oversight

Visa Waiver Program: Additional Actions Needed to Mitigate Risks and Strengthen Overstay Enforcement

Published by the Government Accountability Office on 2012-03-27.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                             United States Government Accountability Office

GAO                          Testimony
                             Before the Subcommittee on Immigration,
                             Refugees, and Border Security, Committee
                             on the Judiciary, U.S. Senate

                             VISA WAIVER PROGRAM
For Release on Delivery
Expected at 10:00 a.m. EDT
Tuesday, March 27, 2012



                             Additional Actions Needed
                             to Mitigate Risks and
                             Strengthen Overstay
                             Enforcement
                             Statement of Rebecca Gambler, Acting Director
                             Homeland Security and Justice

                             and
                             Michael J. Courts, Acting Director
                             International Affairs and Trade




GAO-12-599T
                                              March 27, 2012

                                              VISA WAIVER PROGRAM
                                              Additional Actions Needed to Mitigate Risks and
                                              Strengthen Overstay Enforcement
Highlights of GAO-12-599T, a testimony
before the Subcommittee on Immigration,
Refugees, and Border Security, Committee on
the Judiciary, U.S. Senate



Why GAO Did This Study                        What GAO Found
DHS manages the Visa Waiver                   GAO has reported on actions that the Department of Homeland Security (DHS)
Program, which allows nationals from          has taken to improve the security of the Visa Waiver Program; but, additional
36 countries to apply for admission to        risks remain. In May 2011, GAO reported that DHS implemented the Electronic
the United States as temporary visitors       System for Travel Authorization (ESTA), required by the Implementing
for business or pleasure without a visa.      Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), and took
From fiscal years 2005 through 2010,          steps to minimize the burden associated with this requirement. DHS requires
over 98 million visitors were admitted        Visa Waiver Program travelers to submit biographical information and answers to
to the United States under the Visa           eligibility questions through ESTA prior to travel. DHS made efforts to minimize
Waiver Program. During that time
                                              the burden imposed by this requirement. For example, although travelers
period, the Department of State issued
                                              formerly filled out a Visa Waiver Program application form for each journey to the
more than 36 million nonimmigrant
visas for temporary travel to the
                                              United States, ESTA approval is generally valid for 2 years. However, GAO
country. DHS is also responsible for          reported that DHS had not fully evaluated security risks related to the small
investigating overstays—unauthorized          percentage of travelers without verified ESTA approval. In 2010, airlines
immigrants who entered the country            complied with the requirement to verify ESTA approval for almost 98 percent of
legally on a temporary basis but then         Visa Waiver Program passengers prior to boarding, but the remaining 2
overstayed their authorized periods of        percent—about 364,000 travelers—traveled under the program without verified
admission. The Implementing                   ESTA approval. In May 2011, GAO reported that DHS had not yet completed a
Recommendations of the 9/11                   review of these cases to know to what extent they pose a risk to the program and
Commission Act of 2007 (9/11 Act)             recommended that it establish timeframes for regular review. DHS concurred and
required DHS, in consultation with the        has since established procedures to review a sample of noncompliant
Department of State, to take steps to         passengers on a quarterly basis. Further, per the 9/11 Act, DHS requires Visa
enhance the security of the program.          Waiver Program countries to enter into three information-sharing agreements
This testimony is based on GAO                with the United States; however, DHS reported that only about half of the 36
products issued in September 2008;            countries have fully complied with this requirement as of March 2012, and many
April, May, and December 2011; and            of the signed agreements have not been implemented. DHS, with its interagency
selected updates from DHS as of               partners, established a compliance schedule to finalize these agreements by
March 2012 on the status of DHS’s             June 2012. Also, DHS and its interagency partners have developed measures
efforts to implement the 9/11 Act
                                              short of termination that could be applied on a case-by-case basis to countries
requirements and to address prior
                                              not meeting their compliance date.
GAO recommendations. As requested,
it addresses the following issues: (1)
challenges in the Visa Waiver                 In April 2011, GAO reported that federal agencies take actions against a small
Program, and (2) overstay                     portion of overstays, but improving planning could strengthen overstay
enforcement efforts.                          enforcement. Immigration and Customs Enforcement’s (ICE) Counterterrorism
                                              and Criminal Exploitation Unit (CTCEU) is responsible for overstay enforcement.
What GAO Recommends                           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
GAO made recommendations in prior
reports for DHS to, among other               expressed an intention to augment its overstay enforcement resources. From
things, strengthen plans to address           fiscal years 2006 through 2010, ICE reported devoting about 3 percent of its total
certain risks of the Visa Waiver              field office investigative hours to CTCEU overstay investigations. ICE was
Program and for overstay enforcement          considering assigning some responsibility for noncriminal overstay enforcement
efforts. DHS generally concurred with         to its Enforcement and Removal Operations (ERO) directorate, which
these recommendations and has                 apprehends and removes aliens subject to removal from the United States. In
actions planned or underway to                April 2011, GAO recommended that developing a time frame for assessing
address them.                                 needed resources ICE could strengthen ICE’s planning efforts. DHS concurred
                                              and stated that ICE planned to identify resources needed to transition this
View GAO-12-599T or key components.
For more information, contact Rebecca
                                              responsibility to ERO as part of its fiscal year 2013 resource planning process.
Gambler at (202) 512-6912 or
gamblerr@gao.gov.
                                                                                      United States Government Accountability Office
Chairman Schumer, Ranking Member Cornyn, 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. 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. 2 From fiscal years 2005
through 2010, more than 98 million visitors were admitted to the United
States under the Visa Waiver Program. During this same time period, the
Department of State issued more than 36 million nonimmigrant visas for
business travel, pleasure, tourism, medical treatment, or for foreign and
cultural exchange student programs, among other things. 3 In addition, the


1
 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.




Page 1                                                                        GAO-12-599T
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. 4

The Visa Waiver Program was established in 1986 to promote the
effective use of government resources and facilitate international travel
without jeopardizing U.S. security. 5 We have reported that the program
was designed to boost international business and tourism, and allow the
Department of State to shift its consular resources to posts with higher-
risk visa applicants. 6 However, we have also reported that the program
has inherent risks. 7 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 its security. 8 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,
the Enhanced Border Security and Visa Entry Reform Act of 2002
mandated that DHS evaluate and report on the security risks posed by




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
 GAO, Visa Waiver Program: Actions Are Needed to Improve Management of the
Expansion Process, and to Assess and Mitigate Program Risks, GAO-08-967
(Washington, D.C.: Sept. 15, 2008).
7
 GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the
Visa Waiver Program, GAO-06-854 (Washington, D.C.: July 28, 2006).
8
Pub. L. No. 110-53, § 711(d), 121 Stat. 266, 341-45.




Page 2                                                                    GAO-12-599T
each Visa Waiver Program country’s participation in the program at least
once every 2 years. 9

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 responsible 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. 10 It is also
based on our December 2011 testimony on these issues. 11 For these



9
    Pub. L. No. 107-173, § 307(a), 116 Stat. 543, 556.
10
  GAO-08-967; GAO, Visa Waiver Program: DHS Has Implemented the Electronic
System for Travel Authorization, but Further Steps Needed to Address Potential Program
Risks, 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, GAO-11-411 (Washington, D.C.: Apr. 15, 2011).
11
   GAO, Visa Waiver Program: Additional Actions Needed to Address Risks and
Strengthen Overstay Enforcement, GAO-12-287T (Washington, D.C.: Dec. 7, 2011).




Page 3                                                                     GAO-12-599T
                     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. In addition, this statement contains updates to selected
                     information from these reports on, for example, the number of signed
                     information-sharing agreements. For these updates, we examined
                     documentation from DHS as of March 2012. All of our work was
                     conducted 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.


                     In May 2011, we reported that DHS implemented the Electronic System
Further Steps Are    for Travel Authorization (ESTA) to meet a statutory requirement intended
Needed to Mitigate   to enhance Visa Waiver Program security and took steps to minimize the
                     burden on travelers to the United States added by the new requirement. 12
Risks in the Visa    However, DHS had not fully evaluated security risks related to the small
Waiver Program       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,




                     12
                      See 8 U.S.C. § 1187(h)(3).




                     Page 4                                                          GAO-12-599T
reasonable implementation time frames, and responsiveness to feedback,
but expressed dissatisfaction over ESTA fees paid by ESTA applicants. 13

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 about half of the countries had fully complied with this
requirement and many of the signed agreements have not been



13
  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.




Page 5                                                                       GAO-12-599T
implemented. 14 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. 15

•     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 March 2012, DHS reported that 24 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,


14
    See 8 U.S.C. § 1187(c)(2)(D), (F).
15
  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.




Page 6                                                                  GAO-12-599T
    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. DHS reported in March 2012 that the number of Visa
    Waiver Program countries meeting the PCSC requirement had risen
    to 23.

•   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 March 2012, all Visa Waiver Program countries were
    sharing lost and stolen passport information with the United States,
    and all of the countries had entered into Lost and Stolen Passport
    agreements, according to DHS.

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, the Enhanced Border Security and Visa Entry
Reform Act 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




Page 7                                                          GAO-12-599T
                             States. 16 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, in March 2012, reported that the
                             Visa Waiver Program Office had implemented a reporting process and
                             schedule to address delays in completing the biennial reviews and
                             associated reports.



Federal Agencies
Take Actions against a
Small Portion of the
Estimated Overstay
Population
ICE Investigates Few In-     As we reported in April 2011, ICE CTCEU investigates and arrests a
Country Overstays, but Its   small portion of the estimated in-country overstay population due to,
Efforts Could Benefit from   among other things, ICE’s competing priorities; however, these efforts
                             could be enhanced by improved planning and performance management.
Improved Planning            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


                             16
                              See Pub. L. No. 107-173, § 307(a)(2), 116 Stat. 543, 556.




                             Page 8                                                             GAO-12-599T
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. 17 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. 18 About 26,700 of those investigations (or
77 percent) resulted in one of three outcomes. 19 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. 20 Of
the approximately 34,700 overstay investigations assigned by CTCEU
headquarters that ICE field offices closed from fiscal year 2004 through


17
  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.
18
  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).
19
  Investigations resulting and not resulting in arrest do not total 34,700 due to rounding.
20
  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.




Page 9                                                                          GAO-12-599T
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


Page 10                                                           GAO-12-599T
                            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   DHS has not yet implemented a comprehensive biometric system to
Data Could Improve DHS’s    match available information provided by foreign nationals upon their
Efforts to Identify and     arrival and departure from the United States. In 2002, DHS initiated the
                            United States Visitor and Immigrant Status Indicator Technology Program
Share Information on        (US-VISIT) to develop a comprehensive entry and exit system to collect
Overstays                   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. 21 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.




                            21
                              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, GAO-07-1065 (Washington, D.C.:
                            Aug. 31, 2007).




                            Page 11                                                                        GAO-12-599T
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. 22 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



22
 8 U.S.C. § 1187(c)(8).




Page 12                                                            GAO-12-599T
admission. 23 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. 24 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


23
 GAO-08-967.
24
 8 U.S.C. § 1376(b).




Page 13                                                           GAO-12-599T
                  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.


                  Chairman Schumer, Ranking Member Cornyn, and Members of the
                  Subcommittee, this concludes my prepared statement. I would be
                  pleased to respond to any questions that you may have.


                  For further information regarding this testimony, please contact Rebecca
Contacts and      Gambler at (202) 512-6912 or gamblerr@gao.gov or Michael J. Courts at
Acknowledgments   (202) 512-8980 or courtsm@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 Kathryn H. Bernet, Assistant Director; Anthony Moran,
                  Assistant Director; Frances Cook; Nanette Barton; and, Wendy Johnson.




                  Page 14                                                         GAO-12-599T
Related GAO Products
             Related GAO Products




             Visa Waiver Program: DHS Has Implemented the Electronic System for
             Travel Authorization, but Further Steps Needed to Address Potential
             Program Risks. 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.
             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.
             GAO-08-967. (Washington, D.C., Sep 15, 2008).

             Border Security: State Department Should Plan for Potentially Significant
             Staffing and Facilities Shortfalls Caused by Changes in the Visa Waiver
             Program. GAO-08-623. (Washington, D.C., May 22, 2008).

             Border Security: Stronger Actions Needed to Assess and Mitigate Risks
             of the Visa Waiver Program. GAO-06-854. (Washington, D.C., Jul 28,
             2006).

             Overstay Tracking: A Key Component of Homeland Security and a
             Layered Defense. GAO-04-82. (Washington, D.C., May 21, 2004).

             Border Security: Implications of Eliminating the Visa Waiver Program.
             GAO-03-38. (Washington, D.C., Nov 22, 2002).




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