footnote 49] The regulations also specify that the carrier
collecting the manifest information is responsible for comparing the
travel document presented by the passenger with the travel document
information it is transmitting to CBP to ensure that the information
is correct, the document appears to be valid for travel purposes, and
the passenger is the person to whom the document was issued.[Footnote
50] However, carriers may elect to verify that a passenger matches the
travel document he or she presented at a check-in counter prior to the
individual entering the boarding area rather than doing so as
passengers board the airplanes or vessels, and CBP does not have a
process to perform this verification at boarding. CBP officials told
us that, as a result, the current system for verifying air and sea
departures is vulnerable to fraud. Specifically, a nonimmigrant could
fraudulently make it appear as if he or she departed when in fact the
nonimmigrant has not because another individual may have taken his or
her place on the outbound plane or vessel. For example, one
nonimmigrant could present identification when checking in to board a
plane and to go through inspection at an airport's passenger
checkpoint. However, once that nonimmigrant has passed the airport's
security checkpoint, he or she could exchange a boarding pass with
someone else and not board the plane. That nonimmigrant could then
leave the airport and the other person could use the boarding pass to
board the plane, thereby making it appear as if the nonimmigrant who
did not board the plane departed the United States, potentially posing
a homeland security risk. CBP officials stated that they could not
estimate how often or if this scenario occurs, but stated that it is a
vulnerability. As a result, CBP may not have accurate information on
nonimmigrants departing through air and sea POEs, hindering DHS's
efforts to reliably identify overstays.
In addition, we have previously reported on weaknesses in DHS
processes for collecting departure data, and how these weaknesses
impact the determination of overstay rates. The Implementing
Recommendations of the 9/11 Commission Act required that DHS certify
that a system is in place that can verify the departure of not less
than 97 percent of foreign nationals who depart through U.S. airports
in order for DHS to expand the VWP.[Footnote 51] In September 2008, we
reported that DHS's methodology for comparing arrivals and departures
for the purpose of departure verification would not inform overall or
country-specific overstay rates because DHS's methodology did not
begin with arrival records to determine if those foreign nationals
departed or remained in the United States beyond their authorized
periods of admission.[Footnote 52] Rather DHS's methodology started
with departure records and matched them to arrival records. As a
result, DHS's methodology counted overstays who left the country, but
did not identify overstays who have not departed the United States and
appear to have no intention of leaving. We recommended that DHS
explore cost-effective actions necessary to further improve, validate,
and test the reliability of overstay data. DHS reported that it is
taking steps to improve the accuracy and reliability of the overstay
data, by efforts such as continuing to audit carrier performance and
work with airlines to improve the accuracy and completeness of data
collection.
In addition, to help address these issues with the accuracy and
reliability of departure data, DHS has tested biometric methods for
positively identifying passengers before they board airplanes. For
example, CBP and the Transportation Security Administration within
DHS, conducted two test pilots for collecting biometric information
from nonimmigrants at two airports in 2009. Under the CBP pilot, CBP
officers collected biometric exit data at departure gates at Detroit
Metropolitan Wayne County Airport. Under the Transportation Security
Administration pilot, Transportation Security Administration officials
collected biometric exit data at security checkpoints at Hartsfield-
Jackson Atlanta International Airport. DHS issued an evaluation report
on these pilots in October 2009 that, among other findings, reported
that the location of officers in the CBP pilot provided a high level
of confidence of departure, as all travelers encountered the CBP
process and then had to immediately board the aircraft. As a result,
they could neither circumvent the process to board the aircraft nor
attempt to remain in the United States without raising immediate
suspicion. In August 2010, we reported on this evaluation report,
noting that the pilot data provided insight into traveler impacts,
biometric capture procedures, traveler compliance, and staffing needs,
and would support further economic analysis for an air exit solution
decision, but that the scope and approach to the pilot tests
restricted the pilots' ability to inform a decision for a long-term
air exit solution.[Footnote 53] We recommended that DHS identify
additional sources for the operational impacts of air exit not
addressed in the pilots' evaluation and incorporate these sources into
its air exit decision making and planning. DHS concurred with this
recommendation and stated that the pilots it conducted would not serve
as the sole source of information to inform its decision making.
Limitations with the Student and Exchange Visitor Information System
Database:
The Student and Exchange Visitor Information System database, which
maintains biographical and immigration status information on foreign
students and exchange visitors, has two gaps that hinder DHS efforts
to identify foreign students or exchange visitors who are out of
status for possible investigation. First, according to CTCEU
officials, the Student and Exchange Visitor Information System is not
an account-based system, meaning that it does not link all of a
nonimmigrant's records. For example, a student's activities--including
applying to several schools, being dismissed from a school, or
transferring to another school--are not linked together, making it
difficult for ICE officials to determine a student's complete school
enrollment history. Without this history, ICE officials stated that
they face challenges determining whether a student has complied with
the terms of his or her visa requirements, such as requirements for
foreign students to be continually enrolled in a school while in the
United States. Second, school officials are responsible for inputting
student status information into the Student and Exchange Visitor
Information System, and ICE officials stated that school officials may
record student biographical information incorrectly or incompletely.
For example, ICE officials told us that there have been instances of
school officials not inputting a graduation date for a student. In
such a case, if the student graduates and no longer meets the
requirements for maintaining a student visa status, ICE would not be
aware that the student is actually out of status. Further, according
to ICE officials, school officials have inputted student information
fraudulently into the Student and Exchange Visitor Information System.
Specifically, officials from four of the six ICE field offices we
visited told us they had initiated student fraud cases, including
cases in which schools were knowingly reporting that students were
fulfilling their visa requirements, such as maintaining a full course
load, when students were not attending the school or only attending
intermittently. For example, in 2008 ICE agents from the Los Angeles
field office investigated and arrested an English language school
operator who, in exchange for cash payments, assisted nonimmigrants to
fraudulently obtain student visas and reported them as enrolled in his
schools even though they were not attending classes. ICE officials
said that the agency does not have the personnel and funding resources
necessary to collect and update biographical and educational
information directly from the more than 1 million nonimmigrant
students, exchange visitors, and their dependents in the Student and
Exchange Visitor Information System rather than relying on school
officials at each institution to input this information. As a result
of these weaknesses, the Student Exchange and Visitor Information
System is vulnerable to fraud and data inaccuracies, hindering ICE's
efforts to obtain accurate student status information, identify
students who may be overstays, and refer viable leads for further
investigation by ICE field offices.
According to ICE officials, DHS is developing an updated version of
the Student and Exchange Visitor Information System, which is expected
to be implemented by the end of fiscal year 2011. Among other
improvements, the updated version is to be an account-based system,
allowing DHS to better monitor student activity. Further, ICE
officials have established a new analysis unit within the CTCEU called
the Student and Exchange Visitor Information System Exploitation
Section to help address these vulnerabilities by, for example,
analyzing Student and Exchange Visitor Information System data and
referring school fraud criminal investigation leads to field offices.
ICE officials said that because this section is new, it is too early
to tell what effect the new section will have on strengthening efforts
to identify student overstays and instances of school fraud.
Assessing the Quality of Overstay Leads:
While CTCEU has a method for collecting and tracking overstay leads it
sends to the field offices for investigation, CTCEU lacks performance
measures for assessing the quality of overstay leads it provides to
ICE field offices. CTCEU officials stated that while it does not have
performance measures associated with its analyses or identification of
overstay leads, the unit developed an internal audit program for
assessing its efforts. Under this program, CTCEU supervisors check 1
percent of leads reviewed by CTCEU analysts to determine whether
analysts correctly processed leads. Based on its audit program checks,
CTCEU reported that from November 2007 through April 2010, the unit
found 12 material errors--defined by CTCEU as leads that should have
been identified as viable for investigation but were not or conversely
should have been identified as not viable but were identified as
viable--in analysts' review and identification of about 2,200 overstay
leads. In addition, among the 2,200 overstay leads reviewed, the unit
found about 1,700 nonmaterial errors--defined as errors that did not
impact whether or not a lead was assigned to a field office for
investigation, such as analysts not correctly recording information
included in the leads, like nonimmigrants' identification numbers.
This internal audit program can help CTCEU determine the extent to
which it is correctly identifying viable overstay leads for
investigation, and according to the audit program's concept document,
is intended to help ensure that the CTCEU lead review process
functions effectively. However, this program does not help ICE assess
the extent to which the leads it identifies as viable for
investigation ultimately result in an enforcement outcome, such as
arrests. From fiscal years 2004 through 2010, 23 percent of leads
investigated by ICE field offices resulted in arrests; the other 77
percent of leads resulted in a finding of departed, in-status, or all
leads exhausted. CTCEU officials stated that there are various reasons
that leads do not result in an arrest. For example, officials said
that databases used to verify leads may not have the most current
information, such as a petition for an immigration benefit. ICE
officials also stated that it can be difficult to locate overstays in
cases when there is not a last known address, as overstays can move to
other locations.
Internal control standards require that agencies develop control
activities as an integral part of planning, implementing, reviewing,
and accountability for stewardship of government resources and
achieving effective results. Control activities can include, for
example, establishing and reviewing performance measures and
indicators. While CTCEU does not have such performance measures, US-
VISIT--which performs a similar function to CTCEU by providing
overstay leads for investigation--has established an outcome measure
based on the credibility rate of its leads becoming investigative
cases. Specifically, US-VISIT measures the percentage of suspected
overstay leads it forwards to CTCEU that are currently in the United
States and have overstayed their authorized periods of admission,
based on the information in the databases US-VISIT checks at the time
of its review of those leads. US-VISIT officials stated they have
found establishing this performance measure beneficial because it
provides them with information that is helpful for improving the
quality of its analyses to identify overstay leads. US-VISIT officials
also stated that the credibility rate is helpful for training its
analysts in areas where consistent errors were made, such as in
reviewing refugee and asylee benefits information. CTCEU collects data
on the results of its overstay investigations, such as the number of
arrests resulting from leads sent to field offices for investigation,
but does not use this type of information to assess the quality of its
leads because it had not identified doing so as necessary. By using
data such as this to assess the quality of its leads against
performance measures and monitoring the results of those measures,
CTCEU could obtain information to adjust its approach in identifying
and assigning leads, thereby strengthening its overall overstay
investigative efforts.
Addressing US-VISIT's Backlog of Potential Overstay Records:
US-VISIT has a backlog of several hundred thousand unreviewed
nonpriority in-country overstay leads, which could impede US-VISIT's
efforts to identify possible overstay leads for CTCEU to investigate.
At the end of fiscal year 2009, US-VISIT reported a total backlog of
about 959,000 in-country overstay leads, and program officials
attributed this backlog to resource constraints and US-VISIT's focus
on reviewing leads that meet ICE's investigative priorities.[Footnote
54] The conference report accompanying the fiscal year 2010 Department
of Homeland Security Appropriations Act noted congressional concerns
regarding this backlog, stating that the backlog in overstay records
was troubling and represented a major vulnerability.[Footnote 55] In
response to this concern, DHS reprogrammed $5 million from fiscal year
2009 to help address these backlogged leads, and US-VISIT officials
reported processing approximately 587,000 of the backlogged leads in
fiscal year 2010. However, as of January 2011, US-VISIT computer
systems identified having a backlog of 1.6 million potential overstay
records. According to US-VISIT officials, the 1.6 million potential
overstay records include prior nonpriority overstay leads that have
not yet been reviewed, nonpriority leads that continue to accrue on a
daily basis, and leads generated in error as a result of CBP system
changes. Specifically, CBP system changes resulted in multiple arrival
or departure records being inadvertently created for a single
individual. US-VISIT officials stated that they are currently in the
process of addressing the impact of these CBP system changes by
working with CBP to prevent multiple records from inadvertently being
created in the Arrival and Departure Information System, which can
subsequently cause some overstay leads to be generated in error. As of
December 2010, US-VISIT was considering ways to improve the efficiency
of its current operations so that it can process the remaining
backlogged leads once its reprogrammed funds are fully expended by,
for example, increasing the required number of leads contractors
review. However, according to US-VISIT officials, as of February 2011,
the unit had spent $3.7 million of the $5 million in reprogrammed
funds and would not be able to prevent further backlogged leads from
accumulating without additional resources.
These four challenges--unreliable collection of departure data at
POEs, Student and Exchange Visitor Information System database
limitations, lack of mechanisms for assessing the quality of leads
that CTCEU sends to the field offices for investigation, and US-
VISIT's backlog in analyzing potential overstay leads--hinder DHS's
efforts to identify possible overstays in the United States for
investigation by ICE. They also impede DHS from annually reporting
overstay estimates and overstay rates, as required by statute.
Specifically, by statute, DHS is required to submit an annual report
to Congress providing numerical estimates of the number of aliens from
each country in each nonimmigrant classification who overstayed an
authorized period of admission that expired during the fiscal year
prior to the year for which the report is made.[Footnote 56] DHS
officials stated that the department has not provided Congress annual
overstay estimates regularly since 1994 because officials do not have
sufficient confidence in the quality of the department's overstay
data--which is maintained and generated by US-VISIT. As a result, DHS
officials stated that the department cannot reliably report overstay
rates in accordance with the statute. Further, by statute DHS is to
determine a disqualification rate for each country that participated
in the VWP during the previous fiscal year--that is the percentage of
a VWP country's nationals who applied for admission under the program
during the previous fiscal year who were denied admission at the time
of arrival (including those allowed to withdraw their application for
admission at the POE or violated the terms of their admission, which
would include overstaying the 90-day period of admission.[Footnote 57]
According to statute, if DHS determines that a VWP country's
disqualification rate is between 2 and 3.5 percent, the country is to
be placed in probationary status for no more than two full fiscal
years, with termination as a program country to follow if the rate
continues to be 2 percent or more. If DHS determines that the
disqualification rate is 3.5 percent or more, the country's
designation as a VWP country is to be terminated at the beginning of
the second fiscal year following the fiscal year in which the
determination is made.[Footnote 58] Because DHS is not reporting
overstay rates for countries participating in the VWP, decision makers
do not have complete information for determining policy for probation
or removal of countries from the program. In September 2008, we
recommended, among other things, that the Secretary of Homeland
Security designate an office with responsibility for developing
overstay rate information for the purpose of monitoring countries'
compliance with the statutory requirements of the VWP, and direct that
office and other DHS components to explore cost-effective actions to
further improve the reliability of overstay data.[Footnote 59] DHS
stated that it was taking steps to implement these recommendations
through actions such as working with airlines to improve the
completeness of data collection.
Broadening the Scope of Electronic Lookouts in Federal Information
Systems Could Enhance Overstay Information Sharing:
DHS Uses Various Mechanisms and Alerts to Provide Overstay Information
to Federal, State, and Local Agencies:
DHS has established a variety of mechanisms to share immigration
information--including information pertaining to overstays--among its
component entities and with other federal, state, and local agencies.
We have previously reported on the importance of effectively sharing
information between different agencies and across levels of
government, and in 2008 DHS acknowledged that the department continued
to face barriers in this area.[Footnote 60] Responsibility for
administering and enforcing the nation's immigration policies is
divided between various components within DHS and across the federal
government, and state and local law enforcement agencies can request
immigration status information from ICE on nonimmigrants they
encounter, including whether those nonimmigrants are overstays.
DHS has taken several steps to provide its component entities and
other federal agencies with information to identify and take
enforcement action on overstays. Whereas some of these mechanisms are
designed specifically to share overstay information, other mechanisms
are broader in scope but also communicate information that can be used
to support federal overstay identification and enforcement efforts.
Table 4 provides information about these information sharing
activities.
Table 4: Primary DHS Information Sharing Activities that Contribute to
Federal Overstay Enforcement Actions:
Activity description: Biometric and biographic lookouts on the records
of overstay subjects are recorded in the Automated Biometric
Identification System and TECS, respectively[B];
Contribution to overstay efforts: Overstay lookouts alert officials if
a nonimmigrant has previously overstayed or is the subject of an ICE
investigation. Subsequently, officials may deny entry or refuse to
issue a visa or grant an immigration benefit to the nonimmigrant due
to the overstay violation;
Responsible DHS entity: US-VISIT creates lookouts for out-of-country
overstay records generated by the Arrival and Departure Information
System. CBP creates lookouts for overstay violators encountered at
POEs. CTCEU creates lookouts for the subjects of its overstay
investigations;
Primary users of information[A]: CBP, State Department, and;
USCIS.
Activity description: Arrival and departure information about foreign
citizens who travel to the United States is shared through the Arrival
and Departure Information System;
Contribution to overstay efforts: Using Arrival and Departure
Information System records, federal agencies can determine if a
foreign national has overstayed beyond his or her authorized period of
admission;
Responsible DHS entity: US-VISIT;
Primary users of information[A]: CBP, ICE, State Department, and USCIS.
Activity description: USCIS uses various electronic data systems to
share information about a nonimmigrant's immigration status and the
results of applications to change status or extend nonimmigrant
stays[C];
Contribution to overstay efforts: Federal agencies use information
provided by USCIS to help determine the immigration status of
suspected overstay violators;
Responsible DHS entity: USCIS;
Primary users of information[A]: CBP, ICE, State Department, and US-
VISIT.
Activity description: ICE field offices share information about their
overstay investigations to support deconfliction efforts[D];
Contribution to overstay efforts: ICE may share information about
overstays who are also subjects of separate federal, state, or local
investigations. Sharing this information helps to prevent ICE agents
from coming into conflict with law enforcement actions being taken or
considered by another agency targeting the same nonimmigrants;
Responsible DHS entity: ICE;
Primary users of information[A]: Federal, state, and local agencies
participating in the same deconfliction activities as the field office.
Activity description: ICE Law Enforcement Support Center, among other
duties, responds to queries for immigration status information;
Contribution to overstay efforts: In response to a query regarding a
nonimmigrant's immigration status, the Law Enforcement Support Center
informs federal, state, and local law enforcement agencies if the
nonimmigrant appears to have overstayed his or her authorized period
of admission based on available arrival and departure records[E];
Responsible DHS entity: ICE;
Primary users of information[A]: Federal, state, and local law
enforcement agencies.
Source: GAO analysis of DHS information.
[A] Although numerous federal agencies may have access to the shared
information presented in this table, CBP, ICE, USCIS, and the State
Department are the primary federal agencies with authority to use this
information to take action directly based on overstay violations.
[B] Biometric and biographic lookouts are electronic alerts that are
linked to a subject's record in the Automated Biometric Identification
System and TECS and automatically appear when the subject's
information is run through these databases in the future.
[C] According to USCIS officials, the Central Index System, Computer-
Linked Application Information Management System 3, and Computer-
Linked Application Information Management System 4 are the primary
USCIS data systems other agencies access for information about an
alien's immigration status.
[D] Examples of ICE's deconfliction activities include participating
in task forces, coordinating with fusion centers, and sharing basic
information about the targets of investigations in regional law
enforcement information systems.
[E] Once the Law Enforcement Support Center has provided its response
to the requesting law enforcement agency, the local ICE field office
is responsible for conducting any follow-up work required to make a
final status determination and, if necessary, taking the appropriate
immigration enforcement action against the nonimmigrant.
[End of table]
With regard to the use of biometric and biographic lookouts, US-
VISIT's efforts to share information about out-of-country overstays
have contributed to State Department and CBP actions to deny out-of-
country overstays new visas and prevent their return to the United
States. In particular, since fiscal year 2006, US-VISIT reported that
the State Department has refused 3,250 visa applications from
applicants who had overstay lookouts created by US-VISIT, and CBP has
refused admission to 3,960 overstay violators applying for admission
to the United States at POEs who had US-VISIT overstay lookouts on
their records.[Footnote 61] Furthermore, as shown in figure 7, the
number of applicants who had US-VISIT overstay lookouts on their
records who were refused a visa or POE admission has generally
increased each fiscal year since 2006. US-VISIT officials attributed
this increase to the fact that the cumulative number of lookouts is
increasing as new lookouts are created, thus expanding the population
of overstays that could potentially be caught each year as a result of
overstay lookouts.
Figure 7: State Department Visa Refusals and CBP Admission Refusals on
Records with US-VISIT Overstay Lookouts from Fiscal Years 2006-2010:
[Refer to PDF for image: vertical bar graph]
Fiscal year: 2006;
State Department visa refusals: 0;
Aliens refused admission by CBP: 5.
Fiscal year: 2007;
State Department visa refusals: 124;
Aliens refused admission by CBP: 327.
Fiscal year: 2008;
State Department visa refusals: 546;
Aliens refused admission by CBP: 895.
Fiscal year: 2009;
State Department visa refusals: 1,065;
Aliens refused admission by CBP: 1,437.
Fiscal year: 2010;
State Department visa refusals: 1,515;
Aliens refused admission by CBP: 1,296.
Source: GAO analysis of US-VISIT data.
[End of figure]
Expanding the Scope of Overstay Lookouts Could Improve CBP's Efforts
to Identify Overstays Attempting to Return to the United States:
Electronic lookouts are one of the primary mechanisms DHS uses to
share information about out-of-country overstays, but the current
scope of the population to which these lookouts are assigned does not
include certain categories of overstays, such as those who overstay by
less than 90 days. We have previously reported on the importance of
information sharing in a variety of contexts, and internal control
standards call for agencies to communicate pertinent information to
internal and external stakeholders so that people can perform their
duties efficiently.[Footnote 62] Similarly, DHS has identified
fostering information sharing as a core mission of the department, and
in 2007 the Secretary of DHS issued a memorandum emphasizing that DHS
personnel must have timely access to all relevant information they
need to perform their duties.[Footnote 63] Biometric and biographic
overstay lookouts immediately alert CBP's primary inspection officers
at POEs--who generally have approximately 2 to 3 minutes to make
admissions decisions--of a nonimmigrant's history as an overstay
violator, at which point the officer can refer the nonimmigrant to
secondary inspection for a more in-depth review of the alien's record
and admissibility. Although CBP can, and does, identify overstays
without lookouts through other means during the inspection process--
including interviewing the subject and reviewing arrival and departure
data in information systems or in the subject's passport--CBP
officials stated that overstay lookouts reduce the risk that overstays
could be missed during the inspection process. Furthermore, in its
fiscal year 2011 budget request, DHS credited the use of overstay
lookouts as helping to increase the number of adverse actions taken
against overstays at POEs and overseas consular offices. However, DHS
does not create lookouts for the following two categories of
overstays: (1) temporary visitors who were admitted to the United
States using nonimmigrant business and pleasure visas and subsequently
overstayed by 90 days or less; and (2) suspected in-country overstays
who CTCEU deems not to be a priority for investigation in terms of
being most likely to pose a threat to national security or public
safety.
US-VISIT is the primary entity responsible for creating biometric and
biographic lookouts for suspected out-of-country overstays who were
admitted to the United States using nonimmigrant business and pleasure
visas.[Footnote 64] According to US-VISIT officials, the decision to
focus US-VISIT's efforts on nonimmigrants who overstayed their
authorized period of admission under these visas by greater than 90
days was reached in accordance with its customers--CBP and the State
Department--in 2006 in order to focus lookout creation on more
egregious overstay violators. Specifically, CBP officials stated that
90 days was selected as the threshold for lookout creation based on
the agency's sense that nonimmigrants suspected of overstaying by more
than 90 days were more likely to eventually be confirmed as overstays
than nonimmigrants whose arrival and departure records indicated they
had overstayed by 90 days or less. Consequently, US-VISIT does not
review the records of, nor create overstay lookouts for, nonimmigrants
who were admitted to the country using business and pleasure visas and
subsequently overstayed by 90 days or less. According to US-VISIT, a
total of 570 nonimmigrant records fell into this category of overstays
in fiscal years 2007 through 2010 and were not subject to review by US-
VISIT for lookout creation.[Footnote 65] Although U.S. law does not
automatically bar aliens who overstayed their authorized period of
admission by 90 days or less from returning to the United States,
their ability to be admitted on a subsequent visit to the United
States is up to the discretion of CBP. As of January 2011, US-VISIT,
CBP, and State Department officials reported that there have been no
discussions between their agencies about revising the 90-day threshold
for creating overstay lookouts since the original decision to
establish this parameter was reached in 2006. According to US-VISIT
officials, if the decision was made to do so, reviewing new records
from this particular category of out-of-country overstays would be
expected to result in a small increase in the number of overstay
records US-VISIT would be responsible for reviewing each day. For
example, incorporating the fiscal year 2010 out-of-country overstay
records of 90 days or less from this nonimmigrant visa class would
have resulted in US-VISIT reviewing approximately one additional
overstay record each day.
In addition to this category of aliens who overstayed by 90 days or
less before departing, other categories of suspected in-country
overstays also do not have lookouts assigned to their records.
Specifically, neither CTCEU nor US-VISIT posts lookouts for
nonimmigrants who are identified as suspected in-country overstays but
who CTCEU deems not to be a priority for investigation in terms of
being most likely to pose a threat to national security or public
safety. CTCEU forwards these nonpriority leads to ERO, and according
to CTCEU officials the decision not to create lookouts for these
suspected overstays stems from concerns about the amount of resources
and time that would be required to create and maintain the lookouts,
as well as to respond to inquiries about the lookouts from other DHS
components (e.g., CBP).[Footnote 66] Alternatively, US-VISIT officials
reported that US-VISIT could potentially create lookouts for the
nonpriority overstay leads that it sends to CTCEU, many of which are
subsequently included in the leads forwarded to ERO. However, the
officials said that US-VISIT would need additional personnel in order
to be able to also create lookouts for these records. In the meantime,
if the subjects of the leads that CTCEU currently sends to ERO depart
the United States via an air or sea POE, their departure would be
recorded in the Arrival and Departure Information System and
transmitted to US-VISIT, which would then be responsible for creating
out-of-country overstay lookouts for the aliens. Conversely, if any of
these nonimmigrants depart the country by land and do not turn in
their I-94/I-94W form to record their departure, US-VISIT would not
receive their record from the Arrival and Departure Information System
as a potential new out-of-country overstay. As a result, if these
nonimmigrants try to apply for a new visa or for admission to the
country in the future, they would not have overstay lookouts on their
records to help alert the State Department or CBP officials about
their previous violation. Nevertheless, it is still possible that the
State Department and CBP could determine that these nonimmigrants had
previously overstayed their authorized periods of admission by, for
example, conducting database searches before determining whether to
issue new visas or allow the nonimmigrants into the United States.
CBP Office of Field Operations officials reported that having lookouts
created for out-of-country visa overstay violations of 90 days or less
and for in-country overstay leads that are sent to ERO could help CBP
officers more effectively identify these overstay violators during any
future attempts to gain admission to the United States. Similarly,
officials from 9 of 12 POEs we visited reported that it would be
beneficial to have lookouts created for these categories of overstays,
and officials from two of the other POEs we visited stated that
creating these lookouts could potentially be beneficial depending on
the extent to which they contain detailed information about the
factors that establish that the aliens are overstays. Nevertheless,
although the CBP Office of Field Operations officials we spoke with
expressed interest in having lookouts created for these categories of
overstays, they stated that any decision to create these lookouts
would also need to be weighed against potential costs that may be
involved. For example, in the case of lookouts for non-VWP overstays
of less than 90 days, there may be a risk that travelers could
unnecessarily be referred to secondary inspection only to have CBP
discover that they had a legitimate reason to overstay by a few days.
[Footnote 67] Likewise, in the case of in-country overstay leads that
are sent to ERO, since these leads are not manually reviewed by CTCEU,
there is an increased likelihood that lookouts based on these leads
could be inaccurate, which could result in travelers unnecessarily
being referred to secondary inspection. State Department officials we
spoke with were unsure of the extent to which creating lookouts for
these categories of overstays could provide added value to its visa
adjudication process, and stated they would need to communicate with
DHS about the potential benefits and costs associated with taking this
step in order to determine if it would be beneficial.
Being aware that an alien has previously committed an overstay
violation is necessary if CBP is to accurately determine whether or
not the violator should be re-admitted to the United States. Creating
lookouts for these additional categories of overstays would help to
alert CBP to these aliens' overstay history, thereby better
positioning the agency to accurately identify these aliens as
overstays and to incorporate this information into future
admissibility decisions involving these nonimmigrants. For example,
CBP officials at two POEs we visited stated that creating lookouts for
these two categories of overstays would provide another layer of
security in targeting overstays and would help to lessen the burden on
primary inspection officers attempting to identify overstays seeking
to gain admission to the country. Furthermore, to the extent these
expanded lookouts help CBP identify overstays encountered at POEs, the
lookouts could also help improve CBP's ability to take enforcement
action against these overstays, including denying them the opportunity
to be admitted to the country and to overstay again. Additionally,
officials from three POEs we visited reported that including these
overstays on US-VISIT's biometric watch list would help CBP inspection
officers positively identify overstays regardless of any efforts taken
by the aliens to conceal their violations, such as through the use of
fraudulent documents or backdated passport stamps. Although CBP Office
of Field Operations officials told us that creating lookouts for these
categories of overstays would likely be beneficial and could help to
reduce the risk that overstays could be missed during inspections,
they acknowledged that expanding the scope of overstay lookouts in
this manner could also produce unintended costs, such as nonimmigrants
being unnecessarily referred to secondary inspection. According to
these officials, CBP has not performed an assessment to determine if
the benefits of creating these new lookouts would outweigh the
potential costs, nor does the agency have plans to conduct this type
of assessment. Conducting such an assessment could help CBP determine
the benefits that could be gained from the creation of lookouts for
these categories of overstays relative to the costs, such as the use
of additional resources, which could result from creating the lookouts.
CBP Inspection Officers Face Challenges in Obtaining Information from
USCIS to Address Overstays, but USCIS Has Long-Term Plans to Help
Address These Challenges:
USCIS provides immigration status information to federal agencies
responsible for identifying and addressing overstays, but CBP
officials from 9 of 12 POEs we visited reported facing challenges on
some occasions obtaining information from USCIS. The ability to access
USCIS's information about pending or authorized changes to
nonimmigrants' status or the length of their stay in the United States
is particularly important to agencies seeking to identify and address
overstays, and can alter their determination of whether an alien has
committed an overstay violation. For example, if USCIS approves a
change of status or extension of stay for a nonimmigrant, the alien
may be authorized to remain in the country beyond his or her original
period of admission without qualifying as an overstay. Likewise,
nonimmigrants who have submitted a timely application to change their
status or extend their stay do not accrue unlawful presence while
their application is pending, and can be allowed to remain in the
United States beyond their original period of admission until their
case has been adjudicated by USCIS. As a result, even in instances
where an alien's arrival and departure dates indicate that an overstay
violation has occurred, checking the alien's record with USCIS may
show that the alien was authorized to remain in the United States
beyond his or her original period of admission.
Given the importance of this information for correctly identifying
overstays, being able to access timely, current, and accurate
information from USCIS about an alien's immigration status and
applications for immigration benefits is important for federal
agencies conducting overstay enforcement activities. USCIS has
identified ineffective information sharing with its government
partners as one of the agency's challenges, and has previously
acknowledged that information it shares with other agencies is
sometimes difficult to obtain, incomplete, or not current. In order to
help share information with other agencies, USCIS has granted several
agencies--including CBP, ICE, the State Department, and officials from
US-VISIT--access to select USCIS databases to allow these agencies to
search for and view various immigration records, such as nonimmigrant
applications for extensions of stay or changes of status. In
particular, USCIS officials identified the Computer-Linked Application
Information Management System 3 and the Central Index System as the
primary USCIS databases containing information relevant to identifying
overstays.[Footnote 68] Also, in 2007 USCIS deployed the Person
Centric Query Service, which helps to streamline the process of
searching for information in USCIS's databases by enabling users to
search multiple databases with a single query.
However, officials we interviewed at CBP, ICE, and the State
Department reported overall mixed views about their ability to obtain
information from USCIS in order to make timely and accurate
immigration status determinations. Although officials from the State
Department and the ICE field offices we visited did not generally
raise concerns about their ability to obtain information from USCIS
for the purpose of taking enforcement action against overstays, CBP
officials at some of the POEs we visited reported experiencing
challenges on some occasions with obtaining the information they need
from USCIS for the purpose of identifying overstays encountered at
POEs. In particular, officials at 9 of the 12 POEs described
challenges they have encountered in trying to search for and locate
records in USCIS's databases, and officials at 5 of the 12 POEs
described instances where it has been challenging to contact USCIS
directly for assistance with questions about an alien's immigration
status or to obtain information maintained in the alien's A-File.
According to CBP officials, in instances where CBP officers are unable
to obtain, or are otherwise delayed in receiving the information they
need from USCIS to determine the admissibility of a suspected
overstay, CBP officials may find it necessary to defer the alien's
inspection or make an admission decision based only on the information
available to them at the time.[Footnote 69]
Despite USCIS having an electronic information sharing infrastructure
in place, several challenges prevent CBP officials from being able to
obtain all of the information they need from USCIS by searching its
electronic databases alone. In particular, USCIS's operating processes
are paper based, which can result in some application and other case
information not being captured electronically, and thus not being
available to officials from other agencies searching USCIS's
databases. According to USCIS officials we interviewed, the extent to
which application information is captured electronically in the
agency's databases varies between different types of benefit
applications. Whereas some forms contain a limited number of fields
that are not available to be viewed electronically, there are other
types of applications--such as Form I-290B, which is used to appeal
USCIS adjudication decisions--for which the entire application form is
not captured electronically and can only be viewed in hard copy.
Additionally, USCIS officials stated that the Computer-Linked
Application Information Management System 3 can be a difficult system
for users from outside of the agency to navigate, and they stated that
in some cases external users may not know how to effectively use the
system to locate information. For example, USCIS's systems are event-
based rather than account-based, which, according to USCIS officials,
can result in different records about the same nonimmigrant (e.g.,
from multiple applications) not being automatically linked together in
USCIS's databases. Consequently, external officials may have to run
several queries to assemble all information for a nonimmigrant, and if
any of the nonimmigrant's records are not located during this process
the requesting entity may not have access to all of the information
needed to make an accurate immigration enforcement decision. Although
USCIS officials told us that the introduction of the Person Centric
Query Service in recent years has helped to improve the ability of
external users to search for information in USCIS's databases, USCIS
does not consider this capability to be a final solution to its
information sharing challenges. Instead, in order to address these and
other challenges, in 2007 USCIS initiated a project to transform its
operating processes and data systems.
Among other things, the USCIS Transformation Program is designed to
help the agency move away from its current paper-based process to an
electronic environment, and it is expected to result in the
development of a new information system that will eventually replace
the Computer-Linked Application Information Management System. USCIS
plans to begin implementing portions of the new information system in
late 2011, and estimates that full implementation of the
Transformation Program will be completed by fiscal year 2014. Although
USCIS expects the Transformation Program to improve its ability to
share information with other agencies, it is too early to tell what
impact the program will have on strengthening CBP's ability to obtain
information from USCIS regarding nonimmigrants' immigration status or
applications for changes in status or other benefits. We have ongoing
work assessing USCIS's transformation efforts for the House Committee
on the Judiciary and the Senate Committee on Homeland Security and
Governmental Affairs, and plan to report on these efforts later this
year.
Conclusions:
Identifying and taking enforcement action to address the estimated 4
million to 5.5 million foreign visitors who are estimated to have
entered the United States legally but then overstayed is a daunting
task. Given the government's finite resources for addressing
overstays, competing priorities, and the magnitude of the estimated
overstay population, it is particularly important that DHS overstay
enforcement programs utilize leading program management practices to
plan and execute overstay programs and effectively assess program
results so that corrective actions can be taken if necessary. By
establishing a time frame for assessing the funding and resources ERO
would require to assume some responsibility for enforcement of civil
nonpriority overstay violators and utilizing assessment findings, as
appropriate, ICE could strengthen its planning efforts for executing
its overstay enforcement activities moving forward. In addition, by
establishing mechanisms to measure the outcomes of programs intended
to address overstays in accordance with leading practices for
performance management, CTCEU program managers could have more
specific information with which to make informed decisions as to what
program adjustments might be necessary, if any, to maximize program
effectiveness.
Identifying overstays is challenging, particularly given that, in the
absence of biometric departure data, DHS must rely on biographic
information to do so. As DHS's ability to accurately identify
overstays is largely dependent on the quality of the alien arrival and
departure data CBP collects, it is important that CBP take steps to
ensure these data are as reliable as possible. By establishing a
mechanism to collect biographic I-94/I-94W exit documentation at land
POEs to the extent that benefits outweigh costs, CBP could better
ensure the completeness of alien departure data. Also, the reliability
of leads sent to field offices is important because ICE has limited
resources to investigate a large population of overstays. By
developing and using performance measures to assess the quality of
overstay leads, CTCEU's process for validating leads could improve and
commensurately focus ICE field office resources on more promising
overstay investigations. DHS's ability to share information between
the many governmental entities involved in administering the nation's
immigration laws also has an impact on the effectiveness of its
efforts to identify and take enforcement action against overstays.
Although the department has established various mechanisms to share
immigration information, expanding the scope of overstay lookouts
could improve CBP's ability to identify overstays during the
inspection process, and by extension, better position it to take
enforcement action to address overstay violators attempting to re-
enter the United States.
Recommendations for Executive Action:
To help ICE's execution of overstay enforcement efforts; and improve
assessment of ICE programs that identify and address overstays so that
program adjustments can be made, if necessary; we recommend that the
Assistant Secretary of Immigration and Customs Enforcement take the
following three actions:
* establish a target time frame for assessing the funding and
resources ERO would require in order to assume responsibility for
civil overstay enforcement and use the results of that assessment;
* develop outcome-based performance measures--or proxy measures if
program outcomes cannot be captured--and associated targets on CTCEU's
progress in preventing terrorists and other criminals from exploiting
the nation's immigration system; and:
* develop a performance measure for assessing the quality of leads
CTCEU assigns to ICE field offices for investigations, using
performance information already collected by CTCEU.
To increase the completeness of exit information available for the
purpose of identifying overstays, we recommend that the Commissioner
of Customs and Border Protection analyze the costs and benefits of
developing a standard mechanism for collecting I-94/I-94W forms at
land POEs, and develop a standard mechanism to collect these forms, to
the extent that benefits outweigh the costs.
To improve information sharing in support of efforts to identify and
take enforcement action against overstays, we recommend that the
Secretary of Homeland Security direct the Commissioner of Customs and
Border Protection, the Under Secretary of the National Protection and
Programs Directorate, and the Assistant Secretary of Immigration and
Customs Enforcement to assess the costs and benefits of creating
biometric and biographic lookouts for (1) out-of-country overstays of
90 days or less who entered the country using nonimmigrant business
and pleasure visas, and (2) in-country overstay leads sent to ERO, and
create these lookouts, to the extent that the benefits of doing so
outweigh the costs.
Agency Comments and Our Evaluation:
We provided a draft of this report to DHS and the State Department for
their review and comment. On April 11, 2011, we received written
comments on the draft report from DHS, which are reproduced in full in
appendix III. DHS concurred with our five recommendations and
described actions under way or planned to address them. DHS also
provided technical comments, which we incorporated as appropriate.
With regard to our first recommendation that ICE establish a target
time frame for assessing the funding and resources ERO would require
in order to assume responsibility for civil overstay enforcement and
use the results of that assessment, DHS stated that ICE is in the
process of planning for ERO to assume this responsibility.
Specifically, DHS stated that ICE will identify the resources needed
to transition this responsibility to ERO as part of the Fiscal Year
2013 Resource Allocation Plan. We believe that setting a target time
for completing funding and resource assessment efforts would help ICE
hold its staff accountable for completing these efforts. With regard
to our second recommendation that ICE develop outcome-based
performance measures or proxy measures and associated targets for
assessing CTCEU's progress in preventing exploitation of the nation's
immigration system, DHS stated that ICE plans to consult with DHS's
national security partners to determine if proxy measures can be
implemented. Establishing performance measures or proxy measures
should help strengthen ICE's overstay enforcement efforts and
assessment of ICE programs that identify and address overstays.
With regard to our third recommendation that ICE develop a performance
measure for assessing the quality of leads CTCEU assigns to ICE field
offices for investigations, DHS stated that, while the department
concurred with the recommendation, CTCEU disagreed with our assessment
that the metric it uses to assess the quality of overstay leads--a
sampling of 1 percent of daily leads to correct deficient information
and determine if additional training is needed to correct repetitive
errors--is not sufficient to assess the quality of leads. CTCEU stated
that one of the challenges to developing a metric is that it has to
rely on information from other DHS components to formulate leads, and
when that information becomes more reliable and accurate, CTCEU's
leads should also become more reliable. While we recognize that CTCEU
relies on data from various components to conduct its work and that
the quality of its leads is impacted by the quality of data it uses to
formulate them, we continue to believe that CTCEU could benefit from
using information that it already collects through its sampling
process to assess the quality of its leads against performance
measures and monitoring the results of those measures. Through such
assessment and monitoring, we believe CTCEU could obtain information
to adjust its approach in identifying and assigning leads, as needed,
to strengthen its overall overstay enforcement efforts.
To address our fourth recommendation, that CBP analyze the costs and
benefits of developing a standard mechanism for collecting I-94/I-94W
forms at land POEs, CBP proposed the completion of a cost effective
independent evaluation. CBP also noted that different operating
environments may render a standard mechanism for collecting I-94/I-94W
forms inefficient. We recognize that different operating environments
can effect the efficient collection of these forms, as we have
reported, and believe this would be an important consideration in such
an evaluation. Finally, DHS stated that in response to our fifth
recommendation to assess the costs and benefits of creating biometric
and biographic lookouts for out-of-country overstays of 90 days or
less and in-country overstay leads sent to ERO, that ICE, CBP, and the
National Protection and Programs Directorate will work together to
assess the costs and benefits of creating lookouts for these
categories of overstays, and that the results of this assessment will
be used to determine the feasibility of additional program costs.
The State Department did not have formal comments on our draft report,
but provided technical comments, which we incorporated as appropriate.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies of this report
to the Secretaries of Homeland Security and State, selected
congressional committees, and other interested parties. In addition,
the report will be available at no charge on the GAO Web site at
[hyperlink, http://www.gao.gov].
If you or your staff have any questions concerning this report, please
contact me at (202) 512-8777, or StanaR@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. Key contributors are listed in
appendix IV.
Signed by:
Richard M. Stana:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: Scope and Methodology:
To determine the extent to which federal agencies take actions to
address overstays, we analyzed program documentation, collected data,
and interviewed officials from the Department of Homeland Security
(DHS) and its components, including U.S. Immigration and Customs
Enforcement (ICE); U.S. Customs and Border Protection (CBP); U.S.
Citizenship and Immigration Services (USCIS); and the United States
Visitor and Immigrant Status Indicator Technology program(US-VISIT);
and the State Department. In particular, we analyzed ICE
documentation, such as standard operating procedures, memos, and
guidance for investigations, to determine the goals, programs,
processes, and systems ICE has established for the purpose of taking
enforcement action against suspected overstays located within the
United States. We also interviewed ICE officials from the
Counterterrorism and Criminal Exploitation Unit (CTCEU) and
Enforcement and Removal Operations (ERO) headquarters, and conducted
site visits to six ICE Homeland Security Investigations Special Agent
in Charge field offices (located in Seattle, Washington; Los Angeles,
California; San Diego, California; Miami, Florida; New York, New York;
and Newark, New Jersey).[Footnote 70] We selected these locations
based on (1) the range in the number of overstays investigations
completed by the offices from fiscal year 2004 through fiscal year
2010; (2) the offices' geographic location; and (3) the offices'
proximity to CBP ports of entry (POE) we visited.[Footnote 71] While
the information we obtained from officials at these locations cannot
be generalized across all 26 Special Agent in Charge field offices,
the visits provided us with the perspectives of ICE officials
responsible for conducting overstay investigations, including their
views on the processes ICE has established for conducting and
overseeing these investigations and any challenges they have faced in
investigating overstay cases. We also assessed the extent to which
CTCEU's program practices were consistent with standard practices for
program management and GAO's Standards for Internal Control in the
Federal Government.[Footnote 72]
Further, we obtained and analyzed data from ICE's system for tracking
overstay leads on the results of CTCEU's overstay investigations from
fiscal year 2004 through fiscal year 2010.[Footnote 73] In addition,
we determined the extent to which Homeland Security Investigations
dedicates investigative resources to overstay investigations by
analyzing data on investigative hours by case category for fiscal
years 2006 through 2010.[Footnote 74] We assessed the reliability of
these data by (1) reviewing existing documentation and documentation
we collected on the controls in the systems and the policies for
ensuring data reliability; and (2) interviewing agency officials who
are familiar with the source of the data and internal controls built
into ICE's systems, as well as the quality assurance steps performed
after data are entered into the systems. We determined that the data
were sufficiently reliable for the purposes of our report.
Moreover, we analyzed documentation, such as field office manuals and
program memos, regarding enforcement actions taken by CBP and the
State Department against out-of-country overstays attempting to be
admitted to the United States or apply for a new visa. We also
interviewed officials from the CBP Office of Field Operations and the
State Department Bureau of Consular Affairs to identify the types of
actions taken against overstays by these agencies and the
circumstances in which these actions occur. We analyzed data provided
by CBP on POE inadmissibilities, and the State Department on visa
refusals, in order to quantify the results of actions taken by each
agency against overstays from fiscal year 2005 through fiscal year
2010.[Footnote 75] We assessed the reliability of the data provided by
CBP and the State Department by interviewing agency officials who are
familiar with the data systems and the processes used to collect,
record, and analyze the data. We determined that the data were
sufficiently reliable for the purposes of our report.
To determine the extent to which DHS identifies overstays and shares
overstay information among its components and with federal, state, and
local agencies, we analyzed the processes DHS uses to (1) evaluate
suspected overstay records, (2) collect nonimmigrant arrival and
departure information, and (3) share information on overstays among
its component entities and with other federal, state, and local
agencies.[Footnote 76] As part of our effort to evaluate these
processes, we compared the processes established by DHS to criteria in
Standards for Internal Control in the Federal Government.[Footnote 77]
Furthermore, we reviewed US-VISIT and CTCEU program documentation--
such as standard operating procedures and guidelines for evaluating
overstay records--and analyzed data on the number of overstays
identified and overstay leads processed by US-VISIT from fiscal years
2005 through 2010 and by CTCEU from fiscal years 2004 through
2010.[Footnote 78] We assessed the reliability of the data provided by
US-VISIT and CTCEU by reviewing documentation on the data systems'
controls and specifications, and interviewing US-VISIT and CTCEU
officials who are familiar with the data systems. We determined that
the data were sufficiently reliable for the purposes of our report.
Further, we interviewed officials from US-VISIT, CTCEU, and the DHS
Office of Immigration Statistics about the processes and systems used
to analyze nonimmigrant arrival and departure information and other
immigration records for the purpose of identifying overstays. We also
interviewed officials at CBP Office of Field Operations headquarters
and conducted site visits to three land POEs (located in Blaine,
Washington; San Ysidro, California; and Otay Mesa, California), four
sea POEs (located in Seattle, Washington; Los Angeles/Long Beach,
California; Miami, Florida; and Newark, New Jersey/New York, New
York), and five air POEs (located in Seattle, Washington; Los Angeles,
California; Miami, Florida; Newark, New Jersey; and New York, New
York) in order to observe, and obtain officials' views on, the
processes and systems used by CBP to inspect passengers and collect
nonimmigrant arrival and departure information. We selected these
locations based on (1) the presence of multiple types of POEs (land,
sea, or air) in close proximity to each other; (2) the locations being
geographically dispersed to include POEs on the eastern and western
coasts, as well as on the northern and southern land borders; and (3)
the locations being in close proximity to ICE Homeland Security
Investigations field offices we visited. Additionally, to assess DHS's
efforts to share overstay information, we reviewed program
documentation from US-VISIT, ICE, and USCIS about applicable
information sharing activities and interviewed officials from
different agencies involved in sharing or receiving overstay
information about the results of these activities. In particular, we
interviewed officials from US-VISIT, ICE, and USCIS to obtain the
perspective of agencies responsible for sharing overstay-related
information. Likewise, we also interviewed State Department officials
from the Bureau of Consular Affairs and CBP officials from the Office
of Field Operations headquarters and at the POEs we visited to obtain
the view of agencies responsible for using the shared information to
take enforcement action against out-of-country overstays. Although we
cannot generalize the information obtained during the site visits to
the experience of CBP officials at all POEs, these visits provided us
with valuable perspectives on the mechanisms DHS uses to share
information about overstays and the processes CBP uses to inspect
travelers and collect nonimmigrant information at POEs.
We conducted this performance audit from February 2010 through April
2011, in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Department of Homeland Security Identification of
Overstays:
The United States Visitor and Immigrant Status Indicator Technology
Program (US-VISIT) is the primary Department of Homeland Security
(DHS) entity responsible for identifying visa and Visa Waiver Program
(VWP) nonimmigrant overstays.[Footnote 79] As of November 2010, US-
VISIT had 42 government positions and 76 contractor positions
responsible for identifying nonimmigrant overstays based on
nonimmigrants' arrival and departure information collected by DHS's
U.S. Customs and Border Protection (CBP) at ports of entry (POE) and
contained in the Arrival and Departure Information System database, a
repository of biometric and biographic information maintained by US-
VISIT. Using this database, US-VISIT identifies both in-country and
out-of-country overstays.
US-VISIT Identification of In-Country Overstays:
To identify in-country overstays, US-VISIT first uses the Arrival and
Departure Information System to generate an automated report that
identifies nonimmigrants whose period of authorized admission has
elapsed but for whom there is no departure record in the Arrival and
Departure Information System. US-VISIT conducts automated and manual
searches of 13 databases for information indicating that any of the
remaining suspected overstays have left the country, have been granted
an adjustment of status, or have a legitimate reason for staying
longer than their authorized periods of admission (e.g., if the person
has been granted asylum status). All suspected overstay leads that do
not have records indicating that the suspected overstays have left the
country or that indicate that they otherwise may remain in the country
due to, for example, a change in status, are sent to the ICE
Counterterrorism and Criminal Exploitation Unit (CTCEU) for further
verification. US-VISIT cannot conclusively confirm that the leads it
provides to ICE are overstays because some information in the various
databases it searches may be incorrect, out-of-date, or missing. To
positively identify overstays, ICE must conduct further review and
investigations.
As shown in table 5, from fiscal years 2005 through 2010, US-VISIT
analyzed over 5 million leads and sent over 79,000 leads to CTCEU for
further review.
Table 5: Number of Records Processed and Identified as Potential
Overstays from Fiscal Years 2005-2010:
Fiscal year: 2005;
Number of records processed (rounded to the nearest 100): 67,600;
Number of records identified as potential overstays and sent to CTCEU
(rounded to the nearest 100): 1,400.
Fiscal year: 2006;
Number of records processed (rounded to the nearest 100): 649,500;
Number of records identified as potential overstays and sent to CTCEU
(rounded to the nearest 100): 4,200.
Fiscal year: 2007;
Number of records processed (rounded to the nearest 100): 733,300;
Number of records identified as potential overstays and sent to CTCEU
(rounded to the nearest 100): 12,900.
Fiscal year: 2008;
Number of records processed (rounded to the nearest 100): 2,054,300;
Number of records identified as potential overstays and sent to CTCEU
(rounded to the nearest 100): 14,200.
Fiscal year: 2009;
Number of records processed (rounded to the nearest 100): 620,900;
Number of records identified as potential overstays and sent to CTCEU
(rounded to the nearest 100): 16,400.
Fiscal year: 2010;
Number of records processed (rounded to the nearest 100): 1,236,400;
Number of records identified as potential overstays and sent to CTCEU
(rounded to the nearest 100): 30,400.
Fiscal year: Total;
Number of records processed (rounded to the nearest 100): 5,362,000;
Number of records identified as potential overstays and sent to CTCEU
(rounded to the nearest 100): 79,500.
Source: US-VISIT information from the TRAC database.
[End of table]
US-VISIT Identification of Out-of-Country Overstays:
To identify out-of-country overstays, US-VISIT conducts manual and
automated analyses similar to the processes for identifying in-country
overstays, as shown in figure 8.
Figure 8: US-VISIT Process for Identifying Out-of-Country Overstays:
[Refer to PDF for image: illustration]
Automated Identification:
* VWP travelers with 7 or more overstay days;
* Nonimmigrant visa holders with more than 90 overstay days[A];
and:
Exhausted In-country Leads:
In-country leads with more than 90 overstay days exhausted by CTCEU:
Leads to:
Manual Search by Analyst: Uses process generally similar to that for
in-country overstays to search for evidence that traveler is not
inadmissible:
Evidence found: Record Closed.
No evidence found: Supervisory Review.
Passes review:
Lookout Creation:
* Biographic;
* Biometric.
Lookout Used to Assist:
1. CBP officers if the overstay attempts to reenter the United States
at a POE.
2. State Department officers if the overstay applies for a visa.
Lookout Results Tracked.
Source: GAO analysis of US-VISIT standard operating procedure manual.
[A] Nonimmigrant visa holders include those traveling on visas for
business, pleasure, or medical treatment.
[End of figure]
Generally, the Arrival and Departure Information System identifies
potential out-of-country overstays and then US-VISIT analysts verify
the status of the suspected overstays through checking information in
various databases. If through this verification process an analyst
determines that a suspected overstay's actual departure date exceeds
his or her authorized departure date by more than 90 days for
nonimmigrant visa holders or by 7 or more days for nonimmigrants
traveling under the VWP, the analyst creates an electronic lookout on
the nonimmigrant's record to notify federal officials that he or she
previously overstayed.[Footnote 80] CBP officers use the lookout to
help determine whether the nonimmigrant is eligible for readmission to
the United States, and State Department consular officials use this
information to help determine whether the nonimmigrant is eligible for
a future visa. From fiscal years 2005 through 2010, US-VISIT created
lookouts for about 53,000 suspected of-out-country overstays.
CTCEU Identification of In-Country Overstay Leads:
CTCEU is responsible for identifying and validating overstay leads to
be investigated by the ICE Homeland Security Investigations field
offices. At the beginning of fiscal year 2011, CTCEU had 50 contract
analyst and 17 government, including supervisory, positions dedicated
to identifying leads. CTCEU conducts analysis subsequent to that
performed by US-VISIT to identify additional in-country overstays and
verify overstay leads provided US-VISIT. Specifically, CTCEU analyzes
(1) in-country visa overstay leads provided by US-VISIT, (2) in-
country VWP overstay leads provided by US-VISIT, (3) out-of-status
students identified in the Student and Exchange Visitor Information
System, and (4) overstay leads based on data collected from the
National Security Entry-Exit Registration System. CTCEU analysts
compare records from these four sources against records in other
databases that contain information on, for example, nonimmigrants'
applications to change status, to determine whether nonimmigrants have
overstayed and are likely still present in the United States.
Specifically, CTCEU runs 28 different queries in 15 databases to
identify information pertaining to leads. These databases include the
same ones that US-VISIT reviews to identify any newly updated
information as well as additional databases. During this process,
CTCEU removes records of nonimmigrants that have either left the
country or changed their status, identifies nonpriority leads for
processing by ICE Enforcement and Removal Operations, and sends leads
that do not have a viable address to contractors to continually
monitor for new address information. CTCEU assigns overstay leads
deemed to be valid and of high priority to ICE field office agents
within their geographical area of responsibility for mandatory
investigation.
From fiscal years 2004 through 2010, CTCEU processed over 1,373,000
leads and sent over 38,000 leads to field offices for investigation.
Table 6 provides information related to the overstay leads that CTCEU
has processed from fiscal years 2004 through 2010.
Table 6: CTCEU Processing of In-Country Overstay Leads from Fiscal
Years 2004-2010:
Status of leads: Leads imported;
2004: 261,600;
2005: 198,600;
2006: 168,500;
2007: 197,300;
2008: 155,600;
2009: 198,300;
2010: 193,300;
Total: 1,373,200.
Status of leads: Closed leads;
2004: 239,500;
2005: 180,900;
2006: 148,200;
2007: 166,400;
2008: 104,600;
2009: 101,100;
2010: 103,900;
Total: 1,044,600.
Status of leads: Nonpriority leads sent to Enforcement and Removal
Operations;
2004: 13,900;
2005: 13,000;
2006: 15,800;
2007: 25,100;
2008: 46,000;
2009: 85,600;
2010: 79,700;
Total: 279,100.
Status of leads: Viable leads assigned to field offices for
investigation;
2004: 7,600;
2005: 4,600;
2006: 4,300;
2007: 5,700;
2008: 5,000;
2009: 6,100;
2010: 5,400;
Total: 38,700.
Status of leads: Nonviable leads sent to contractor for continual
monitoring;
2004: 700;
2005: 300;
2006: 300;
2007: 200;
2008: 100;
2009: 6,000;
2010: 4,900;
Total: 12,500.
Source: CTCEU LeadTrac data on overstay leads.
[End of table]
[End of section]
Appendix III: Comments from the Department of Homeland Security:
U.S Department et Homeland Security:
Washington, DC 20528:
April 11, 2011:
Richard N. Stana:
Director, Homeland Security and Justice:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Re: Comments to Draft Report, GAO-11-411, "Overstay Enforcement:
Additional Mechanisms for Collecting, Assessing, and Sharing Data Could
Strengthen DHS's Efforts but Would Have Costs"
Dear Mr. Stana:
The Department of Homeland Security (DHS) Components with the greatest
responsibility for overstay enforcement are U.S. Immigration and
Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP),
and National Protection and Programs Directorate (NPPD). DHS
appreciates the opportunity to review and provide comments to the
recommendations in your report on overstay enforcement. It is
important to note that this report focuses on both in the
identification and enforcement of visa overstays. The report
classifies overstays for non-immigrants who exceed their term of
admission (such as a visitor) and those who violate their status (such
as a student). This report is comprehensive and provides a good
working knowledge about the non-immigrant visa process. ICE, CPB, and
NPPD will work individually and collectively to resolve the issues
identified in the report.
The purpose of this audit was to determine the extent to which DHS
takes action to address Overstays and shares overstay information
among the Components responsible for border security and immigration
enforcement. In the absence of a biometric entry and exit system, DHS
uses various methods to identify overstays, primarily biographic data
and share overstay information.
The report illustrates how DHS actions to address enforcement of the
estimated overstay population could be enhanced by improved planning
and information sharing. We have addressed each recommendation
separately below.
To help ICE's execution of overstay enforcement efforts and improve
assessment of ICE programs that identify and address overstays and
allow program adjustments, if necessary, the U.S. Government
Accountability Office (GAO) recommended that the Assistant Secretary for
Immigration and Customs Enforcement take the following three actions:
Recommendation 1: "Establish a target timeframe for assessing the
funding and resources ERO would require in order to assume
responsibility for civil overstay enforcement and use the results of
that assessment."
Response: DHS concurs. In June 2010, ICE Director Morton announced his
intention to transition noncriminal overstays from the Counter
Terrorism and Criminal Exploitation Unit (CTCEU), which is part of
Homeland Security Investigations (HSI), to ERO. HSI and ERO are in the
process of planning for this transition. As part of the Fiscal Year
2013 Resource Allocation Plan, ICE will identify the resources needed
to execute this transition.
Recommendation 2: "Develop outcome-based performance measures”or proxy
measures if program outcomes cannot be captured”and associated targets
on CTCEU' s progress in preventing terrorists and other criminals from
exploiting the nation's immigration system."
Response: DHS concurs. Due to the nature of "pro-active"
investigations, a performance measure is not currently available to
capture the success of the CTCEU's ability to discourage or prevent
terrorist activity in the United States. As previously stated, CTCEU's
approach to preventing the exploitation of the immigration system is
one that mirrors the precept of the legal system in that compliance to
the law is based on deterrence through example. In addition, the
CTCEU prevents exploitation by enacting revisions to immigration
policy and U.S. Law intended to counter identified vulnerabilities. In
the meantime, ICE will consult with our national security partners to
determine if proxy measures can be implemented to satisfy this
recommendation.
Recommendation 3: "Develop a performance measure for assessing quality
of leads CTCEU assigns to ICE field offices for investigations, using
performance information already collected by CTCEU."
Response: DHS concurs. Since November 2007, CTCEU has conducted
quality reviews by sampling 1% of daily leads to correct deficient
information in the leads it sends to the field and to determine if
additional training is needed to correct repetitive errors. ICE
believes that this has contributed to the increase in field arrests
since its implementation. The report referenced this; however, it also
suggested that this metric is not sufficient to assess the quality of
overstay leads. The CTCEU disagrees with this assertion and contends
that quality control reviews ensure that the field agents have the
most reliable information available at that time to begin an
investigation. One of the challenges to developing such a performance
measure is the fact that CTCEU relies on other Components' information
to formulate leads. As that information becomes more reliable and
accurate, so will the effectiveness of CTCEU leads. This report
accurately stated 77% of CTCEU leads resulted in a finding of
"departure," "in-status," or "all leads exhausted." Information
correlating to these findings is derived from DHS databases
referencing alien departure records, alien application filings, and
alien self-reported addresses, which are frequently inaccurate and
unreliable.
The report correctly stated that a direct correlation could not be
attributed to enforcement actions by conducting quality reviews. The
success or outcome of a lead generated by the CTCEU has many factors
that cannot be accounted for by this program, such as the overstay
moving without notification, dependence on other agencies to update
their computer systems, and deficiencies in collected information.
Recommendation 4: "To increase the completeness of exit information
available for the purpose of identifying overstays, we recommend that
the Commissioner of Customs and Border Protection analyze the costs
and benefits of developing a standard mechanism for collecting
I-84/I-94W forms at land POEs, and develop a standard mechanism to
collect these forms, to the extent that benefits outweigh the costs."
Response: DHS concurs. A standardized mechanism to collect I-94 and I-
94W departure information at the land border would be beneficial. CBP
would like to propose a cost-effective independent evaluation be
considered as responsive to this recommendation for identifying the
benefits and risks with associated costs to a standardized land border
mechanism for the collection of the paper I-94 given the ever-changing
land border environment.
Given the different operating environments on the land border, certain
factors that would challenge the efficient collection of this
information include multiple entries (commuters), different
nonimmigrant classifications (students), and the unforeseen results of
future initiatives (automated I-94). Therefore, it may be premature at
this time to develop such a standard mechanism for a paper process.
Operating environments differ greatly from our southern border ports
to the northern border ports. Standardizing an efficient mechanism for
northern border ports may not be an efficient mechanism for southern
border ports, and vice versa. Infrastructure constraints, the lack of
any outbound inspection capability, and limited resources are also
significant challenges that impact developing such a mechanism.
CBP works closely with Canada on preliminary efforts to share certain
border-crossing data electronically. This effort could have great
potential in enhancing the CBP I-94 information collection, although
it is too early to know its true value with respect to the collection
of I-94 data. Canada currently assists us with the collection of paper
I-94s upon departure, which is a great benefit that we do not have at
our southern border ports.
Another factor that influences the development of such a standardized
mechanism is an initiative to automate the I-94, eliminating the paper
form, which will have a significant impact on exit control and the
collection of I-94 data. With this project in its early stages, it is
difficult to foresee how this may be best integrated into such a
mechanism.
Recommendation 5: "To improve information sharing in support of
efforts to identify and take enforcement action against overstays, we
recommend that the Secretary of Homeland Security direct the
Commissioner of Customs and Border Protection, the Undersecretary of
the National Protection and Programs Directorate, and the Assistant
Secretary of Immigration and Customs Enforcement to assess the costs
and benefits of creating biometric and biographic lookouts for (1) out-
of-country overstays of 90 days or less who entered the country using
nonimmigrant business and pleasure visas, and (2) in-country overstay
leads sent to ERO, and create these lookouts, to the extent that the
benefits of doing so outweigh the costs."
Response: DHS concurs. ICE, CBP, and NPPD will work together to assess
the costs and benefits of creating biometric and biographic lookouts
for these categories of overstay. This will involve a determination of
the planning and system development and implementation costs as
compared to the benefit (value-added) these costs may generate. CBP
does not anticipate any cost associated with the analysis and creation
of these lookouts as this function is currently performed by NPPD and
ICE. Lookout creation on overstays of less than 90 days would assist
CBP in identifying those that may have violated their terms of prior
admission. These lookouts could also be used for analysis in
determining whether an individual requires additional screening,
including whether an alien's visa is void pursuant to INA 222(g). The
results of this assessment will be used to determine the feasibility
of additional program costs.
DHS concurs with the five GAO recommendations. DHS is taking the
necessary actions to address each recommendation. Thank you for the
opportunity to comment on this Draft Report. We look forward to
working with you on future Homeland Security issues.
Sincerely,
Signed by:
Jim H. Crumpacker:
Director:
Departmental GAO/OIG Liaison Office:
[End of section]
Appendix IV: GAO Contact and Staff Acknowledgments:
GAO Contact:
Richard M. Stana, (202) 512-8777 or stanar@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Rebecca Gambler, Assistant
Director, and Taylor Matheson, analyst-in-charge, managed this
assignment. Jeremy Manion, Zane Seals, and Joshua Wiener made
significant contributions to this work. Amanda Miller assisted with
design and methodology, and Frances Cook provided legal support.
Jessica Orr, Robert Robinson, Debra Sebastian, Sylvia Bascope, Richard
Eiserman, Frederick Lyles, Katherine Trenholme, and Yee Wong assisted
with report preparation.
[End of section]
Footnotes:
[1] Pew Hispanic Center, Modes of Entry for the Unauthorized Migrant
Population (Washington, D.C.: May 22, 2006).
[2] Visitors who are allowed to seek admission without a visa include
citizens of Canada and the British Overseas Territory of Bermuda (and
certain residents of other adjacent islands, such as the Bahamas)
under certain circumstances, as well as Visa Waiver Program
participants. This program allows nationals from certain countries to
apply for admission to the United States as temporary visitors for
business or pleasure without first obtaining a visa from a U.S.
consulate abroad. In order to qualify for the Visa Waiver Program, a
country must meet various requirements, such as entering into
agreement with the United States to report lost or stolen passports
within a strict time limit and in a manner specified in the agreement.
Currently, 36 countries participate in the Visa Waiver Program:
Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland,
Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta,
Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino,
Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden,
Switzerland, and the United Kingdom. We will be reporting on the
status of the Visa Waiver Program later this year.
[3] GAO, Visa Waiver Program: Limitations with Department of Homeland
Security's Plan to Verify Departure of Foreign Nationals, [hyperlink,
http://www.gao.gov/products/GAO-08-458T] (Washington, D.C.: Feb. 28,
2008).
[4] In this report we include out of status students--student visa
holders who fail to meet certain requirements, such as enrolling in a
qualified education program--in our definition of overstays.
[5] For more information on these convictions, see Department of
Justice, National Security Division Statistics on Unsealed
International Terrorism and Terrorism-Related Convictions (Washington,
D.C.: March 2010).
[6] We analyzed the results of CTCEU overstay investigations starting
in fiscal year 2004 because CTCEU, formerly called the Compliance
Enforcement Unit, was established by ICE in 2003 and fiscal year 2004
is the first year for which complete data are available. We obtained
data on ICE's overstay investigative work hours from fiscal years 2006
through 2010 in order to focus our analysis on a 5-year period.
[7] See, for example, GAO, Standards for Internal Control in the
Federal Government, [hyperlink,
http://www.gao.gov/products/GAO/AIMD-00-21.3.1] (Washington, D.C.:
Nov. 1, 1999); and the Project Management Institute's The Standard for
Program Management © (2006).
[8] A POE is a location by which individuals and merchandise may seek
legal entry into the United States. There are 327 air, sea, and land
POEs in the United States.
[9] We analyzed CBP and State Department data from fiscal years 2005
through 2010 because fiscal year 2005 is the first year for which
complete CBP data are available.
[10] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]. We
analyzed these data from US-VISIT starting in fiscal year 2005 and
from CTCEU starting in fiscal year 2004 because those are the first
years for which US-VISIT and CTCEU have complete data.
[11] During the course of our review we determined that state and
local law enforcement actions against overstays were limited and
consequently would not be a primary focus of this report.
[12] Temporary visitors to the United States generally are referred to
as "nonimmigrants." For a listing and descriptions of nonimmigrant
categories, see 8 U.S.C. § 1101(a)(15); see also 8 C.F.R. §
214.1(a)(1)-(2).
[13] Nonimmigrants eligible for the VWP that seek admission to the
United States at a land POE do not apply online to establish
eligibility.
[14] In certain circumstances citizens of Canada and the British
Overseas Territory of Bermuda (and certain residents of other adjacent
islands, such as the Bahamas) traveling to the United States as
nonimmigrants do not require a visa. See 22 C.F.R. § 41.2(a)-(f).
[15] CBP is in the process of automating the I-94W so that it will be
a paperless process. As of February 2011, the I-94W process was
automated for travelers who apply online to establish their
eligibility to travel under the VWP at all airports and most seaports.
The I-94W process has not yet been automated at land POEs and a paper-
based I-94W process is used. In addition to collecting individual
information via the I-94/I94W process, CBP requires air and sea
carriers to provide passenger manifest information for passengers
entering and exiting the United States.
[16] Although overstays are sometimes referred to as visa overstays,
we do not use that term in this report for two reasons. First, many
visitors are allowed to seek admission to the United States without
visas and to remain for specific periods, which they may overstay,
such as visitors who enter using the VWP. Second, nonimmigrants can
overstay an authorized period of admission set by a CBP officer at the
border even though that authorized period may be shorter than the
period of the visitors' visas. For example, although the State
Department may issue nonimmigrants visas that are valid for 6 months,
CBP inspectors might issue them only a 6-week period of admission when
they enter the United States. In such instances, if the nonimmigrants
remain in the United States for 7 weeks they have overstayed their
authorized periods of admission, and thus overstayed, even though
their visas have not expired.
[17] 8 U.S.C. § 1182(a)(9)(B)(i), (ii).
[18] 8 U.S.C. § 1365a.
[19] Pub. L. No. 104-208, div. C, § 110, 110 Stat. 3009-546, 3009-558
to 59.
[20] 8 U.S.C. § 1365b.
[21] GAO, Homeland Security: U.S. Visitor and Immigrant Status
Program's Longstanding Lack of Strategic Direction and Management
Controls Needs to Be Addressed, [hyperlink,
http://www.gao.gov/products/GAO-07-1065 (Washington, D.C.: Aug. 31,
2007).
[22] GAO, Homeland Security: Key US-VISIT Components at Varying Stages
of Completion, but Integrated and Reliable Schedule Needed, GAO-10-13
(Washington, D.C.: Nov. 19, 2009); [hyperlink,
http://www.gao.gov/products/GAO-07-1065]; and Homeland Security: First
Phase of Visitor and Immigration Status Program Operating, but
Improvements Needed, [hyperlink,
http://www.gao.gov/products/GAO-04-586] (Washington, D.C.: May 11,
2004).
[23] GAO, Border Security: US-VISIT Program Faces, Strategic,
Operational, and Technological Challenges at Land Ports of Entry,
[hyperlink, http://www.gao.gov/products/GAO-07-248] (Washington, D.C.:
Dec. 6, 2006).
[24] 73 Fed. Reg. 22,065 (Apr. 24, 2008).
[25] Pub. L. No. 110-329, 122 Stat. 3574, 3668-70 (2008).
[26] GAO, Homeland Security: US-VISIT Pilot Evaluations Offer Limited
Understanding of Air Exit Options, [hyperlink,
http://www.gao.gov/products/GAO-10-860] (Washington, D.C.: Aug. 10,
2010).
[27] CTCEU also investigates suspected VWP overstays, out-of-status
students and National Security Entry-Exit Registration System
violators. For the purpose of this discussion, these investigations
are referred to collectively as "overstay" investigations.
[28] ICE is unable to provide data on the number of overstays arrested
by CTCEU who were detained or deported due to the configuration of its
information systems. While CTCEU tracks overstay arrests, prior to
fiscal year 2011 it did not track the outcomes of overstay cases
following arrest because ERO, not CTCEU, is responsible for the
detention and deportation of overstays. While ERO tracks the detention
and deportation of individuals by the section of law they violate,
overstays fall under a section of law that includes other nonimmigrant
violations, and thus overstay cases cannot be easily identified. CTCEU
officials reported that the office is planning to modify its database
in order to track these data going back to fiscal year 2010. In
addition, prior to fiscal year 2011, CTCEU did not track how many of
its investigations resulted in criminal versus non-criminal arrests,
and therefore, cannot quantify how many of the approximately 8,100
overstay arrests it made based on cases initiated in fiscal year 2004
through 2010 were criminal or civil (i.e., administrative) arrests.
The most recent estimates from the Pew Hispanic Center approximated
that, in 2006, out of an unauthorized resident alien population of
11.5 million to 12 million in the United States, about 4 million to
5.5 million were overstays. Pew Hispanic Center, Modes of Entry for
the Unauthorized Migrant Population (Washington, D.C.: May 22, 2006).
[29] With regard to the second outcome, that the subject is found to
be in-status, under certain circumstances, an application for
extension or change of status can temporarily prevent a visitor's
presence in the United States from being categorized as unauthorized.
See Donald Neufeld, Acting Associate Director, Domestic Operations
Directorate, USCIS, "Consolidation of Guidance Concerning Unlawful
Presence for Purposes of Sections 212(a)(9)(B)(i) and
212(a)(9)(C)(i)(I) of the [Immigration and Nationality] Act,"
memorandum, Washington, D.C., May 6, 2009.
[30] Investigations resulting and not resulting in arrest do not total
34,700 due to rounding.
[31] Visitors traveling on nonimmigrant visas are issued a Form I-94
and visitors from the VWP countries are issued a Form I-94W while in
transit to or upon their arrival to a United States POE. The Form I-
94/I-94W, among other things, records the date a nonimmigrant's
authorized period of admission expires and the address where the
nonimmigrant reports he or she will be staying in the United States.
[32] In February 2011, the United States announced plans to work with
Canada on border security and other issues, including working towards
an integrated United States-Canada entry-exit system. This effort
would include working towards the exchange of relevant entry
information in the land environment so that documented entry into one
country serves to verify exit from the other country.
[33] DHS Congressional Budget Justification for Fiscal Year 2012.
[34] DHS did not request funds for this purpose in its fiscal year
2012 budget request.
[35] Compliance Enforcement Advisory Panel members include
representatives from the National Counterterrorism Center, the Federal
Bureau of Investigation, CBP, the State Department, and the DHS Office
of Intelligence and Analysis, and other intelligence community
stakeholders.
[36] See, for example, GAO, Combating Gangs: Better Coordination and
Performance Measurement Would Help Clarify Roles of Federal Agencies
and Strengthen Assessment of Efforts, [hyperlink,
http://www.gao.gov/products/GAO-09-708] (Washington, D.C.: July 24,
2009); and GAO, Executive Guide: Effectively Implementing the
Government Performance and Results Act, [hyperlink,
http://www.gao.gov/products/GAO/GGD-96-118] (Washington, D.C.: June
1996).
[37] OMB Circular A-11 states that output measures describe the level
of activity that will be provided over a period of time, including a
description of the characteristics (e.g., timeliness) established as
standards for the activity. Outputs refer to the internal activities
of a program (i.e., the products and services delivered). CTCEU's
mission is to prevent terrorists and other criminals from exploiting
the nation's immigration system and to expand the resource equities
within the various intelligence community and federal agencies. As
CTCEU's efforts to address overstays most closely contribute to its
mission to prevent terrorists and other criminals from exploiting the
nation's immigration system, we are focusing on this aspect of its
mission for the purpose of this discussion.
[38] Verified leads are leads that CTCEU has determined to be accurate
and viable by analyzing information from government and commercial
databases containing information related to immigration status. For
example, these procedures are intended to verify that an individual
suspected of overstaying has not departed the country or been granted
an extension of stay by USCIS.
[39] GAO, Supply Chain Security: Examinations of High-Risk Cargo at
Foreign Seaports Have Increased, but Improved Data Collection and
Performance Measures Are Needed, GAO-08-187 (Washington, D.C.: Jan.
25, 2008).
[40] State Department data indicate that a total of about 36.5 million
nonimmigrant visas and about 2.7 million immigrant visas were issued
from fiscal year 2005 through 2010.
[41] Some of these visa refusals were ultimately overcome based on the
availability of evidence that showed the applicant's ineligibility no
longer applied, the approval of a waiver, or by other relief as
provided by law. According to State Department data, from fiscal year
2005 through 2010, a total of about 4,500 nonimmigrant visa
application refusals and about 60,800 immigrant visa application
refusals based on the applicant having been unlawfully present for
more than 180 days were ultimately overcome.
[42] According to State Department officials, the State Department
records the results of adverse actions taken against aliens applying
for a new visa based on the section of law under which the alien is
inadmissible. As a result, the State Department is unable to isolate
the number of visas denied due to applicants having accrued at least
181 days of unlawful presence by overstaying their authorized periods
of admission from those that accrued unlawful presence through other
means (e.g., entering without inspection). Also, since U.S. law does
not explicitly render aliens that overstayed by 180 days or less
inadmissible to the country, actions taken against these aliens are
recorded under other broader grounds of inadmissibility that may apply
to, but are not limited to, overstays. Consequently, the State
Department is unable to quantify the number of visas it has denied on
the basis of applicants having overstayed by 180 days or less.
[43] CBP data indicates that, in total, about 1.3 million foreign
nationals were determined to be inadmissible to the United States by
the CBP Office of Field Operations from fiscal year 2005 through 2010.
As is the case with the State Department, CBP is unable to isolate and
quantify the number of aliens it has determined to be inadmissible due
to the aliens having overstayed by 180 days or less, because actions
taken against these aliens are recorded under grounds of
inadmissibility that may apply to, but are not limited to, overstays.
[44] State Department consular officers regularly conduct targeted
validation studies to evaluate the results of a sample of their visa
issuance decisions in various visa categories. The results of these
studies are used to help refine and improve the consulate's future
visa issuance decisions, and determining the extent to which
nonimmigrant visa recipients overstay their authorized period of
admission in the United States is one factor that is considered in
these validation studies. In order to conduct these studies, the State
Department works with US-VISIT to obtain, among other types of
information, arrival and departure data for the recipients of the
visas being studied.
[45] CTCEU also searches for overstays using Internet search engines
and Web sites such as Bing, Facebook, and Google.
[46] While the I-94 is a paper document, CBP collects this form and
manually inputs the departure information into the TECS database,
after which US-VISIT and CTCEU use the data to determine if
nonimmigrants have departed the United States. CBP conducts some
outbound inspections at land POEs to search for illegal bulk cash and
weapons. For further information, see GAO, Moving Illegal Proceeds:
Challenges Exist in the Federal Government's Effort to Stem Cross
Border Currency Smuggling, GAO-11-73 (Washington, D.C.: Oct. 25, 2010).
[47] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[48] DHS: Cost-Benefit Analysis Guidebook, Version 2.0 (2006).
[49] 19 C.F.R. §§ 122.75a(b), 4.64(b). Carriers are to submit the
electronic departure manifest no later than 60 minutes prior to
departure for vessels, and for airplanes, either no later than 30
minutes prior to the securing of the aircraft or no later than the
securing of the aircraft, depending on the type of electronic
transmission system used.
[50] 19 C.F.R. §§ 122.75a(d), 4.64(d).
[51] 8 U.S.C. § 1187(c)(8).
[52] GAO, Visa Waiver Program: Actions Are Needed to Improve
Management of the Expansion Process, and to Assess and Mitigate
Program Risks, [hyperlink, http://www.gao.gov/products/GAO-08-967]
(Washington, D.C.: Sept. 15, 2008).
[53] [hyperlink, http://www.gao.gov/products/GAO-10-860].
[54] Since the backlogged leads have not undergone review by US-VISIT
or CTCEU, it can be expected that many of the leads would be closed
during the automatic and manual review processes performed by these
agencies and thus may not represent overstays. In addition, any
nonpriority leads would be forwarded by CTCEU to ERO.
[55] H.R. Rep. No. 111-157, at 101 (2009).
[56] 8 U.S.C. § 1376(b).
[57] 8 U.S.C. § 1187(c)(3)(A), (f).
[58] There is an exception to this termination provision if the total
number of nationals from that country who were denied (or withdrew
their application for) admission or violated the terms of their
admission was 100 or less.
[59] [hyperlink, http://www.gao.gov/products/GAO-08-967].
[60] See, for example, GAO, Information Sharing: Practices That Can
Benefit Critical Infrastructure Protection, GAO-02-24 (Washington,
D.C.: Oct. 15, 2001); Information Sharing: Federal Agencies Are
Sharing Border and Terrorism Information with Local and Tribal Law
Enforcement Agencies, but Additional Efforts Are Needed, [hyperlink,
http://www.gao.gov/products/GAO-10-41] (Washington, D.C.: Dec. 18,
2009); Information Sharing: DHS Could Better Define How It Plans to
Meet Its State and Local Mission and Improve Performance
Accountability, [hyperlink, http://www.gao.gov/products/GAO-11-223]
(Washington, D.C.: Dec. 16, 2010); and Department of Homeland
Security, Department of Homeland Security Information Sharing Strategy
(Washington, D.C., 2008).
[61] US-VISIT did not begin to process out-of-country overstay leads
until August 2005. As a result, there are no data available for
actions taken by the Department of State and CBP based on US-VISIT
overstay lookouts in fiscal years 2004 or 2005.
[62] See [hyperlink, http://www.gao.gov/products/GAO-02-24],
[hyperlink, http://www.gao.gov/products/GAO-10-41], [hyperlink,
http://www.gao.gov/products/GAO-11-223], and [hyperlink,
http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[63] See Department of Homeland Security, Department of Homeland
Security Information Sharing Strategy (Washington, D.C., 2008); and
the DHS Secretary's February 1, 2007, Memorandum to All Department of
Homeland Security Components titled "DHS Policy for Internal
Information Exchange and Sharing."
[64] US-VISIT also creates lookouts for suspected out-of-country
overstays who were admitted to the United States under the VWP and
overstayed by 7 or more days.
[65] Based on the results of US-VISIT's automated and manual review of
other types of overstay records--in which approximately 61 percent of
the records received are subsequently closed without being forwarded
to ICE or having a lookout created--it can be expected that some of
the 570 short-term overstay records would also be closed without
having a lookout created were they to undergo the standard automated
and manual review processes US-VISIT employs for other overstay
records.
[66] CTCEU sent about 279,000 nonpriority leads to ERO from fiscal
year 2004 through fiscal year 2010. Additionally, US-VISIT's backlog
of unreviewed nonpriority leads also contains an unknown number of
leads that, if they were to be reviewed and deemed to be valid, would
potentially be forwarded to ERO in the same manner as other
nonpriority leads.
[67] Examples of legitimate reasons that may cause a foreign traveler
to overstay could include situations such as the recent volcanic
eruption in Iceland that grounded many international flights.
[68] The Computer-Linked Application Information Management System 3
database supports the adjudication of all USCIS immigration benefits
other than naturalization and humanitarian immigration benefits
(refugees, asylees, and parolees). The Central Index System database
serves as a DHS-wide index used to track the location of paper case
files (know as Alien Files or A-Files). Although the Central Index
System also maintains some immigration status information about
individuals, the Computer-Linked Application Information Management
System 3 contains additional information about particular cases.
[69] Deferred inspections are used when an immediate decision
concerning the immigration status of an arriving alien cannot be made
at the POE and there is reason to believe that, if the alien is
allowed to enter the United States and inspected at a later date, the
alien can overcome a finding of inadmissibility (e.g., based on a
suspected overstay violation) with the provision of additional
information or documentation that is not available at the time and
place of the initial examination.
[70] During our site visit to the Newark, New Jersey Homeland Security
Investigations field office, we also conducted a separate interview
with officials from the ERO field office located nearby.
[71] We selected this period because CTCEU, formerly called the
Compliance Enforcement Unit, was established by ICE in 2003 and fiscal
year 2004 is the first year for which completed overstay
investigations data are available.
[72] See, for example, [hyperlink,
http://www.gao.gov/products/GAO/AIMD-00-21.3.1] and the Project
Management Institute's The Standard for Program Management © (2006).
[73] We analyzed the results of CTCEU overstay investigations starting
in fiscal year 2004 because it is the first year for which complete
data are available.
[74] We obtained data on ICE's overstay investigative work hours from
fiscal years 2006 through 2010 in order to focus our analysis on a 5-
year period.
[75] We analyzed CBP and State Department data from fiscal years 2005
through 2010 because fiscal year 2005 is the first year for which
complete CBP data are available.
[76] During the course of our review we determined that state and
local law enforcement actions against overstays were limited and
consequently would not be a primary focus of this report.
[77] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[78] We analyzed these data from US-VISIT starting in fiscal year 2005
and from CTCEU starting in fiscal year 2004 because those are the
first years for which US-VISIT and CTCEU have complete data.
[79] US-VISIT is also the primary source for developing overstay rate
information for countries, including those participating in the VWP.
However, the Office of Immigration Statistics within DHS is
responsible for releasing this information.
[80] US-VISIT does not process records for nonimmigrant visa holders
who are suspected of overstaying by less than 90 days.
[End of section]
GAO's Mission:
The Government Accountability Office, the audit, evaluation and
investigative arm of Congress, exists to support Congress in meeting
its constitutional responsibilities and to help improve the performance
and accountability of the federal government for the American people.
GAO examines the use of public funds; evaluates federal programs and
policies; and provides analyses, recommendations, and other assistance
to help Congress make informed oversight, policy, and funding
decisions. GAO's commitment to good government is reflected in its core
values of accountability, integrity, and reliability.
Obtaining Copies of GAO Reports and Testimony:
The fastest and easiest way to obtain copies of GAO documents at no
cost is through GAO's Web site [hyperlink, http://www.gao.gov]. Each
weekday, GAO posts newly released reports, testimony, and
correspondence on its Web site. To have GAO e-mail you a list of newly
posted products every afternoon, go to [hyperlink, http://www.gao.gov]
and select "E-mail Updates."
Order by Phone:
The price of each GAO publication reflects GAO‘s actual cost of
production and distribution and depends on the number of pages in the
publication and whether the publication is printed in color or black and
white. Pricing and ordering information is posted on GAO‘s Web site,
[hyperlink, http://www.gao.gov/ordering.htm].
Place orders by calling (202) 512-6000, toll free (866) 801-7077, or
TDD (202) 512-2537.
Orders may be paid for using American Express, Discover Card,
MasterCard, Visa, check, or money order. Call for additional
information.
To Report Fraud, Waste, and Abuse in Federal Programs:
Contact:
Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]:
E-mail: fraudnet@gao.gov:
Automated answering system: (800) 424-5454 or (202) 512-7470:
Congressional Relations:
Ralph Dawn, Managing Director, dawnr@gao.gov:
(202) 512-4400:
U.S. Government Accountability Office:
441 G Street NW, Room 7125:
Washington, D.C. 20548:
Public Affairs:
Chuck Young, Managing Director, youngc1@gao.gov:
(202) 512-4800:
U.S. Government Accountability Office:
441 G Street NW, Room 7149:
Washington, D.C. 20548:
