Order Code RS22446
May 22, 2006
CRS Report for Congress
Received through the CRS Web
Nonimmigrant Overstays:
Brief Synthesis of the Issue
Ruth Ellen Wasem
Specialist in Immigration Policy
Domestic Social Policy Division
Summary
As the 109th Congress debates immigration control (i.e., border security and interior
enforcement) and legal reform (i.e., temporary and permanent admissions), concerns
arise over the capacity of the Department of Homeland Security to identify and remove
temporary aliens who fail to depart when their visas expire. It is estimated that each year
hundreds of thousands of foreign nationals overstay their nonimmigrant visas or enter
the country illegally (with fraudulent documents or bypassing immigration inspections).1
The most recent published estimate based upon the March Supplement of the Current
Population Survey (CPS) is that 11.1 million unauthorized aliens were residing in the
United States in 2005.2 Reliable estimates of the number of nonimmigrant overstays are
not available, and sample estimates range from 31% to 57% of the unauthorized
population (depending on methodology). This report will be updated.
Background
Foreign nationals not legally residing in the United States who wish to come to the
United States generally must obtain a visa to be admitted.3 Under current law, three
departments — the Department of State (DOS), the Department of Homeland Security
(DHS) and the Department of Justice (DOJ) — each play key roles in administering the
1 CRS Report RS21938, Unauthorized Aliens in the United States: Estimates Since 1986, by Ruth
Ellen Wasem.
2 Pew Hispanic Center, The Size and Characteristics of the Unauthorized Migrant Population
in the U.S.: Estimates Based on the March 2005 Current Population Survey, by Jeffrey S. Passel,
Mar. 2006; available at [http://pewhispanic.org/files/reports/61.pdf].
3 Authorities to except or to waive visa requirements are specified in law, such as the broad
parole authority of the Attorney General under §212(d)(5) of the Immigration and Nationality Act
(INA) and the specific authority of the Visa Waiver Program in §217 of the INA.
Congressional Research Service ˜ The Library of Congress

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law and policies on the admission of aliens.4 DOS’s Bureau of Consular Affairs
(Consular Affairs) is the agency responsible for issuing visas, DHS’s U.S. Citizenship and
Immigration Services (USCIS) is charged with approving immigrant petitions, and DHS’s
Bureau of Customs and Border Protection (CBP) is tasked with inspecting all people who
enter the United States. DHS’s Immigration and Customs Enforcement (ICE) is the lead
agency on enforcing immigration law in the interior of the United States. DOJ’s Executive
Office for Immigration Review (EOIR) has a significant policy role through its
adjudicatory decisions on specific immigration cases.5
In the early 1990s, policy makers became especially concerned about nonimmigrant
overstays, specifically aliens who entered legally on a temporary basis and failed to
depart. At that time, nearly 2.7 million aliens had established legal status through the
provisions of the Immigration Reform and Control Act (IRCA) of 1986 (P.L. 99-603) —
a law which also significantly strengthened border and interior immigration enforcement
provisions. Nonetheless, demographers at the former Immigration and Naturalization
Service (INS) estimated that 3.5 million unauthorized aliens were residing in the United
States in 1990. By 1996, the estimated number of unauthorized alien residents was 5.8
million, with about 2.1 million (41%) estimated to have overstayed their nonimmigrant
visas. The remaining 59% were assumed to have entered the United States illegally.6
Visa Issuances. There are two broad classes of aliens that are issued visas:
immigrants and nonimmigrants.7 The documentary requirements for visas are stated in
§222 of the INA. Generally, the application requirements are more extensive for aliens
who wish to permanently live in the United States than those coming for visits. An alien
whose situation is straightforward and whose reason for seeking a visa is easily
documented generally has fewer forms and procedural hurdles than an alien whose
circumstances are more complex. There are over 70 USCIS forms as well as DOS forms
that pertain to the visa issuance process.8
For almost a decade, the Bureau of Consular Affairs has been issuing machine-
readable visas. Consular officers use the Consular Consolidated Database (CCD) to store
data on visa applicants. Since February 2001, the CCD stores photographs of all visa
applicants in electronic form, and more recently the CCD has begun storing fingerprints
of the right and left index fingers. In addition to indicating the outcome of any prior visa
4 Other departments, notably the Department of Labor (DOL), and the Department of Agriculture
(USDA), play roles in the approval process depending on the category or type of visa sought, and
the Department of Health and Human Services (DHHS) sets policy on the health-related grounds
for inadmissibility discussed below.
5 CRS Report RL33319, Toward More Effective Immigration Policies: Selected Organizational
Issues, by Ruth Ellen Wasem.
6 U.S. Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant
Population Residing in the United States, by Country of Origin and State of Residence: October
1992, unpublished paper by Robert Warren, 1994; and U.S. Immigration and Naturalization
Service, Estimates of the Unauthorized Immigrant Population Residing in the United States:
1990 to 2000, by Robert Warren, 2003.
7 CRS Report RL31512, Visa Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem.
8 USCIS forms are available at [http://uscis.gov/graphics/formsfee/index.htm].

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application of the alien in the CCD, the system links with other databases to flag problems
that may affect the issuance of the visa. The CCD is the nexus for screening aliens for
admissibility, notably screening on terrorist security and criminal grounds, and links with
the United States Visitor and Immigrant Status Indicator Technology (US-VISIT), DHS’s
automated entry and exit data system, at the time the visa is issued.9
Many foreign visitors enter the United States without visas through the Visa Waiver
Program (VWP), a provision of the INA that allows the visa requirements to be waived
for aliens coming from countries that meet certain standards, e.g., Australia, France,
Germany, Italy, Japan, New Zealand, and Switzerland.10 In addition to the VWP, there
are exceptions to documentary requirements for a visa that have been established by law,
treaty, or regulation — most notably with citizens of Canada.11 In 2003, the
Administration narrowed the circumstances in which the visa and passport requirements
are waived.12
Border Inspections. During February 2006, CBP inspected approximately 11.1
million U.S. citizens and 17.7 million foreign nationals at land, air, and sea ports of
entry.13 The INA requires the inspection of all aliens who seek entry into the United
States; possession of a visa or another form of travel document does not guarantee
admission into the United States.14 As a result, all persons seeking admission to the
United States must demonstrate to a CBP inspector that they are a foreign national with
a valid visa and/or passport or that they are a U.S. citizen.15 Border inspections are
extremely important because many foreign nationals enter the United States without visas,
notably as discussed above through the VWP.
Under the US-VISIT program, certain foreign nationals are required to provide
fingerprints, photographs or other biometric identifiers upon arrival in or departure from
the United States. CBP inspectors are currently taking a digital photograph and scanning
two fingerprints from each nonimmigrant alien who presents a visa at designated ports of
entry. Current DHS regulations exempt about 20 categories of individuals from providing
9 CRS Report RL31512, Visa Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem.
10 CRS Report RL32221, Visa Waiver Program, by Alison Siskin.
11 CRS Congressional Distribution Memorandum, Waiving the Documentary Requirements for
Visas and Passports to Enter the United States, by Ruth Ellen Wasem and Andorra Bruno, Oct.
27, 2003.
12 Passports and visas are now required for nationals of 54 British Commonwealth countries and
Ireland who are permanent residents of Canada or Bermuda and who previously had been waived
from the documentary requirements. Federal Register, vol. 68, no. 21, Jan. 31, 2003, pp. 5190-
5194.
13 U.S. Department of Homeland Security, Office of Immigration Statistics, Immigration Monthly
Statistical Report, available at [http://uscis.gov/graphics/shared/aboutus/statistics/msrnov05/
index.ht].
14 CRS Report RL32399, Border Security: Inspections Practices, Policies, and Issues,
coordinated by Ruth Ellen Wasem with Jennifer Lake, James Monk, Lisa Seghetti, and Stephen
Viña.
15 CRS congressional distribution memorandum, Western Hemisphere Travel Initiative, by Ruth
Wasem, Blas Nuñez-Neto, Susan Epstein, Todd Tatelman and Angeles Villerreal, Apr. 26, 2006.

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biometric identifiers upon entry to or exit from the United State; however, the CBP
inspector retains discretion to collect an alien’s biometric information.16

Emigration. With few exceptions, nonimmigrants are required to complete an I-94
Arrival/Departure Record when they arrive in the United States and when they depart. The
I-94 Arrival/Departure form is routinely collected from foreign nationals exiting at air and
sea ports, but reportedly it is infrequently collected at land ports. As a result, DHS does
not have reliable data on emigration from the United States.
Past Legislative Action on Nonimmigrant Overstays
Illegal Immigration Reform and Immigrant Responsibility Act. Congress
strengthened the anti-terrorism provisions in the INA and passed provisions that many
maintained would ramp up enforcement activities in the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) of 1996 (P.L. 104-208, Division C) and the
Antiterrorism and Effective Death Penalty Act (P.L. 104-132). In IIRIRA, there were
several provisions aimed at nonimmigrant overstays. Foremost, IIRIRA clarified that the
visa of a nonimmigrant is void as soon as the nonimmigrant alien overstays the period of
authorized stay. IIRIRA furthermore created new grounds of exclusion for aliens who are
unlawfully present in the United States. Those who are unlawfully present for more than
180 days but less than one year and who voluntarily depart the country are ineligible for
admission or reentry to the United States for three years. An alien unlawfully present for
one year or more who leaves or is removed from the United States is inadmissible for 10
years. These provisions are generally referred to as the three- and 10-year bars.
Finally, §110 of IIRIRA required the Attorney General to develop an automated
entry/exit system that among other things (1) collects a record of departure for every alien
departing the United States, and matches the record against the record of the alien’s
arrival in the United States; and (2) allows the identification, through online searches, of
nonimmigrants who remain beyond their period of authorized stay. As amended by
several subsequent laws, §110 of IIRIRA became the statutory basis of what is now the
US-VISIT system, which uses biometric identification (i.e., finger scans and digital
photographs) to check identity.17 US-VISIT exit pilot programs are now in place at
several air and sea ports.18
Enhanced Border Security and Visa Entry Reform Act of 2002. The
Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173) expressly
16 CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology Program (US-
VISIT), by Lisa Seghetti and Stephen Viña.
17 The Data Management Improvement Act of 2000 (P.L. 106-215) made substantial changes
regarding document requirements and the deadline for implementation.
18 CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology Program, by
by Lisa Seghetti and Stephen Viña, states: “According to many, implementing the exit process
of an automated entry and exit data system at most ports of entry will entail expanding the
infrastructure, which may be challenging at some ports. The Administration is currently in the
third phase of implementation of the system, and reportedly the exit process is operable at
selected ports of entry. The full implementation of the exit process will be one of the challenges
to the successful development of an automated entry and exit data system.”

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targeted the improvement of visa issuance and alien tracking procedures. Among its
provisions, it required the development of an interoperable electronic data system to be
used to share information relevant to alien admissibility and removability and the
implementation of an integrated entry-exit data system.19 It also required that all visas
have biometric identifiers.20 The act placed new requirements on the VWP, specifically
mandating that the government of each VWP country certify that it has established a
program to issue tamper-resistant, machine-readable passports with a biometric identifier.
The act also required all VWP countries to certify that they report in a timely manner the
theft of blank passports.
Legislation implementing the 9/11 Commission. The Intelligence Reform
and Terrorism Prevention Act (IRTPA) of 2004 (P.L. 108-458) included visa policy and
immigration-related provisions aimed at curbing nonimmigrant overstays as well as the
specific recommendations offered by the 9/11 Commission.21 The IRTPA required
accelerated deployment of the biometric entry and exit system to process or contain
certain data on aliens and their physical characteristics.22 The act also expanded the pre-
inspection program that places U.S. immigration inspectors at foreign airports, increasing
the number of foreign airports where travelers would be pre-inspected before departure
to the United States. Moreover, it required all individuals entering the United States
(including U.S. citizens and visitors from Canada and other Western Hemisphere
countries) to bear a passport or other documents sufficient to denote citizenship and
identity. The IRTPA required the establishment of new standards aimed at ensuring the
integrity for federal use of birth certificates, state-issued driver’s licenses and
identification cards, and social security cards. States may receive grants to assist them in
implementing the proposed birth certificate and driver’s license standards.23
Estimating Overstays
In the past few years it became apparent that the data on nonimmigrant overstays
were unreliable because these data were based upon the I-94 Arrival/Departure form.
Although the I-94 forms are usually collected from foreign nationals at air and sea ports,
the forms are infrequently collected from foreign nationals exiting at land ports.
Moreover, two major classes of nonimmigrants are exempt from filling out the I-94 when
19 §414 of the USA PATRIOT Act (P.L. 107-56) also encouraged the full implementation of the
integrated, automated entry and exit data system “with all deliberate speed and as expeditiously
as practicable.”
20 The Border Security and Visa Reform Act also required the establishment of electronic means
to monitor and verify the status of the students and exchange visitors. CRS Report RL32188,
Monitoring Foreign Students in the United States: The Student and Exchange Visitor Information
System (SEVIS), by Alison Siskin.
21 CRS Report RL32616, 9/11 Commission: Current Legislative Proposals for U.S. Immigration
Law and Policy, by Michael John Garcia and Ruth Ellen Wasem.
22 CRS RL32234, U.S. Visitor and Immigrant Status Indicator Technology Program, by Lisa
Seghetti and Stephen Viña
23 CRS Report RL32722, Intelligence Reform and Terrorism Prevention Act of 2004: National
Standards for Drivers’ Licenses, Social Security Cards, and Birth Certificates, by Todd
Tatelman.

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visiting the United States for business or pleasure: Canadian citizens admitted for up to
six months and Mexican citizens entering with a border crossing card (laser visa) along
the southwestern border who intend to limit their stay to less than thirty days and intend
not to travel beyond a set perimeter, generally 25 miles (75 miles in Arizona) from the
border.

The former INS attempted to estimate nonimmigrant overstays based on the
percentage overstays for each country that yielded an estimate that 2.3 million, or 33%,
of the 7.0 million unauthorized immigrants residing in the United States in January 2000
were nonimmigrant overstays.24 In 2004, the U.S. Government Accountability Office
(GAO) attempted to estimate the nonimmigrant overstays using samples based upon three
different methodologies. GAO concluded, “three alternative data sources on illegal
immigrants indicate varying — but uniformly substantial — percentages of overstays:
31%, 27%, and 57%.”25
In 2003, the INS demographer reached the following conclusion: “In general, the net
nonimmigrant overstay figures are more likely to be overestimates than underestimates
because the collection of departure forms for long-term overstays who depart probably is
less complete than for those who depart within the first year.”26 The 2004 GAO study,
however, drew two different conclusions: “The extent of overstaying is significant and
may be understated by DHS’s most recent estimate.”27
Estimates of nonimmigrant overstays residing in the United States are plagued by the
broader difficulties in measuring all three components of unauthorized migration — aliens
entering without inspection between ports of entry and aliens entering with fraudulent
documents, as well as aliens overstaying or otherwise violating the terms of legal entry.
The extent that some nonimmigrant overstays become “quasi-legal” aliens (e.g., those
who have LPR petitions pending or have sought relief from removal from an immigration
judge) further complicate the estimates.28
24 U.S. Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant
Population Residing in the United States: 1990 to 2000, by Robert Warren, 2003 (hereafter
Unauthorized Immigrant Population Residing in the United States: 1990 to 2000).
25 U.S. Government Accountability Office, Overstay Tracking: A Key Component of Homeland
Security and a Layered Defense, GAO-04-82, May 2004 (hereafter Overstay Tracking.
GAO-04-82).
26 Unauthorized Immigrant Population Residing in the United States: 1990 to 2000.
27 Overstay Tracking. GAO-04-82.
28 Unauthorized Immigrant Population Residing in the United States: 1990 to 2000.

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