Visa Waiver Program
Additional Actions Needed to Address Risks and Strengthen Overstay Enforcement Gao ID: GAO-12-287T December 7, 2011The Department of Homeland Security (DHS) manages the Visa Waiver Program, which allows nationals from 36 member countries to apply for admission to the United States as temporary visitors for business or pleasure without a visa. From fiscal year 2005 through fiscal year 2010, over 98 million visitors were admitted to the United States under the Visa Waiver Program. During that time period, the Department of State issued more than 36 million nonimmigrant visas to other foreign nationals for temporary travel to the United States. DHS is also responsible for investigating overstays--unauthorized immigrants who entered the country legally (with or without visas) on a temporary basis but then overstayed their authorized periods of admission. The Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act) required DHS, in consultation with the Department of State, to take steps to enhance the security of the program. This testimony is based on GAO reports issued in September 2008, April 2011, and May 2011. As requested, it addresses the following issues: (1) challenges in the Visa Waiver Program, and (2) overstay enforcement efforts.
GAO has reported on actions that DHS has taken in recent years to improve the security of the Visa Waiver Program; however, additional risks remain. In May 2011, GAO reported that DHS implemented the Electronic System for Travel Authorization (ESTA), required by the 9/11 Act, and took steps to minimize the burden associated with this new program requirement. DHS requires applicants for Visa Waiver Program travel to submit biographical information and answers to eligibility questions through ESTA prior to travel. In developing and implementing ESTA, DHS made efforts to minimize the burden imposed by the new requirement. For example, although travelers formerly filled out a Visa Waiver Program application form for each journey to the United States, ESTA approval is generally valid for 2 years. However, GAO reported that DHS had not fully evaluated security risks related to the small percentage of Visa Waiver Program travelers without verified ESTA approval. In 2010, airlines complied with the requirement to verify ESTA approval for almost 98 percent of Visa Waiver Program passengers prior to boarding, but the remaining 2 percent--about 364,000 travelers--traveled under the program without verified ESTA approval. In May 2011, GAO reported that DHS had not yet completed a review of these cases to know to what extent they pose a risk to the program and recommended that it establish timeframes for regular review. DHS concurred and has since established procedures to review a sample of noncompliant passengers on a quarterly basis. Further, to meet 9/11 Act requirements, DHS requires that Visa Waiver Program countries enter into three information-sharing agreements with the United States; however, only 21 of the 36 countries had fully complied with this requirement as of November 2011, and many of the signed agreements have not been implemented. DHS, with the support of interagency partners, has established a compliance schedule requiring the remaining member countries to finalize these agreements by June 2012. Moreover, DHS, in coordination with the Departments of State and Justice, has developed measures short of termination that could be applied on a case-by-case basis to countries not meeting their compliance date. Federal agencies take actions against a small portion of the estimated overstay population, but strengthening planning could improve overstay enforcement. ICE's Counterterrorism and Criminal Exploitation Unit (CTCEU) is the lead agency responsible for overstay enforcement. CTCEU arrests a small portion of the estimated 4 to 5.5 million overstays in the United States because of, among other things, competing priorities, but ICE expressed an intention to augment its overstay enforcement resources. From fiscal years 2006 through 2010, ICE reported devoting about 3 percent of its total field office investigative hours to CTCEU overstay investigations. ICE was considering assigning some responsibility for noncriminal overstay enforcement to its Enforcement and Removal Operations (ERO) directorate, which apprehends and removes aliens subject to removal from the United States. In April 2011, GAO reported that by developing a time frame for assessing needed resources and using the assessment findings, as appropriate, ICE could strengthen its planning efforts. DHS concurred and stated that ICE planned to identify resources needed to transition this responsibility to ERO as part of its fiscal year 2013 resource planning process. GAO made recommendations in prior reports for DHS to, among other things, strengthen plans to address certain risks of the Visa Waiver Program and for overstay enforcement efforts. DHS generally concurred with these recommendations and has actions planned or underway to address them.
GAO-12-287T, Visa Waiver Program: Additional Actions Needed to Address Risks and Strengthen Overstay Enforcement
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United States Government Accountability Office:
GAO:
Testimony:
Before the Subcommittee on Immigration Policy and Enforcement,
Committee on the Judiciary, House of Representatives:
For Release on Delivery:
Expected at 1:00 p.m. EST:
Wednesday, December 7, 2011:
Visa Waiver Program:
Additional Actions Needed to Address Risks and Strengthen Overstay
Enforcement:
Statement of Richard M. Stana, Director:
Homeland Security and Justice:
GAO-12-287T:
GAO Highlights:
Highlights of GAO-12-287T a testimony before the Subcommittee on
Immigration Policy and Enforcement, Committee on the Judiciary, House
of Representatives.
Why GAO Did This Study:
The Department of Homeland Security (DHS) manages the Visa Waiver
Program, which allows nationals from 36 member countries to apply for
admission to the United States as temporary visitors for business or
pleasure without a visa. From fiscal year 2005 through fiscal year
2010, over 98 million visitors were admitted to the United States
under the Visa Waiver Program. During that time period, the Department
of State issued more than 36 million nonimmigrant visas to other
foreign nationals for temporary travel to the United States. DHS is
also responsible for investigating overstays”-unauthorized immigrants
who entered the country legally (with or without visas) on a temporary
basis but then overstayed their authorized periods of admission. The
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11
Act) required DHS, in consultation with the Department of State, to
take steps to enhance the security of the program. This testimony is
based on GAO reports issued in September 2008, April 2011, and May
2011. As requested, it addresses the following issues: (1) challenges
in the Visa Waiver Program, and (2) overstay enforcement efforts.
What GAO Found:
GAO has reported on actions that DHS has taken in recent years to
improve the security of the Visa Waiver Program; however, additional
risks remain. In May 2011, GAO reported that DHS implemented the
Electronic System for Travel Authorization (ESTA), required by the
9/11 Act, and took steps to minimize the burden associated with this
new program requirement. DHS requires applicants for Visa Waiver
Program travel to submit biographical information and answers to
eligibility questions through ESTA prior to travel. In developing and
implementing ESTA, DHS made efforts to minimize the burden imposed by
the new requirement. For example, although travelers formerly filled
out a Visa Waiver Program application form for each journey to the
United States, ESTA approval is generally valid for 2 years. However,
GAO reported that DHS had not fully evaluated security risks related
to the small percentage of Visa Waiver Program travelers without
verified ESTA approval. In 2010, airlines complied with the
requirement to verify ESTA approval for almost 98 percent of Visa
Waiver Program passengers prior to boarding, but the remaining 2
percent-”about 364,000 travelers-”traveled under the program without
verified ESTA approval. In May 2011, GAO reported that DHS had not yet
completed a review of these cases to know to what extent they pose a
risk to the program and recommended that it establish timeframes for
regular review. DHS concurred and has since established procedures to
review a sample of noncompliant passengers on a quarterly basis.
Further, to meet 9/11 Act requirements, DHS requires that Visa Waiver
Program countries enter into three information-sharing agreements with
the United States; however, only 21 of the 36 countries had fully
complied with this requirement as of November 2011, and many of the
signed agreements have not been implemented. DHS, with the support of
interagency partners, has established a compliance schedule requiring
the remaining member countries to finalize these agreements by June
2012. Moreover, DHS, in coordination with the Departments of State and
Justice, has developed measures short of termination that could be
applied on a case-by-case basis to countries not meeting their
compliance date.
Federal agencies take actions against a small portion of the estimated
overstay population, but strengthening planning could improve overstay
enforcement. ICE‘s Counterterrorism and Criminal Exploitation Unit
(CTCEU) is the lead agency responsible for overstay enforcement. CTCEU
arrests a small portion of the estimated 4 to 5.5 million overstays in
the United States because of, among other things, competing
priorities, but ICE expressed an intention to augment its overstay
enforcement resources. From fiscal years 2006 through 2010, ICE
reported devoting about 3 percent of its total field office
investigative hours to CTCEU overstay investigations. ICE was
considering assigning some responsibility for noncriminal overstay
enforcement to its Enforcement and Removal Operations (ERO)
directorate, which apprehends and removes aliens subject to removal
from the United States. In April 2011, GAO reported that by developing
a time frame for assessing needed resources and using the assessment
findings, as appropriate, ICE could strengthen its planning efforts.
DHS concurred and stated that ICE planned to identify resources needed
to transition this responsibility to ERO as part of its fiscal year
2013 resource planning process.
What GAO Recommends:
GAO made recommendations in prior reports for DHS to, among other
things, strengthen plans to address certain risks of the Visa Waiver
Program and for overstay enforcement efforts. DHS generally concurred
with these recommendations and has actions planned or underway to
address them.
View [hyperlink, http://www.gao.gov/products/GAO-12-287T] or key
components. For more information, contact Richard M. Stana at (202)
512-8777 or stanar@gao.gov.
[End of section]
Chairman Gallegly, Ranking Member Lofgren, and Members of the
Subcommittee:
I am pleased to be here today to discuss the Visa Waiver Program,
which allows nationals from 36 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. consular office abroad.[Footnote 1]
This statement also addresses activities to identify and take
enforcement against overstays--individuals who were admitted to the
United States legally on a temporary basis--either with a visa, or in
some cases, as a visitor who was allowed to enter without a visa such
as under the Visa Waiver Program--but then overstayed their authorized
periods of admission.[Footnote 2] From fiscal year 2005 through fiscal
year 2010, over 98 million visitors were admitted to the United States
under the Visa Waiver Program. During this same time period, the
Department of State issued over 36 million nonimmigrant visas for
business travel, pleasure, tourism, medical treatment, or for foreign
and cultural exchange student programs, among other things.[Footnote
3] In addition, 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 4]
The Visa Waiver Program was established in 1986 to facilitate
international travel without threatening U.S. security.[Footnote 5]
The Implementing Recommendations of the 9/11 Commission Act of 2007
(9/11 Act) called for DHS, which implements the Visa Waiver Program,
to take steps to enhance the security of the program.[Footnote 6]
Among the mandated changes were (1) the implementation of an
electronic system for travel authorization designed to determine in
advance of travel the eligibility of Visa Waiver Program applicants to
travel to the United States under the program, (2) a requirement that
all Visa Waiver Program countries enter into agreements to share
information with the United States on whether citizens and nationals
of that country traveling to the United States represent a threat to
the security or welfare of the United States, and (3) a requirement
that all Visa Waiver Program countries enter into agreements with the
United States to report or make available lost and stolen passport
data to the United States. Prior to these changes, Congress also
mandated in 2002 that DHS evaluate and report on the security risks
posed by each Visa Waiver Program country's participation in the
program at least once every 2 years.
DHS has certain responsibilities for implementing the Visa Waiver
Program as well as for overstay enforcement efforts. Overall, DHS is
responsible for establishing visa policy, including policy for the
Visa Waiver Program. Within DHS, 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
applicants to determine their eligibility to travel to the United
States under the program. DHS's 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. Within ICE, the Counterterrorism and Criminal
Exploitation Unit (CTCEU) is primarily responsible for overstay
investigations, including investigations of Visa Waiver Program
participants who overstay their authorized periods of admission.
Further, the Department of State is responsible for adjudicating visas
for foreign nationals seeking admission to the United States.
Since September 11, 2001, GAO has published 5 reports on the Visa
Waiver Program. The reports have examined, for example, DHS's
assessment of security risks associated with the program and proposed
changes to the program. As requested, my testimony will cover the
following key issues: (1) challenges and weaknesses in the Visa Waiver
Program; and (2) efforts to take enforcement action against overstays
and reported results. This testimony is based on our prior reports on
the Visa Waiver Program, and overstay enforcement efforts published in
September 2008 and May 2011, and April 2011, respectively.[Footnote 7]
For these reports, we examined program documentation, such as standard
operating procedures, guidance for investigations, and implementation
plans. We also interviewed DHS and Department of State officials.
Additional details on the scope and methodology are available in our
published reports. We updated selected information from these reports
on, for example, the number of signed information-sharing agreements
by examining updated documents from September and November 2011 such
as correspondence provided by DHS. All of our work was conducted in
accordance with generally accepted government auditing standards.
Further Steps Are Needed to Address Potential Risks in the Visa Waiver
Program:
As we reported in May 2011, DHS implemented the Electronic System for
Travel Authorization (ESTA) to meet a statutory requirement intended
to enhance Visa Waiver Program security and took steps to minimize the
burden on travelers to the United States added by the new requirement.
[Footnote 8] However, DHS had not fully evaluated security risks
related to the small percentage of Visa Waiver Program travelers
without verified ESTA approval. DHS developed ESTA to collect
passenger data and complete security checks on the data before
passengers board a U.S. bound carrier. DHS requires applicants for
Visa Waiver Program travel to submit biographical information and
answers to eligibility questions through ESTA prior to travel.
Travelers whose ESTA applications are denied must apply for a U.S.
visa for travel to the United States. In developing and implementing
ESTA, DHS took several steps to minimize the burden associated with
ESTA use. For example, ESTA reduced the requirement that passengers
provide biographical information to DHS officials from every trip to
once every 2 years. In addition, because of ESTA, DHS informed
passengers who do not qualify for Visa Waiver Program travel that they
need to apply for a visa before they travel to the United States.
Moreover, most travel industry officials we interviewed in six Visa
Waiver Program countries praised DHS's widespread ESTA outreach
efforts, reasonable implementation time frames, and responsiveness to
feedback, but expressed dissatisfaction over ESTA fees paid by ESTA
applicants.[Footnote 9]
In 2010, airlines complied with the requirement to verify ESTA
approval for almost 98 percent of the Visa Waiver Program passengers
prior to boarding, but the remaining 2 percent--about 364,000
travelers--traveled under the Visa Waiver Program without verified
ESTA approval. In addition, about 650 of these passengers traveled to
the United States with a denied ESTA. As we reported in May 2011, DHS
had not yet completed a review of these cases to know to what extent
they pose a risk to the program. At the time of our report, DHS
officials told us that there was no official agency plan for
monitoring and oversight of ESTA. DHS tracked some data on passengers
that traveled under the Visa Waiver Program without verified ESTA
approval but did not track other data that would help officials know
the extent to which noncompliance poses a risk to the program. Without
a completed analysis of noncompliance with ESTA requirements, DHS was
unable to determine the level of risk that noncompliance poses to Visa
Waiver Program security and to identify improvements needed to
minimize noncompliance. In addition, without analysis of data on
travelers who were admitted to the United States without a visa after
being denied by ESTA, DHS could not determine the extent to which ESTA
was accurately identifying individuals who should be denied travel
under the program. In May 2011, we recommended that DHS establish time
frames for the regular review and documentation of cases of Visa
Waiver Program passengers traveling to a U.S. port of entry without
verified ESTA approval. DHS concurred with our recommendation and has
established procedures to review quarterly a sample of noncompliant
passengers to evaluate potential security risks associated with the
ESTA program.
Further, in May 2011 we reported that to meet certain statutory
requirements, DHS requires that Visa Waiver Program countries enter
into three information-sharing agreements with the United States;
however, only half of the countries had fully complied with this
requirement and many of the signed agreements have not been
implemented.[Footnote 10] The 9/11 Act specifies that each Visa Waiver
Program country must enter into agreements with the United States to
share information regarding whether citizens and nationals of that
country traveling to the United States represent a threat to the
security or welfare of the United States and to report lost or stolen
passports. DHS, in consultation with other agencies, has determined
that Visa Waiver Program countries can satisfy the requirement by
entering into the following three bilateral agreements: (1) Homeland
Security Presidential Directive (HSPD) 6, (2) Preventing and Combating
Serious Crime (PCSC), and (3) Lost and Stolen Passports.[Footnote 11]
* HSPD-6 agreements establish a procedure between the United States
and partner countries to share watchlist information about known or
suspected terrorists. As of January 2011, 19 of the 36 Visa Waiver
Program countries had signed HSPD-6 agreements, and 13 had begun
sharing information according to the signed agreements. Noting that
the federal government continues to negotiate HSPD-6 agreements with
Visa Waiver Program countries, officials cited concerns regarding
privacy and data protection expressed by many Visa Waiver Program
countries as reasons for the delayed progress. According to these
officials, in some cases, domestic laws of Visa Waiver Program
countries limit their ability to commit to sharing some information,
thereby complicating and slowing the negotiation process. In November
2011, a senior DHS official reported that 21 of the 36 Visa Waiver
Program countries have signed HSPD-6 agreements.
* The PCSC agreements establish the framework for law enforcement
cooperation by providing each party automated access to the other's
criminal databases that contain biographical, biometric, and criminal
history data. As of January 2011, 18 of the 36 Visa Waiver Program
countries had met the PCSC information-sharing agreement requirement,
but the networking modifications and system upgrades required to
enable this information sharing to take place have not been completed
for any Visa Waiver Program countries. According to officials, DHS is
frequently not in a position to influence the speed of PCSC
implementation for a number of reasons. For example, according to DHS
officials, some Visa Waiver Program countries require parliamentary
ratification before implementation can begin. Also U.S. and partner
country officials must develop a common information technology
architecture to allow queries between databases. A senior DHS official
reported in November 2011 that the number of Visa Waiver Program
countries meeting the PCSC requirement had risen to 21.
* The 9/11 Act requires Visa Waiver Program countries to enter into an
agreement with the United States to report, or make available to the
United States through Interpol or other means as designated by the
Secretary of Homeland Security, information about the theft or loss of
passports. As of November 2011, all Visa Waiver Program countries were
sharing lost and stolen passport information with the United States,
and 35 of the 36 Visa Waiver Program countries had entered into Lost
and Stolen Passport agreements according to senior DHS officials.
DHS, with the support of interagency partners, established a
compliance schedule requiring the last of the Visa Waiver Program
countries to finalize these agreements by June 2012. Although
termination from the Visa Waiver Program is one potential consequence
for countries not complying with the information-sharing agreement
requirement, U.S. officials have described it as undesirable. DHS, in
coordination with the Department of State and the Department of
Justice, developed measures short of termination that could be applied
to countries not meeting their compliance date. Specifically, DHS
helped write a classified strategy document that outlines a
contingency plan listing possible measures short of termination from
the Visa Waiver Program that may be taken if a country does not meet
its specified compliance date for entering into information-sharing
agreements. The strategy document provides steps that would need to be
taken prior to selecting and implementing one of these measures.
According to officials, DHS plans to decide which measures to apply on
a case-by-case basis.
In addition, as of May 2011, DHS had not completed half of the most
recent biennial reports on Visa Waiver Program countries' security
risks in a timely manner. In 2002, Congress mandated that, at least
once every 2 years, DHS evaluate the effect of each country's
continued participation in the program on the security, law
enforcement, and immigration interests of the United States.[Footnote
12] According to officials, DHS assesses, among other things,
counterterrorism capabilities and immigration programs. However, DHS
had not completed the latest biennial reports for 18 of the 36 Visa
Waiver Program countries in a timely manner, and over half of these
reports are more than 1 year overdue. Further, in the case of 2
countries, DHS was unable to demonstrate that it had completed reports
in the last 4 years. DHS cited a number of reasons for the reporting
delays. For example, DHS officials said that they intentionally
delayed report completion because they frequently did not receive
mandated intelligence assessments in a timely manner and needed to
review these before completing Visa Waiver Program country biennial
reports. We noted that DHS had not consistently submitted these
reports in a timely matter since the legal requirement was made
biennial in 2002, and recommended that DHS take steps to address
delays in the biennial country review process so that the mandated
country reports can be completed on time. DHS concurred with our
recommendation and reported that it would consider process changes to
address our concerns with the timeliness of continuing Visa Waiver
Program reports.
Federal Agencies Take Actions against a Small Portion of the Estimated
Overstay Population:
ICE Investigates Few In-Country Overstays, but Its Efforts Could
Benefit from Improved Planning:
As we reported in April 2011, ICE CTCEU investigates and arrests a
small portion of the estimated in-country overstay population due to,
among other things, ICE's competing priorities; however, these efforts
could be enhanced by improved planning and performance management.
CTCEU, the primary federal entity responsible for taking enforcement
action to address in-country overstays, 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.
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 13]
These cases resulted in approximately 8,100 arrests (about 23 percent
of the 34,700 investigations), relative to a total estimated overstay
population of 4 million to 5.5 million.[Footnote 14] About 26,700 of
those investigations (or 77 percent) resulted in one of three
outcomes.[Footnote 15] In 9,900 investigations, evidence was uncovered
indicating that the suspected overstay had departed the United States.
In 8,600 investigations, evidence was uncovered indicating that the
subject of the investigation was in-status (e.g., the subject filed a
timely application with the United States Citizenship and Immigration
Services (USCIS) to change his or her status and/or extend his or her
authorized period of admission in the United States). Finally, in
8,200 investigations, CTCEU investigators exhausted all investigative
leads and could not locate the suspected overstay.[Footnote 16] Of the
approximately 34,700 overstay investigations assigned by CTCEU
headquarters that ICE field offices closed from fiscal year 2004
through 2010, ICE officials attributed the significant portion of
overstay cases that resulted in a departure finding, in-status
finding, or with all leads being exhausted generally to difficulties
associated with locating suspected overstays and the timeliness and
completeness of data in DHS's systems used to identify overstays.
Further, ICE reported allocating a small percentage of its resources
in terms of investigative work hours to overstay investigations since
fiscal year 2006, but the agency expressed an intention to augment the
resources it dedicates to overstay enforcement efforts moving forward.
Specifically, 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. ICE attributed
the small percentage of investigative resources it reported 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 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. As a
result, ICE dedicated its limited resources to addressing overstays it
identified as most likely to pose a potential threat to national
security or public safety and did not generally allocate resources to
address suspected overstays that it assessed as non-criminal and low
risk. ICE indicated it may allocate more resources to overstay
enforcement efforts moving forward, and that it planned to focus
primarily on suspected overstays who ICE has identified as high risk
or who recently overstayed their authorized periods of admission.
ICE was considering assigning some responsibility for noncriminal
overstay enforcement to its Enforcement and Removal Operations (ERO)
directorate, which has responsibility for apprehending and removing
aliens who do not have lawful immigration status from the United
States. However, ERO did not plan to assume this responsibility until
ICE assessed the funding and resources doing so would require. ICE had
not established a time frame for completing this assessment. We
reported in April 2011 that 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. We recommended 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 officials
agreed with our recommendation and stated that ICE planned to identify
resources needed to transition this responsibility to ERO as part of
its fiscal year 2013 resource planning process.
More Reliable, Accessible Data Could Improve DHS's Efforts to Identify
and Share Information on Overstays:
DHS has not yet implemented a comprehensive biometric system to match
available information provided by foreign nationals upon their arrival
and departure from the United States. In 2002, DHS initiated the
United States Visitor and Immigrant Status Indicator Technology
Program (US-VISIT) to develop a comprehensive entry and exit system to
collect biometric data from aliens traveling through U.S. ports of
entry. In 2004, US-VISIT initiated the first step of this program by
collecting biometric data on aliens entering the United States. In
August 2007, we reported that while US-VISIT biometric entry
capabilities were operating at air, sea, and land ports of entry, exit
capabilities were not, and that DHS did not have a comprehensive plan
or a complete schedule for biometric exit implementation.[Footnote 17]
Moreover, in November 2009, we reported that DHS had not adopted an
integrated approach to scheduling, executing, and tracking the work
that needed to be accomplished to deliver a comprehensive exit
solution as part of the US-VISIT program. We concluded that, without a
master schedule that was integrated and derived in accordance with
relevant guidance, DHS could not reliably commit to when and how it
would deliver a comprehensive exit solution or adequately monitor and
manage its progress toward this end. We recommended that DHS ensure
that an integrated master schedule be developed and maintained. DHS
concurred and reported, as of July 2011, that the documentation of
schedule practices and procedures was ongoing, and that an updated
schedule standard, management plan, and management process that are
compliant with schedule guidelines were under review.
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
ports of entry to identify overstays. In April 2011, we reported that
DHS's efforts to identify and report on visa overstays were hindered
by unreliable data. Specifically, CBP does not inspect travelers
exiting the United States through land ports of entry, including
collecting their biometric information, and CBP did not provide a
standard mechanism for nonimmigrants departing the United States
through land ports of entry to remit their arrival and departure
forms. Nonimmigrants departing the United States through land ports of
entry turn in their forms on their own initiative. According to CBP
officials, at some ports of entry, CBP provides a box for
nonimmigrants to drop off their forms, while at other ports of entry
departing nonimmigrants may park their cars, enter the port of entry
facility, and provide their forms to a CBP officer. These forms
contain information, such as arrival and departure dates, used by DHS
to identify overstays. If the benefits outweigh the costs, a standard
mechanism to provide nonimmigrants with a way to turn in their arrival
and departure forms could help DHS obtain more complete and reliable
departure data for identifying overstays. We recommended that the
Commissioner of CBP analyze the costs and benefits of developing a
standard mechanism for collecting these forms at land ports of entry,
and do so to the extent that benefits outweigh the costs. CBP agreed
with our recommendation and in September 2011 stated that it planned
to complete a cost-effective independent evaluation of possible
solutions and formulate an action plan based on the evaluation for
implementation by March 2012.
Further, we previously reported on weaknesses in DHS processes for
collecting departure data, and how these weaknesses impact the
determination of overstay rates. The 9/11 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 Visa Waiver Program.[Footnote
18] 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
19] 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 the reliability of overstay data.
DHS concurred and 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 working with airlines to
improve the accuracy and completeness of data collection. Moreover, 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 20] 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.
In addition, in April 2011 we reported that DHS took several steps to
provide its component entities and other federal agencies with
information to identify and take enforcement action on overstays,
including creating biometric and biographic lookouts--or electronic
alerts--on the records of overstay subjects that are recorded in
databases. However, DHS did 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. Broadening the scope of electronic
lookouts in federal information systems could enhance overstay
information sharing. In April 2011, we recommended 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 these two categories of
overstays. Agency officials agreed with our recommendation and have
actions under way to address it. For example, agency officials stated
that they have met to assess the costs and benefits of creating
lookouts for those categories of overstays.
This concludes my prepared testimony statement. I would be pleased to
respond to any questions that members of the Subcommittee may have.
Contacts and Acknowledgments:
For further information regarding this testimony, please contact
Richard M. Stana at (202) 512-8777 or stanar@gao.gov. In addition,
contact points for our Offices of Congressional relations and Public
Affairs may be found on the last page of this statement. Individuals
who made key contributions to this testimony are Rebecca Gambler,
Acting Director; Anthony Moran, Assistant Director; Kathryn Bernet,
Assistant Director; Jeffrey Baldwin-Bott; Frances Cook; Kevin Copping;
and Taylor Matheson.
[End of section]
Related GAO Products:
Visa Waiver Program: DHS Has Implemented the Electronic System for
Travel Authorization, but Further Steps Needed to Address Potential
Program Risks. [hyperlink, http://www.gao.gov/products/GAO-11-335].
(Washington, D.C., May 5, 2011).
Overstay Enforcement: Additional Mechanisms for Collecting, Assessing,
and Sharing Data Could Strengthen DHS's Efforts but Would Have Costs.
[hyperlink, http://www.gao.gov/products/GAO-11-411]. (Washington,
D.C., April 15, 2011).
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., September 15, 2008).
Border Security: State Department Should Plan for Potentially
Significant Staffing and Facilities Shortfalls Caused by Changes in
the Visa Waiver Program. [hyperlink,
http://www.gao.gov/products/GAO-08-623]. (Washington, D.C., May 22,
2008).
Border Security: Stronger Actions Needed to Assess and Mitigate Risks
of the Visa Waiver Program. [hyperlink,
http://www.gao.gov/products/GAO-06-854]. (Washington, D.C., July 28,
2006).
Overstay Tracking: A Key Component of Homeland Security and a Layered
Defense. [hyperlink, http://www.gao.gov/products/GAO-04-82].
(Washington, D.C., May 21, 2004).
Border Security: Implications of Eliminating the Visa Waiver Program.
[hyperlink, http://www.gao.gov/products/GAO-03-38]. (Washington, D.C.,
November 22, 2002).
[End of section]
Footnotes:
[1] In order to qualify for the Visa Waiver Program, a country must
meet various requirements, such as entering into an 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. Visitors who are also 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.
[2] 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.
[3] 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). 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 Visa Waiver Program
apply online to establish eligibility to travel under the program
prior to departing for the United States (unless they are seeking
admission at a land port of entry, in which case eligibility is
established at the time of application for admission). Second, those
not eligible for the Visa Waiver Program and not otherwise exempt from
the visa requirement must visit the U.S. consular office to obtain a
visa. Upon arriving at a port of entry, nonimmigrants must undergo
inspection by U.S. Customs and Border Protection officers, who
determine whether or not they may be admitted into the United States.
[4] Pew Hispanic Center, Modes of Entry for the Unauthorized Migrant
Population (Washington, D.C.: May 22, 2006).
[5] The Immigration Reform and Control Act of 1986 (Pub. L. No. 99-
603, 100 Stat. 3359) created the Visa Waiver Program as a pilot in
1986. It became a permanent program in 2000 under the Visa Waiver
Permanent Program Act (Pub. L. No. 106-396, 114 Stat. 1637 (2000)).
[6] Pub. L. No. 110-53, § 711(d), 121 Stat. 266, 341-45.
[7] 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),Visa Waiver Program: DHS Has Implemented the
Electronic System for Travel Authorization, but Further Steps Needed
to Address Potential Program Risks, [hyperlink,
http://www.gao.gov/products/GAO-11-335] (Washington, D.C.: May 5,
2011); and Overstay Enforcement: Additional Mechanisms for Collecting,
Assessing, and Sharing Data Could Strengthen DHS's Efforts but Would
Have Costs, [hyperlink, http://www.gao.gov/products/GAO-11-411]
(Washington, D.C.: Apr. 15, 2011).
[8] See 8 U.S.C. § 1187(h)(3).
[9] In September 2010, the U.S. government began to charge ESTA
applicants a $14 fee when they applied for ESTA approval, including
$10 for the creation of a corporation to promote travel to the United
States and $4 to fund ESTA operations.
[10] See 8 U.S.C. § 1187(c)(2)(D), (F).
[11] For the HSPD-6 and PCSC agreements, DHS made the determination in
consultation with State and Justice. For the Lost and Stolen Passports
agreement, DHS made the determination in consultation with State.
[12] See Pub. L. No. 107-173, § 307(a)(2), 116 Stat. 543, 556.
[13] CTCEU also investigates suspected Visa Waiver Program overstays,
out-of-status students and violators of the National Security Entry-
Exit Registration System, a program that requires certain visitors or
nonimmigrants to register with DHS for national security reasons. For
the purpose of this discussion, these investigations are referred to
collectively as "overstay" investigations. In addition to CTCEU
investigative efforts, other ICE programs within Enforcement and
Removal Operations may take enforcement action against overstays,
though none of these programs solely or directly focus on overstay
enforcement. For example, if the Enforcement and Removal Operations
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.
[14] 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).
[15] Investigations resulting and not resulting in arrest do not total
34,700 due to rounding.
[16] 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.
[17] The purpose of US-VISIT is to provide biometric (e.g.,
fingerprint) identification--through the collection, maintenance, and
sharing of biometric and selected biographic data--to authorized DHS
and other federal agencies. See 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).
[18] 8 U.S.C. § 1187(c)(8).
[19] [hyperlink, http://www.gao.gov/products/GAO-08-967].
[20] 8 U.S.C. § 1376(b).
[End of section]
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