Nonimmigrant Overstays: Overview and Policy Issues

Nonimmigrant Overstays: Overview and Policy Issues

Nonimmigrant Overstays: Overview and Policy November 21, 2023
Issues
Jill H. Wilson, Coordinator
Nonimmigrants are foreign nationals who are lawfully admitted to the United States for
Analyst in Immigration
a temporary period and specific purpose (e.g., tourism, study, work). They are required
Policy
to depart the United States prior to the end of their authorized period of admission,

unless they obtain an extension of stay or change of status that permits them to remain in
Andorra Bruno
the country. Those who do not depart in time are called overstayers. On average,
Specialist in Immigration
between 1% and 2% of nonimmigrant admissions result in an overstay each year,
Policy
representing approximately 650,000-850,000 overstays annually from FY2016 through

FY2022. An estimated 42% of the approximately 11 million unauthorized population
Abigail F. Kolker
living in the United States entered the country legally but overstayed their period of
Analyst in Immigration
admission.
Policy

The Immigration and Nationality Act (INA) includes provisions that are related to the
Audrey Singer
overstay issue, including those that govern the entry and exit of foreign nationals to and
Specialist in Immigration
from the United States, provide for consequences for overstaying a nonimmigrant
Policy
admission, and establish requirements for electronic immigration databases and the

collection of traveler biometric data.

For decades, Congress has been concerned about nonimmigrant overstays as a component of immigration control.
In 1996, Congress mandated the development of an automated entry-exit system that would collect and match
records of arrivals and departures and thereby identify nonimmigrant overstays. The issue garnered more intense
focus after the September 11, 2001, attacks in which at least three of the 19 hijackers were overstayers. Some
Members of Congress have expressed frustration that the entry-exit system is incomplete and that, because of this,
the government in unable to identify all overstays, particularly for travelers who exit via land ports. They have
also expressed dissatisfaction that only a fraction of the thousands of people who overstay each year are targeted
for enforcement by the Department of Homeland Security’s (DHS’s) Immigration and Customs Enforcement
(ICE) even though they are suspected by the government to be in the United States in violation of immigration
law.
The lack of a nationwide exit system has made direct, complete measurement of overstays challenging. U.S.
transportation hubs and ports of entry were not constructed with exit processing in mind. Given the historical lack
of a comprehensive exit-tracking system, the U.S. government and non-governmental researchers have used
estimation techniques over the years to study the number and characteristics of the overstay population. DHS has
made progress over the last decade in measuring overstays and has produced annual reports with overstay data
since 2016. These reports show variation in overstay rates by class of admission and origin country (including
whether the traveler is from a country that participates in the Visa Waiver Program (VWP)).
Federal statute confers immigration authorities with broad discretion to determine when it is appropriate to pursue
the removal of a foreign national who lacks a legal basis to remain in the country. Resource or humanitarian
concerns have typically led authorities to prioritize enforcement actions against subsets of the removable
population (e.g., those who have committed certain crimes or pose national security risks). Following the findings
of the 9/11 Commission Report, DHS designed an overstay enforcement model focused on those who are deemed
the highest risks to national security and public safety.
There has long been bipartisan agreement that overstays undermine the integrity of the U.S. immigration system.
Various measures exist in current policy to encourage the timely departure of nonimmigrants, and other ideas have
been proposed to disincentivize overstays. If policymakers choose to take steps to address nonimmigrant
overstays, they might consider policy options in the following areas: completion of the entry-exit system, federal
Congressional Research Service

Nonimmigrant Overstays: Overview and Policy Issues

agency roles in deterrence and prevention, interior enforcement, criminal penalties for overstayers, the E-Verify
employment verification system, VWP country eligibility, H-2A and H-2B visa country eligibility, foreign
diplomacy, visa bonds, wage withholding, increasing legal immigration pathways, and legalization.

Congressional Research Service

link to page 6 link to page 8 link to page 8 link to page 9 link to page 12 link to page 12 link to page 12 link to page 13 link to page 14 link to page 15 link to page 16 link to page 17 link to page 19 link to page 20 link to page 25 link to page 25 link to page 26 link to page 26 link to page 27 link to page 29 link to page 29 link to page 30 link to page 30 link to page 32 link to page 32 link to page 34 link to page 34 link to page 35 link to page 35 link to page 36 link to page 36 link to page 37 link to page 37 link to page 38 link to page 38 link to page 39 link to page 40 link to page 40 link to page 42 link to page 10 link to page 11 Nonimmigrant Overstays: Overview and Policy Issues

Contents
Introduction ..................................................................................................................................... 1
Nonimmigrant Entry/Exit Control ................................................................................................... 3
Permission to Travel to the United States ................................................................................. 3
Inspection and Admission to the United States ......................................................................... 4
Exit Control ............................................................................................................................... 7
Air Exit ............................................................................................................................... 7
Sea Exit ............................................................................................................................... 7
Land Exit ............................................................................................................................. 8
Historical Overstay Estimates ......................................................................................................... 9
Recent DHS Overstay Estimates ................................................................................................... 10
Recent Overstay Trends ........................................................................................................... 11
Trends in Total Overstays ................................................................................................. 12
Overstay Trends by Category of Admission ..................................................................... 14
Overstay Trends by Country ............................................................................................. 15
Immigration-Related Consequences of Overstaying ..................................................................... 20
Three- and 10-Year Bars on Admissibility .............................................................................. 20
Extension of Stay and Change of Status ................................................................................. 21
Adjustment of Status (LPR) .................................................................................................... 21
Overstay Enforcement ................................................................................................................... 22
Lead Generation and Prioritization ......................................................................................... 24
In-Country Leads and Enforcement Actions ..................................................................... 24
Out-of-Country Leads and Enforcement ........................................................................... 25
Data on Enforcement Actions ................................................................................................. 25
Policy Considerations .................................................................................................................... 27
Completion of the Exit System ............................................................................................... 27
DOS and CBP Roles in Deterrence and Prevention ................................................................ 29
Interior Enforcement ............................................................................................................... 29
Criminal Penalties ................................................................................................................... 30
E-Verify ................................................................................................................................... 30
Visa Waiver Program Country Eligibility ............................................................................... 31
Visa Refusal Rate versus Overstay Rate ........................................................................... 31
Removal of Countries from VWP Based on Overstay Rates ............................................ 32
Public Campaign to Deter VWP Overstays ...................................................................... 32
H-2A/H-2B Country Eligibility .............................................................................................. 33
Wage Withholding ................................................................................................................... 33
Visa Bonds .............................................................................................................................. 34
Foreign Diplomacy .................................................................................................................. 35
Increasing Legal Immigration Pathways ................................................................................. 35
Legalization ............................................................................................................................. 37

Figures
Figure 1. Nonimmigrant Admission Stamp Examples .................................................................... 5
Figure 2. Sample Electronic Form I-94 ........................................................................................... 6
Congressional Research Service

link to page 19 link to page 20 link to page 21 link to page 22 link to page 23 link to page 31 link to page 33 link to page 43 link to page 46 Nonimmigrant Overstays: Overview and Policy Issues

Figure 3. Total Overstays: Numbers and Rates ............................................................................. 14
Figure 4. Overstay Rates by Admission Category ......................................................................... 15
Figure 5. Overstay Totals and Shares by Country Grouping ......................................................... 16

Tables
Table 1. Ten Countries With the Highest Overstay Totals ............................................................. 17
Table 2. Ten Countries With the Highest Overstay Rates .............................................................. 18
Table 3. HSI CTLD Overstay Leads, FY2018-FY2022 ................................................................ 26
Table 4. Status of the Biographic and Biometric Exit System ...................................................... 28

Appendixes
Appendix. Nonimmigrant Visa Categories .................................................................................... 38

Contacts
Author Information ........................................................................................................................ 41

Congressional Research Service

Nonimmigrant Overstays: Overview and Policy Issues

Introduction
Nonimmigrants are foreign nationals (aliens1) who are lawfully admitted to the United States for
a temporary period and specific purpose (e.g., tourism, study, work).2 Prior to the end of their
authorized period of admission, they are required to depart the United States unless they obtain an
extension of stay or change of status that permits them to remain in the country. Those who do not
depart on time are called overstayers.3 On average, between 1% and 2% of nonimmigrant
admissions result in an overstay each year, representing approximately 650,000-850,000
overstays annually from FY2016 through FY2022.4 While much attention over the years has been
focused on individuals who entered the United States surreptitiously, researchers estimate that
overstayers outnumbered illegal border crossers between 2008 and 2016.5 As of 2017, it was
estimated that about 5 million people—approximately 42% of the population residing in the
United States without authorization—had entered the country legally but overstayed their period
of admission.6
For decades, Congress has been concerned about nonimmigrant overstays as a component of
immigration control. In 1981, the Select Commission on Immigration and Refugee Policy
(SCIRP) cited nonimmigrant visa abuse as a concern and recommended the establishment of a
“fully automated system” to track nonimmigrant arrivals and departures from the United States.7
Another congressionally convened commission met during the 1990s—the U.S. Commission on
Immigration Reform (known as the Jordan Commission)—and noted, “Although overstayers
represent a minute portion of [nonimmigrants] admitted each year, they are a significant part of
the illegal immigration problem.”8 In the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA, P.L. 104-208, Division C), Congress mandated the

1 Alien is the term used in the Immigration and Nationality Act (INA) to mean anyone who is not a citizen or national
of the United States. It is synonymous with foreign national. See INA §101(a)(3) (8 U.S.C. §1101(a)(3)).
2 For more information, see CRS Report R45040, Immigration: Nonimmigrant (Temporary) Admissions to the United
States.
3 In this report, overstayer is used to refer to an individual nonimmigrant who remains in the United States beyond his
or her authorized period of stay, and overstay is used to refer to the act or event of overstaying. Visa overstays is a
misnomer because while the person may have used a visa (issued by the U.S. Department of State [DOS]) to travel to
the United States, the act of overstaying relates to the period of admission (as determined by U.S. Customs and Border
Protection [CBP]). Visa validity is the length of time for which a visa is valid for travel to the United States and is a
separate matter from the length of time that a nonimmigrant is authorized to stay in the country.
4 CRS analysis of the total overstay rates reported in annual U.S. Department of Homeland Security (DHS) Entry/Exit
Overstay Reports, FY2016-FY2022. The overstay rate is a ratio of events, not individuals. For example, an individual
nonimmigrant may enter the United States three times in a fiscal year. If, during the year, that individual leaves on time
twice but overstays once, the individual would add three expected departures to the denominator and one overstay to
the numerator. Similarly, the number of overstays is a count of events, not individuals.
5 Robert Warren, “Sharp Multiyear Decline in Undocumented Immigration Suggests Progress at U.S.-Mexico
Border, Not a National Emergency,” CMS Essays (New York: Center for Migration Studies, 2019).
6 According to the estimates, the other 58% entered the United States without being inspected by an immigration
official. This is referred to as entering without inspection (EWI). Robert Warren, “U.S. Undocumented Population
Continued to Fall from 2016 to 2017 and Visa Overstays Significantly Exceeded Illegal Crossings for the Seventh
Consecutive Year,” Journal on Migration and Human Security, vol. 7, no. 1 (2019), pp. 19-22; and Robert Warren and
Donald Kerwin, “The 2,000 Mile Wall in Search of a Purpose: Since 2007 Visa Overstays have Outnumbered
Undocumented Border Crossers by a Half Million,” Journal on Migration and Human Security, vol. 5, no. 1 (2017),
pp. 124-136. More recent estimates have not yet been produced, in part due to COVID-19-associated data anomalies.
7 Select Commission on Immigration and Refugee Policy, U.S. Immigration Policy and the National Interest, staff
report, Washington, DC, April 30, 1981, p. xxxiii.
8 U.S. Commission on Immigration Reform, Becoming an American: Immigration and Immigrant Policy, Washington,
DC, 1997.
Congressional Research Service

1

Nonimmigrant Overstays: Overview and Policy Issues

development of an automated entry-exit system that would collect and match records of arrivals
and departures and thereby identify nonimmigrant overstays. It also mandated the creation of a
system to monitor foreign students and exchange visitors in the United States.9
The overstay issue garnered more intense focus after the September 11, 2001 attacks in which at
least three of the 19 hijackers were overstayers.10 In 2001 and 2002, Congress mandated the
expansion of the monitoring system that came to be known as the Student and Exchange Visitor
Information System (SEVIS).11 Congress also amended the entry-exit system’s requirements and
deadlines on several occasions, including by adding a biometric component in 2001.12 Today, the
biometric entry system is said to be fully operationalized, whereas the biometric exit system is
still being implemented.13
Over the years, some Members of Congress have expressed frustration over the incomplete exit
system and the resulting inability to identify all overstays, particularly by those who exit via land
borders.14 They have also expressed dissatisfaction that only a fraction of the thousands of people
who overstay each year are targeted for enforcement by the U.S. Department of Homeland
Security’s (DHS’s) Immigration and Customs Enforcement (ICE) even though many are known
by the government to be in the United States in violation of immigration law.15 Overstays are part
of the ongoing debate among policymakers about immigration enforcement priorities at the
United States’ borders with Mexico and Canada, as well as in the interior of the country.
This report provides an overview of nonimmigrant overstays. It describes the processes by which
nonimmigrants obtain visas and are admitted to the United States and the legal consequences for
overstaying. It also analyzes recent overstay trends (including by visa category and country) and
current government enforcement and prevention efforts. It concludes with a discussion of policy

9 For more information on the legislative history of what is now called the Student and Exchange Visitor Information
System (SEVIS), see archived CRS Report RL32188, Monitoring Foreign Students in the United States: The Student
and Exchange Visitor Information System (SEVIS) (available to congressional clients upon request).
10 National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report: Final Report of the
National Commission on Terrorist Attacks Upon the United States (9/11 Report), July 22, 2004, footnote 33, p. 564.
The 9/11 Commission Report stated on p. 384, “For a terrorist, travel documents are as important as weapons.” A 2004
U.S. General Accounting Office report stated, “Together with other improvements, better information on overstays
might contribute to a layered national defense that is better able to counter threats from foreign terrorists.” U.S. General
Accounting Office, Overstay Tracking: A Key Component of Homeland Security and a Layered Defense, GAO-04-82,
May 2004, Highlights page. See also U.S. Congress, House Committee on Homeland Security, Subcommittee on
Border and Maritime Security, Ten Years after 9/11: Can Terrorists Still Exploit Our Visa System?, hearing, 112th
Cong., 1st sess., September 13, 2011, Serial No. 112-43; and U.S. Congress, House Committee on Homeland Security,
Subcommittee on Border and Maritime Security, From the 9/11 Hijackers to Amine El-Khalifi: Terrorists and the Visa
Overstay Problem, hearing, 112th Cong., 2nd sess., March 6, 2012, Serial No. 112–73.
11 The USA PATRIOT Act of 2001 (P.L. 107-56) and the Enhanced Border Security and Visa Reform Act of 2002
(P.L. 107-173). For an illustration of the current processes by which foreign students and exchange visitors are
screened and monitored, see CRS Infographic IG10039, Foreign Students: Screening and Monitoring.
12 For more information, see CRS In Focus IF11634, Biometric Entry-Exit System: Legislative History and Status.
13 For more information, see CRS Report R47541, Immigration: The U.S. Entry-Exit System.
14 See, for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime
Security, From the 9/11 Hijackers to Amine El-Khalifi: Terrorists and the Visa Overstay Problem, hearing, 112th
Cong., 2nd sess., March 6, 2012, Serial No. 112–73; U.S. Congress, House Committee on Homeland Security,
Subcommittee on Border and Maritime Security, Overstaying their Welcome: National Security Risks Posed by Visa
Overstays, hearing, 114th Cong., 2nd sess., June 14, 2016, Serial No. 114-75; and U.S. Congress, House Committee on
Homeland Security, Subcommittee on Border and Maritime Security, Visa Overstays: A Gap in the Nation’s Border
Security, hearing, 115th Cong., 1st sess., May 23, 2017, Serial No. 115-17.
15 Ibid.
Congressional Research Service

2

link to page 43 link to page 43 Nonimmigrant Overstays: Overview and Policy Issues

issues and related legislation. The Appendix includes a list of nonimmigrant visa categories and
data on recent visa issuances.
Nonimmigrant Entry/Exit Control
The Immigration and Nationality Act (INA)16 includes provisions to control the entry and exit of
foreign nationals to and from the United States, consequences for overstaying a nonimmigrant
admission, and requirements for electronic immigration databases and the collection of traveler
biometrics.
Permission to Travel to the United States
To travel to the United States, foreign nationals generally must first obtain a U.S. visa, which is
placed in the traveler’s passport. Foreign nationals apply for visas at U.S. embassies or consulates
abroad managed by the U.S. Department of State (DOS). There are two broad classes of visas
issued by DOS: (1) immigrant visas for foreign nationals coming to live permanently in the
United States, and (2) nonimmigrant visas for foreign nationals coming to visit the United States
temporarily. There are 24 major nonimmigrant visa categories and more than 80 specific types of
nonimmigrant visas, which are commonly referred to by the letter and numeral that denote their
subsection in the INA; for example, B-2 tourists, E-2 treaty investors, F-1 foreign students, H-1B
specialty occupation workers, J-1 cultural exchange visitors, or R-1 religious workers (see
Appendix). In FY2022, DOS issued 6.8 million nonimmigrant visas.17
A visa applicant is required to submit his or her photograph and fingerprints, as well as full name
(and any other name used or by which he or she has been known), age, gender, and date and place
of birth. Depending on the visa category, certain documents (e.g., birth certificates, marriage
licenses) must be certified by the proper government authorities. All visa applicants are subject to
national security reviews using the resources of multiple U.S. federal intelligence and law
enforcement agencies. Prospective nonimmigrants may be required to have physical and mental
examinations.18 These reviews are intended to ensure that aliens are not ineligible for visas or
admission under the INA Section 212(a) (8 U.S.C. §1184(a)) grounds of inadmissibility.19 A DOS
consular officer must be satisfied that the visa applicant is entitled to nonimmigrant status. The
burden of proof is on the applicant to establish eligibility for nonimmigrant status and the type of
nonimmigrant visa for which the application is made.20
Notably, Section 214(b) of the INA (8 U.S.C. §1184(b)) generally presumes that all foreign
nationals seeking admission to the United States intend to settle permanently; as a result, most
foreign nationals seeking to qualify for nonimmigrant visas must demonstrate that they are not

16 Act of June 27, 1952, ch. 477, as amended, codified at 8 U.S.C. §1101 et seq.
17 DOS, Report of the Visa Office 2022, “Table 1. Immigrant and Nonimmigrant Visas Issued at Foreign Service
Posts,” 2022. For nonimmigrant visa issuance trends, see CRS Report R45040, Immigration: Nonimmigrant
(Temporary) Admissions to the United States.
18 A consular officer may require an applicant for a nonimmigrant visa to undergo a medical examination if the officer
has reason to believe that the applicant may be ineligible for a visa under INA §212(a)(1), the health-related grounds of
inadmissibility.
19 The grounds of inadmissibility under INA Section 212(a) (8 U.S.C. §1182(a)) include health-related grounds,
criminal history, security and terrorist concerns, public charge (e.g., indigence), seeking to work without proper labor
certification, illegal entrants and immigration law violations, ineligibility for citizenship, and aliens who are unlawfully
present or have previously been removed.
20 22 C.F.R. §41.11(a). For information on eligibility requirements for various nonimmigrant visa categories, see CRS
Report R45040, Immigration: Nonimmigrant (Temporary) Admissions to the United States.
Congressional Research Service

3

Nonimmigrant Overstays: Overview and Policy Issues

coming to reside permanently.21 The Section 214(b) presumption is the most common basis for
rejecting nonimmigrant visa applications, accounting for three-quarters of ineligibility findings in
FY2019.22 There are three nonimmigrant categories for which dual intent is allowed, meaning
that the applicant is permitted to obtain or continue nonimmigrant status even if they plan to (or
have taken steps to) seek lawful permanent resident (LPR) status. Nonimmigrants seeking H-1B
visas (specialty occupation workers), L visas (intracompany transferees), or V visas
(accompanying family members) are exempt from the requirement to show that they are not
coming to the United States to live permanently.
Certain international travelers are eligible to travel to the United States without a visa. These
include nationals of the 41 countries participating in the Visa Waiver Program (VWP) who are
coming to the United States for visits not to exceed 90 days for business or pleasure.23 In addition,
citizens of Canada and Bermuda do not require a U.S. visa for most travel purposes.24 In FY2022,
there were 11.5 million VWP admissions, accounting for 25.6% of all Form I-94 nonimmigrant
admissions (see the next section for discussion of Form I-94).25
Inspection and Admission to the United States
A visa does not guarantee admission to the United States,26 but rather allows the visa holder to
travel to a U.S. port of entry (POE) and apply for admission. The INA requires the inspection of
all aliens who seek entry to the United States.27 Inspection is the formal process of determining
whether a noncitizen may lawfully enter the United States.28 During inspection, DHS’s U.S.
Customs and Border Protection (CBP) officers conduct brief interviews with travelers, examine
travel documents, and check travelers’ information against law enforcement databases.29 Officers
also verify travelers’ identities by comparing biographic information (e.g., from passports) and

21 The burden of proof is on the applicant to demonstrate to the consular officer that he or she is entitled to
nonimmigrant status and that his or her intended activities are consistent with the status for which he or she is applying.
(DOS, 9 Foreign Affairs Manual (FAM) §401.1-3(E)). For nonimmigrant classes that require maintenance of a
residence abroad, “the applicant must demonstrate permanent employment, meaningful business or financial
connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the
country of origin.” (DOS 9 FAM §401.1-3(F)(2)).
22 DOS, Report of the Visa Office 2019, “Table XX: Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for
Refusal Under the Immigration and Nationality Act).” Data for more recent years are affected by anomalies associated
with the COVID-19 pandemic.
23 VWP visitors are not eligible to work in the United States. For more information, see CRS Report RL32221, Visa
Waiver Program.
24 Certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands are also entitled to
travel to the United States as nonimmigrants without visas. In addition, citizens of certain countries are eligible for
visa-free travel for visits of up to 45 days to the U.S. territories of Guam and the Commonwealth of the Northern
Mariana Islands (CNMI) under the Guam-CNMI Visa Waiver Program. For more information and classes of
nonimmigrants who are exempt from the visa requirement, see 8 C.F.R. §212.1.
25 DHS, Office of Immigration Statistics, Yearbook of Immigration Statistics FY2022, “Table 25. Nonimmigrant
Admissions by Class of Admission: Fiscal Years 2013 to 2022.”
26 INA §221(h) (8 U.S.C. §1201(h)).
27 INA §235(a)(3) (8 U.S.C. §1225(a)(3)).
28 For more information on the inspection and admission process, see CRS Report R43356, Border Security:
Immigration Inspections at Ports of Entry.
29 Primary inspection (the first level of inspection) consists of a brief interview by an immigration inspector, a cursory
check of the traveler’s documents, and a query of law enforcement databases. Primary inspections are quick. However,
if the inspector suspects that the traveler may be inadmissible under the INA or is in violation of other U.S. laws, the
traveler is referred to a secondary inspection. During secondary inspections, travelers are more extensively questioned,
and travel documents are further examined.
Congressional Research Service

4

link to page 10
Nonimmigrant Overstays: Overview and Policy Issues

biometrics (e.g., fingerprints, digital photographs).30 CBP inspectors determine whether to admit
nonimmigrants (with or without visas) to the United States. As is the case when applying for a
visa, the burden of proof is on the applicant to establish eligibility for admission under the
nonimmigrant status for which he or she is applying.
When admitting a nonimmigrant, the CBP officer stamps the traveler’s passport or other travel
document with an admission stamp indicating the date and class of admission (e.g., B-1, F-1, J-1)
and the admitted until date (i.e., the date by which the nonimmigrant is required to depart the
United States absent an extension or change of status) (see Figure 1). For most nonimmigrant
classes of admission, CBP provides a specific date. Those admitted in A (diplomats), G
(representatives of international organizations), F (academic students), J (exchange visitors), and I
(media) nonimmigrant classes, however, are typically admitted for duration of status (D/S). D/S
refers to the time during which a foreign national is engaged in the program or activity for which
he or she was admitted. The authorized period of admission ends when the nonimmigrant has
accomplished the purpose for which he or she was admitted or is no longer engaged in authorized
activities pertaining to that purpose. For example, F-1 students admitted to study in four-year
degree programs are required to depart the United States 60 days after the program is completed,
unless they are pursuing practical training or another program of study, or have otherwise
extended their stay.
Figure 1. Nonimmigrant Admission Stamp Examples

Source: CRS (Jil Wilson; original images on file with the author.
Certain classes of nonimmigrants admitted to the United States are issued an I-94 Arrival-
Departure Record (Form I-94) upon admission (see Figure 2).31 Form I-94 documents the
nonimmigrant’s biographical information, country of citizenship, and passport number, as well as
the date and class of admission and the date on which the period of authorized admission ends (or
“D/S” if admitted for duration of status). This form serves as evidence of the terms of a
nonimmigrant’s admission. Nonimmigrants exempted from the I-94 requirement include
Canadians admitted as visitors for business or pleasure and Mexicans with border crossing cards,
who together constitute a majority of nonimmigrant admissions each year.32 Form I-94 used to be

30 In the past, fingerprints were the primary biometric used by CBP during primary inspection; now, facial recognition
technology is the primary biometric used for identity verification at POEs. According to CBP, “foreign travelers who
have traveled to the United States previously may no longer need to provide fingerprints, as their identity will be
confirmed through the touchless facial biometric process.” CBP, “CBP Completes Simplified Arrival Expansion at All
US Airports,” press release, June 2, 2022.
31 8 C.F.R. §235.1(h). CBP issues Form I-94W to nonimmigrants admitted under the VWP.
32 See 8 C.F.R. §235.1(h)(1) for a list of nonimmigrants not required to use Form I-94.
Congressional Research Service

5

Nonimmigrant Overstays: Overview and Policy Issues

issued in paper form, but CBP now issues an electronic version at air, sea, and land POEs.33
Nonimmigrants can access their electronic Form I-94 on CBP’s website or via the CBP One
mobile application.34 In FY2022, there were 44.9 million I-94 nonimmigrant admissions and an
estimated 96.8 million total nonimmigrant admissions.35
Figure 2. Sample Electronic Form I-94

Source: Image copied from https://www.uscis.gov/i-9-central/form-i-94.
Selected CBP Passenger Information Systems
The Advance Passenger Information System (APIS) is a CBP database containing information about inbound and
outbound air passengers and crew members. Air carriers submit passenger information to APIS prior to flight
departure. CBP uses APIS data to assist with the identification of high-risk and inadmissible passengers. CBP vets
passenger manifests against law enforcement, customs, and immigration screening databases and terrorist
watchlists.
CBP also adds passenger arrival and departure data to the Arrival and Departure Information System (ADIS)
biographic database. ADIS is a DHS database that col ects and maintains biographic arrival and departure
information on non-U.S. citizens traveling in and out of the United States. ADIS is maintained by CBP and the DHS

33 CBP used to staple a paper I-94 Form to the arriving traveler’s passport, and travelers were supposed to surrender
their I-94 upon departure, in part so that CBP could track exits and identify overstayers. In practice, however, this
system proved difficult to implement, and paper I-94 receipts often were not collected from departing travelers. In
2013, CBP discontinued issuing paper I-94 Forms for travelers arriving at air and sea ports and did the same at land
ports in 2021. In place of paper I-94 receipts for exiting air and sea travelers, CBP relies on carrier exit manifests
(passenger lists) to confirm passenger departures (see the “Exit Control” section). For more information on the use of
electronic Form I-94, see DHS, CBP, “Definition of Form I–94 To Include Electronic Format,” 78 Federal Register
18457-18473, March 27, 2013; and DHS, CBP, “Streamlining I-94 Issuance at the Land Border,” 87 Federal Register
15446-15448, March 18, 2022.
34 CBP One was launched in October 2020. For more information, see CRS Insight IN12166, CBP One Application:
Evolution and Functionality.
35 DHS, Office of Immigration Statistics, “Table 25. Nonimmigrant Admissions by Class of Admission: Fiscal Years
2013 to 2022,” Yearbook of Immigration Statistics FY2022. Admissions represent counts of events (i.e., arrivals), not
unique individuals. Multiple entries of an individual on the same day are counted as one admission. The majority of
short-term admissions from Canada and Mexico are excluded from this total.
Congressional Research Service

6

Nonimmigrant Overstays: Overview and Policy Issues

Office of Biometric Identity Management (OBIM) and is the main database used by DHS’s ICE to identify
suspected visa overstayers.
Exit Control
Though Congress mandated the creation of an automated entry-exit system in 1996,
implementing the exit portion of the system has been met with a number of challenges. Among
those, the U.S. government does not have a long history of collecting exit data from departing
travelers.36 As a result, DHS and its predecessor agency have faced inadequate air, sea and land
port infrastructure and staffing to implement exit data collection as required by existing law.37
Nevertheless, there have been meaningful developments in recent years, as discussed in the
sections below on air, sea, and land exit.
Air Exit
Travelers departing the United States by air present their boarding passes to airport gate agents.
This process allows air carriers to provide CBP with required electronic copies of final passenger
and crew manifests (via APIS) prior to the departure of all international flights from the United
States. These data must be provided prior to securing aircraft doors, and the airline must provide
information on who is on the aircraft at the time of departure (not simply who made a reservation
for that flight). Airlines are subject to fines for errors in reporting this information.
In addition, some airports have integrated biometric exit capabilities: CBP-owned cameras,
typically operated by airlines or airport gate agents, that take live photos of travelers at the exit
gates. Facial recognition technology compares the live photo with pictures in the gallery of
photos created from the flight’s manifest.38 If there is a match, the traveler can board the plane. If
there is no match, either the gate agent verifies identity manually or the traveler is directed to a
CBP officer stationed nearby, who either uses a handheld device to verify the traveler's identity
via fingerprints or manually checks the traveler’s documents.39
Sea Exit
Similar to air exit, CBP receives final passenger manifests from commercial sea carriers for all
departures from the United States. These manifests indicate who is aboard the vessels. CBP does
not currently use biometrics at sea exit.40

36 In contrast, Schengen Area European states, among other countries, have required for many years that people pass
through passport control booths not only upon admission to the Schengen area but also prior to their departure. For
more information, see European Commission, Migration and Home Affairs, “Schengen Area,” https://home-
affairs.ec.europa.eu/policies/schengen-borders-and-visa/schengen-area_en.
37 Government Accountability Office (GAO), Border Security: DHS Has Made Progress in Planning for a Biometric
Air Exit System and Reporting Overstays, but Challenges Remain, GAO-17-170, February 2017.
38 The gallery of photos is created from all associated facial images from DHS holdings (e.g., photographs from U.S.
passports, U.S. visas, CBP entry inspections, other DHS encounters) that correspond to passengers on the flight
manifest.
39 For more information, see CRS Report R47541, Immigration: The U.S. Entry-Exit System.
40 DHS, Privacy Impact Assessment for the Traveler Verification Service, November 14, 2018, p. 43; and GAO, Facial
Recognition Technology: CBP Traveler Identity Verification and Efforts to Address Privacy Issues, GAO-22-106154,
July 27, 2022, p. 3.
Congressional Research Service

7

Nonimmigrant Overstays: Overview and Policy Issues

Land Exit
Implementing an exit system at land ports is more difficult than in the air and sea environments
“due to the major physical, logistical, and operational obstacles involved with electronically
collecting an individual’s biographic and biometric data.”41 Most travelers who enter through land
POEs do so as pedestrians or in personally owned vehicles. There typically are not manifests or
reporting that may be sent to CBP in advance of departure.42 However, CBP has expanded its use
of the Biometric Exit Mobile (BE-Mobile) program at land POEs nationwide, allowing CBP
officers working pulse and surge operations to use mobile technology to create a biometric exit
record for a subset of departing travelers.43
Land Exit—Northern Border
At the northern border, the United States and Canada have an agreement, entitled Beyond the
Border, to exchange biographic entry data of those crossing between the two countries by land.44
Thus, an entry into Canada is recorded as an exit from the United States and vice-versa. CBP uses
these data to close the loop on a traveler’s entry when, for example, a traveler enters the United
States by air or sea but departs by land to Canada.45
Land Exit—Southern Border
The United States and Mexico launched an entry-exit information-sharing initiative in December
2017.46 A six-month pilot took place on the Mexican side of the San Ysidro POE near San Diego,
CA. During this pilot, Mexican immigration authorities collected entry data from a subset of
Mexican nationals crossing into Mexico. These data were sent to CBP to create an exit record
from the United States.47 The pilot is no longer active, having completed its role as a proof of
concept, and a full information-sharing agreement has not yet been implemented.48
Absent such an agreement, in some cases CBP is able to resolve unknown statuses of previous
entries with re-entries: in the absence of exit data, CBP closes the loop on a previous entry if and
when it records a re-entry by the same person. However, this does not provide CBP with the date
of the previous departure and thus might not always confirm that the individual departed by the
required date.

41 DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023, p. 6.
42 CBP sometimes receives manifests from private rail or bus lines, but providing them is voluntary for these
transportation providers (in contrast to air and sea carriers, which are required to send manifest data).
43 DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023, p. 6. Pulse and surge operations are short-term
enforcement operations that increase the frequency of outbound inspections at specific POEs, either randomly or based
on intelligence.
44 The agreement was signed in 2011. Initially, the two countries shared information only about third-country nationals
(including permanent residents of Canada and lawful permanent residents of the United States). In 2019, the agreement
expanded to include Canadian and U.S. citizens.
45 DHS, Fiscal Year 2020 Entry/Exit Overstay Report, September 30, 2021.
46 DHS, Privacy Impact Assessment for the United States-Mexico Entry/Exit Data Sharing Initiative, December 14,
2017, https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp-usmexicoentryexitdatasharinginitiative-
december2017.pdf.
47 The most recent information on results of the pilot is from June 2018. CBP and Mexico’s immigration authorities
shared 123,683 biographic records, and of those records CBP was able to successfully match over 53,000
events/encounters in ADIS (email to CRS from CBP, August 23, 2023).
48 Email to CRS from CBP, October 12, 2023.
Congressional Research Service

8

Nonimmigrant Overstays: Overview and Policy Issues

Historical Overstay Estimates
The lack of a nationwide exit system makes direct and complete measurement of overstays
impossible. U.S. POEs were not constructed with exit processing in mind. For example, U.S.
airports—unlike those in many countries—do not have spaces designated for processing travelers
leaving the country, and the land POE environment presents major obstacles to identifying all
departures (as described above).49
In the absence of a comprehensive exit-tracking system, the U.S. government and non-
governmental researchers have used surveys and estimation techniques over the years to study the
number and characteristics of the overstayer population. Estimation techniques involve
assumptions and uncertainties associated with counting the unauthorized population writ large
that have made precise estimates of overstayers difficult to generate and have resulted in a range
of estimates.50
One of the earliest measures of overstayers comes from a survey of unauthorized individuals who
obtained lawful permanent resident status under the 1986 Immigration Reform and Control Act
(IRCA, P.L. 99-603). This law allowed nearly 2.7 million individuals (out of an estimated total
unauthorized population of 3-5 million) to obtain LPR status.51 A 1992 report from the
Department of Justice’s (DOJ’s) Immigration and Naturalization Service (INS) estimated that
overstayers constituted 21% of the population legalized under IRCA.52 Subsequent analyses
generally estimated that overstayers have accounted for a relatively larger share of the
unauthorized population. Multiple estimates by INS in the 1990s attributed between 40% and
50% of the unauthorized population to overstays.53 In contrast, a 2003 INS estimate put the
January 2000 resident overstay population at one-third of 7 million unauthorized immigrants (2.3

49 See, for example, Marc R. Rosenblum and Faye Hipsman, Border Metrics: How to Effectively Measure Border
Security and Immigration Control, Migration Policy Institute, January 2016.
50 For a description of various methods used to produce such estimates and their related difficulties, see Robert Warren,
“Democratizing Data about Unauthorized Residents in the United States: Estimates and Public-Use Data, 2010 to
2013,” Journal on Migration and Human Security, vol. 2, no. 4 (2014), pp. 305-328; and Jeffrey S. Passel, “Measuring
Illegal Immigration: How Pew Research Center Counts Unauthorized Immigrants in the U.S.,” Pew Research Center,
July 12, 2019.
51 Nancy Rytina, IRCA Legalization Effects: Lawful Permanent Residence and Naturalization through 2001, paper
presented at The Effects of Immigrant Legalization Programs on the United States: Scientific Evidence on Immigrant
Adaptation and Impacts on U.S. Economy and Society, October 25, 2002.
52 This estimate was based on interviews with 83% of the population legalized under IRCA and weighted to represent
the entire legalized population. U.S. Department of Justice (DOJ), Immigration and Naturalization Service (INS),
Immigration Reform and Control Act: Report on the Legalized Alien Population, Washington, DC, 1992. Prior to the
creation of DHS in 2003, most immigration-related functions fell under the authority of the Attorney General.
53 See Robert Warren, INS, Statistics Division, “Estimates of the Undocumented Immigrant Population Residing in the
United States by Country of Origin and State of Residence as of October 1992,” 1994; DOJ, Office of the Inspector
General, Immigration and Naturalization Service Monitoring of Nonimmigrant Overstays, report I-97-08, Washington,
DC, 1997; Michael D. Cronin, Acting Associate Commissioner, Programs, INS, Testimony Regarding Nonimmigrant
Overstays before U.S. Congress, House Judiciary Committee, Subcommittee on Immigration and Claims, March 18,
1999; and DOJ, INS, and U.S. Department of Labor, Bureau of International Labor Affairs, The Triennial
Comprehensive Report on Immigration, 1999.
Congressional Research Service

9

link to page 13 link to page 27 Nonimmigrant Overstays: Overview and Policy Issues

million).54 In addition, a 2004 GAO report measured three small sample cohorts in which
overstayers accounted for 27%, 31%, and 57% of the unauthorized population.55
By the 2010s, visa overstayers were estimated to be the majority of individuals being added to the
unauthorized population (i.e., the flow of unauthorized persons).56 For example, in 2019, the
Center for Migration Studies estimated that the number of individuals overstaying exceeded the
number of those entering the country without inspection (EWI) from at least FY2010 through
FY2017,57 but that EWIs still constituted 58% of the unauthorized population in 2014 (i.e., the
stock of unauthorized persons).58 Researchers have not produced more recent estimates due to
data uncertainties associated with the COVID-19 pandemic.
Recent DHS Overstay Estimates
DHS has made progress over the last decade in measuring overstays through (1) improvements in
data integration (such as cross-referencing nonimmigrant applications for changes, extensions,
and adjustments of status) and (2) the expansion of exit data collection (such as records for
northern border land exits through the Beyond the Border information sharing agreement with
Canada [see the “Land Exit—Northern Border” section]).59
To identify an overstay, several pieces of information related to the entry and exit of a
nonimmigrant are necessary: (1) the date of admission to the United States; (2) the class of
admission (e.g., visa type), which is used to determine the authorized period of admission and
thus the date by which the nonimmigrant must depart; (3) whether the nonimmigrant applied for a
change, extension, or adjustment of status that would alter the required departure date; and (4) the
date of departure (or the lack of a departure record prior to the end of the authorized period of
admission). CBP’s Arrival and Departure Information System (ADIS) compiles this information
from various federal data systems to create a travel history for each person, allowing for
automated identification of potential overstays.60

54 DOJ, INS, Office of Policy and Planning, Estimates of the Unauthorized Immigrant Population Residing in the
United States: 1990 to 2000, January 2003, https://www.dhs.gov/xlibrary/assets/statistics/publications/
Ill_Report_1211.pdf.
55 GAO, Overstay Tracking: A Key Component of Homeland Security and a Layered Defense, GAO-04-82, May 2004,
p.10.
56 The flow measures changes over time (e.g., population increase per year) whereas the stock is a point-in-time
measurement (e.g., total population).
57 Robert Warren, “U.S. Undocumented Population Continued to Fall from 2016 to 2017, and Visa Overstays
Significantly Exceeded Illegal Crossings for the Seventh Consecutive Year,” Center for Migration Studies, January 16,
2019.
58 Robert Warren and Donald Kerwin, “The 2,000 Mile Wall in Search of a Purpose: Since 2007, Visa Overstays Have
Outnumbered Undocumented Border Crossers by a Half Million,” Journal on Migration and Human Security, vol. 5,
no. 1 (2017), pp. 124-136.
59 For more information on DHS’s progress in identifying and reporting overstays, see GAO, Department of Homeland
Security: Review of the Fiscal Year 2017 Entry/Exit Overstay Report, GAO-19-298R, February 22, 2019; GAO, Border
Security: DHS Has Made Progress in Planning for a Biometric Air Exit System and Reporting Overstays, but
Challenges Remain, GAO-17-170, February 2017; and DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21,
2023, pp. 7-8.
60 DHS, Privacy Impact Assessment for Arrival and Departure Information System (ADIS), DHS/CBP/PIA-024(c),
January 3, 2020, p. 3. For more information on how overstay leads are generated and what DHS does with them, see
the “Overstay Enforcement” section.
Congressional Research Service

10

Nonimmigrant Overstays: Overview and Policy Issues

Types of Overstays
DHS identifies two types of overstays:
•
Suspected in-country overstays occur when a nonimmigrant’s authorized period of admission expires and
DHS has no record of departure or change in status for him or her. These events are suspected because the
nonimmigrant may stil be in the United States or may have departed without DHS recording it.
•
Out-of-country overstays occur when DHS records a nonimmigrant departure after the authorized period
of admission expired.
Recent Overstay Trends
Since 2016, DHS has published annual overstay reports based on the information in ADIS that
provide direct—but not complete—measurement of overstays.61 The first report (for FY2015)
was limited to temporary visitors for business or pleasure—those arriving with B-1 or B-2 visas
and those traveling under the VWP—who entered the United States through an air or sea POE.
Subsequent annual reports added most other nonimmigrant categories including students,
exchange visitors, and temporary workers.62 None of the reports cover nonimmigrants who
entered through a land POE.
This section presents and analyzes data from the six most recent DHS annual overstay reports,
which cover seven fiscal years: FY2016-FY2022. DHS did not produce a separate report for
FY2021 due to the COVID-19 pandemic and related data comparability issues.63 For this reason,
we do not include them in our analysis. These reports provide numbers and rates of expected
departures and overstay events, broken out by admission category and traveler’s country of
nationality. As mentioned previously, they include nonimmigrant admissions by air and sea but
not land.
Impact of the COVID-19 Pandemic on International Travel and Overstays
The COVID-19 pandemic caused major disruptions in travel worldwide. According to the United Nations World
Tourism Organization (UNWTO), worldwide international tourism arrivals were 72% lower in 2020 than in
2019.64 Beginning in late March 2020, the Department of State (DOS) suspended routine visa services and
provided only mission-critical and emergency services worldwide. This had a significant impact on the provision of
visa-related services. DOS posts were able to resume limited services on a post-by-post basis beginning in July
2020, as local conditions allowed. Fewer visa issuances, combined with government-imposed travel restrictions,
resulted in fewer arrivals to the United States. International tourism arrivals to the United States were 76% lower
in FY2020 and 72% lower in FY2021 than in FY2019.65 The lower volume of arrivals was accompanied by a
corresponding drop in departures, as il ustrated by DHS’s FY2022 overstay report, which indicated that the
number of expected nonimmigrant departures that year was 56% lower than the pre-COVID-19 four-year

61 U.S. Department of Homeland Security, Entry/Exit Overstay Reports for FY2016 through FY2022,
https://www.dhs.gov/publication/entryexit-overstay-report.
62 The nonimmigrant categories included in these reports made up 97% of air and sea arrivals. The categories excluded
from the analyses in the reports are diplomats, representatives of foreign media, crewmembers, aliens in transit, and
Section 1367 special protected classes. See the appendices of these reports for complete lists of included and excluded
categories.
63 DHS provided FY2021 data as an appendix in its FY2022 report. FY2022 report is available at https://www.dhs.gov/
sites/default/files/2023-07/23_0707_FY22_FY23_CBP_Integrated_Entry_Exit_Overstay_Report.pdf.) Prior years are
available at https://www.dhs.gov/publication/entryexit-overstay-report.. DHS’s FY2015 report is not included in CRS’s
analysis because it only included B nonimmigrants and thus is not directly comparable to subsequent reports, which
covered almost all other nonimmigrant categories.
64 United Nations World Tourism Organization, “Tourism Recovery Tracker,” https://www.unwto.org/tourism-data/
unwto-tourism-recovery-tracker.
65 Ibid.
Congressional Research Service

11

link to page 19 Nonimmigrant Overstays: Overview and Policy Issues

average.66 In contrast, the overstay total in FY2022 was nearly 23% higher than the pre-COVID-19 four-year
average.67
According to UNWTO, worldwide arrivals began to recover in 2022, when there were 39% fewer arrivals than
2019 (down from 72% fewer arrivals in 2020 than in 2019). Early 2023 data indicate a travel rebound: in the first
quarter, worldwide international arrivals reached about 80% of arrivals during the same time period in 2019. This
is consistent with findings of the Economist Intelligence Unit, which indicate that global travel rebounded in 2022
and 2023, but generally has not yet ful y recovered to pre-COVID-19 volume.68 In the first quarter of FY2023,
international tourist arrivals to the United States were at about 81% of 2019 levels. The increase in arrivals should
correspond with an increase in expected departures.
In addition to travel impacts, temporary immigration policies associated with the COVID-19 pandemic impacted
the measurement of overstays. For example, in FY2020 and FY2021, DHS’s U.S. Citizenship and Immigration
Services (USCIS) allowed travelers to apply for certain immigration benefits (e.g., extensions of stay, changes of
status) after their authorized periods of stay had expired, and CBP granted a significantly higher number of
satisfactory departures for VWP travelers who departed after their initial 90-day stay. These changes contributed to
the delay in DHS publishing overstay data for FY2021; DHS included FY2021 data as an appendix in its FY2022
report.69
Trends in Total Overstays
The total number of overstays averaged about 720,000 per year from FY2016 to FY2022.70 Prior
to the COVID-19 pandemic, FY2016 was the peak year with 739,478 overstays counted. The
number of overstays declined in the two fiscal years that followed but—apart from the dramatic
COVID-19-related drop in FY2021—have risen since FY2018 to a peak of 853,955 in FY2022
(see Figure 3). The vast majority (87% in total from FY2016 through FY2022) were in-country
overstays.
DHS calculates overstay rates by dividing the number of overstays by the number of expected
nonimmigrant departures. The total overstay rate from FY2016-FY2022 was 1.5%. The in-
country rate was 1.3%, whereas the out-of-country overstay rate was 0.2%.71 The annual rate
declined from FY2016 to FY2019 before rising considerably since then, peaking at 3.7% in
FY2022.
Two phenomena have occurred since FY2019 that may help explain the rise in overstay rates.
First, the COVID-19 pandemic, which hit in FY2020 and continued through FY2022, resulted in
a much lower volume of arrivals and departures from the United States.72 Nonimmigrants who
were already in the United States when the pandemic began may not have been able to leave the
country before their period of admission expired—due to travel restrictions or illness, for
example.

66 Calculated by CRS using data from annual DHS Entry/Exit Overstay Reports at https://www.dhs.gov/publication/
entryexit-overstay-report.
67 Ibid.
68 Economist Intelligence Unit, “Tourism Outlook 2023,” https://www.eiu.com/n/campaigns/tourism-in-2023/.
69 See page iii of DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023.
70 This excludes FY2021.
71 CRS calculation based on summing the number of (in-country or out-of-country or total) overstays in FY2016,
FY2017, FY2018, FY2019, FY2020, and FY2022 and dividing by the sum of expected departures (283,167,499) for
the same time period.
72 United Nations World Tourism Organization, “Tourism Recovery Tracker,” https://www.unwto.org/tourism-data/
unwto-tourism-recovery-tracker.
Congressional Research Service

12

Nonimmigrant Overstays: Overview and Policy Issues

Second, there was a sharp increase in migration from Venezuela, spurred by economic and
political crises there.73 Venezuelans with nonimmigrant visas to travel to the United States
contributed to the overstay rate increase since FY2019. In that year, Venezuela was responsible
for 1% of expected departures from the United States and 6% of total overstays; in FY2022,
Venezuelans constituted 2% of expected departures and 21% of overstays. Since early 2021,
Venezuelan nationals in the United States have been eligible for certain forms of relief from
removal due to the upheaval in their home country. Venezuelans present in the United States as of
January 20, 2021, were granted Deferred Enforced Departure (DED)74 until July 20, 2022, and in
March 2021, Venezuela was designated for Temporary Protected Status (TPS).75 TPS remains in
effect for Venezuelans who were present in the United States before July 31, 2023. DHS
estimated that 72% of Venezuelans who overstayed their visa in FY2022 were eligible for TPS.76
Despite potentially being covered by another lawful status, many Venezuelans were likely to have
been counted as overstayers due to the timing of the DED and TPS designations and the
corresponding application windows.77

73 For more information, see CRS In Focus IF10230, Venezuela: Political Crisis and U.S. Policy.
74 DED is a temporary, discretionary, administrative stay of removal granted to noncitizens from designated countries.
A DED designation emanates from the President’s constitutional powers to conduct foreign relations and has no
statutory basis. For more information, see CRS Report RS20844, Temporary Protected Status and Deferred Enforced
Departure.
75 TPS provides temporary relief from removal and work authorization to foreign nationals—regardless of their
immigration status—in the United States from designated countries experiencing armed conflict, natural disaster, or
other extraordinary circumstances that prevent their safe return. For more information, see CRS Report RS20844,
Temporary Protected Status and Deferred Enforced Departure.
76 CRS calculation of numbers reported by DHS, Fiscal Year 2022 Entry/Exit Overstay Report, p. 14 footnote 33 and p.
19 footnote 34.
77 For example, a Venezuelan nonimmigrant who was admitted to the United States prior to start of the pandemic may
have been expected to depart after Venezuela was designated for DED, but because of the DED designation was
allowed to remain in the United States. Unlike TPS, individuals who benefit from DED do not register for the status;
thus, USCIS would not have a record of such status (unless they applied for DED-related work authorization).
Congressional Research Service

13

link to page 20
Nonimmigrant Overstays: Overview and Policy Issues

Figure 3. Total Overstays: Numbers and Rates
FY2016-FY2020, FY2022

Source: U.S. Department of Homeland Security, Entry/Exit Overstay Reports for FY2016 through FY2022,
https://www.dhs.gov/publication/entryexit-overstay-report.
Notes: DHS did not release an FY2021-specific report, instead including the relevant numbers as an appendix to
the FY2022 report. DHS specified in this appendix that the accuracy of the FY2021 reported data was impacted
by temporary COVID-19-related travel policies. For this reason, FY2021 data are omitted from this figure.
Overstay Trends by Category of Admission
DHS annual overstay reports provide data on overstay events for three broad categories of
nonimmigrant admissions: (1) business or pleasure visitors (B-1/B-2 visa holders and VWP
travelers), (2) students and exchange visitors (F, M, and J nonimmigrants), and (3) other
nonimmigrants (mostly temporary workers). Data for travelers from Canada and Mexico are
provided separately because air and sea admissions represent a smaller portion of the Canadian
and Mexican travel population.
Visitors for business or pleasure made up the vast majority of overstays: 83% over the FY2016-
FY2022 period. Students and exchange visitors made up 9% of all overstays per year on average,
and other nonimmigrants accounted for an average of 8%. From FY2016 through FY2020,
overstay rates were higher for student/exchange visitors and other nonimmigrants than for
business/pleasure visitors. In FY2022, rates for the three categories were similar (Figure 4).
These trends were similar for both VWP and non-VWP countries.
Congressional Research Service

14

link to page 21
Nonimmigrant Overstays: Overview and Policy Issues

Figure 4. Overstay Rates by Admission Category
FY2016-FY2020, FY2022

Source: U.S. Department of Homeland Security, Entry/Exit Overstay Reports for FY2016 through FY2022,
https://www.dhs.gov/publication/entryexit-overstay-report.
Notes: “Business or pleasure” includes WB, WT, B-1, and B-2 admissions. “Student and exchange visitors”
includes F, M, and J admissions. “Other in-scope” includes A3, CW1, CW2, E1, E2, E2C, E3, E3D, G5, H1B,
H1B1, H1C, H2A, H2B, H2R, H3, H4, K1, K2, K3, K4, L1A, L1B, L2, NATO7, N8, N9, O1, O2, O3, P1, P2, P3,
P4, Q1, R1, R2, TN, TD, V1, V2, and V3 admissions.
DHS did not release an FY2021-specific report, instead including the relevant numbers as an appendix to the
FY2022 report. DHS specified in this appendix that the accuracy of the reported data was impacted by
temporary COVID-19-related travel policies. For this reason, FY2021 data are omitted from this figure.
Overstay Trends by Country
As a group, non-VWP countries have consistently had higher overstay totals and rates than VWP
countries (Figure 5). The average number of overstays from non-VWP countries from FY2016
through FY2022 was 439,000 annually, whereas the VWP average has been 130,000 annually
throughout the same period. During this time, VWP countries were underrepresented as a share of
total overstays. This is not surprising, given that in order to participate in the VWP, a country
must have a low visitor visa refusal rate, a measure correlated with a relatively low likelihood of
overstays.78 The 40 VWP participating countries accounted for an average of 43% of expected
departures from the United States from FY2016 through FY2022, but 18% of overstays.79

78 For more information on the VWP, including discussion about using the visitor visa refusal rate versus the overstay
rate as criteria for participation, see CRS Report RL32221, Visa Waiver Program.
79 In FY2022, there were 40 countries participating in the VWP. With the addition of Israel on September 27, 2023,
there are now 41 participating countries.
Congressional Research Service

15

link to page 22 link to page 23
Nonimmigrant Overstays: Overview and Policy Issues

Figure 5. Overstay Totals and Shares by Country Grouping
FY2016-FY2020, FY2022

Source: CRS calculation of data from U.S. Department of Homeland Security, Entry/Exit Overstay Reports for
FY2016 through FY2022, https://www.dhs.gov/publication/entryexit-overstay-report.
Notes: VWP stands for Visa Waiver Program and represents data from the countries that participated in the
VWP at the time. (For participating countries by year, see CRS Report RL32221, Visa Waiver Program.) Non-
VWP includes all other countries except Canada and Mexico. DHS did not release an individual FY2021 report,
instead including the relevant numbers as an appendix to the FY2022 report. DHS specified in this appendix that
the accuracy of the reported numbers was impacted by temporary COVID-19-related travel policies. For this
reason, FY2021 data are omitted from this figure and the “Total” bar does not include FY2021.
Due to their land borders with the United States, Canada and Mexico have unique entry and exit
patterns, and the data discussed in this report represent only a minority of nonimmigrant travelers
from the two countries. While the majority of travelers from Canada and Mexico enter via land,
the overstay data published by DHS represent only travelers who arrived by air and sea.80 Still, air
and sea travelers from both Canada and Mexico represented a large share of total expected
departures and overstay events from FY2016 through FY2020. In this five-year period, Canada
accounted for 18% of expected departures and 13% of total overstays, while Mexico accounted
for 6% of expected departures and 8% of total overstays. These patterns shifted after the
pandemic, with Canada’s share of expected departures and overstays in FY2022 dropping to 13%
and 2%, respectively. On the other hand, Mexico’s shares of both measures rose in FY2022, when
it accounted for 16% of expected departures and 15% of overstays.
In general, countries with the highest overstay numbers are not the same countries that have the
highest overstay rates. Table 1 lists the 10 countries with highest annual number of overstays in
FY2016, FY2017, FY2018, FY2019, FY2020, and FY2022, while Table 2 lists the 10 countries
with the highest overstay rates in the same years. For FY2016 through FY2020, there was no
overlap in the list of countries with the 10 highest overstay totals and those with the 10 highest
rates. Generally, countries with high overstay rates have a low volume of travel to the United
States, so a small number of overstays can still represent a large share of the country’s expected
departures. In contrast, countries with a high number of overstays often have a high number of

80 For further information, see annual DHS Entry/Exit Overstay Reports.
Congressional Research Service

16

Nonimmigrant Overstays: Overview and Policy Issues

expected departures so their overstay rate is low. In FY2022, Venezuela was the only country to
appear on both lists. As explained earlier, there has been a significant increase in migration from
Venezuela in recent years, spurred by the economic and political crises in that country. With few
exceptions, countries with the highest overstay totals have rates below 10% and countries with
the highest rates have annual totals below 2,000.81
Table 1. Ten Countries With the Highest Overstay Totals
FY2016, FY2017, FY2018, FY2019, FY2020, and FY2022
Country
Total
Rate
Country
Total
Rate
Country
Total
Rate
FY2016
FY2017
FY2018
Canada
125,984
1.5% Canada
101,281
1.1% Canada
92,542
1.0%
Mexico
52,958
1.7% Mexico
51,644
1.8% Mexico
49,353
1.6%
Brazil
43,248
2.0% Brazil
37,452
2.0% India
41,068
2.3%
China
39,061
1.6% Venezuela
32,129
5.6% Brazil
40,526
1.8%
India
30,399
2.1% United Kingdom
28,321
0.6% Venezuela
37,439
7.3%
United
Kingdom
26,244
0.5% India
28,174
1.7% China
33,420
1.1%
Venezuela
25,481
4.4% Colombia
24,064
2.6% Nigeria
32,197
15.4%
Germany
21,756
1.0% Nigeria
22,561
11.3% Colombia
23,819
2.4%
United
Colombia
21,413
2.4% China
20,466
0.7% Kingdom
16,951
0.3%
Dominican
Italy
17,297
1.4% France
17,974
0.9% Republic
15,995
3.5%
FY2019
FY2020
FY2022
Canada
83,674
0.8% Mexico
77,494
2.5% Venezuela
176,316
43.1%
Mexico
48,926
1.5% Canada
57,592
0.6% Mexico
131,120
3.6%
Brazil
48,299
2.0% Brazil
52,226
2.5% Colombia
64,869
5.5%
Venezuela
40,622
8.0% Colombia
35,490
3.7% China
31,819
7.2%
India
40,204
2.1% China
35,119
1.4% Spain
29,164
5.2%
China
32,190
1.1% India
34,493
1.8% India
28,478
3.6%
Dominican
Colombia
32,074
3.0% Venezuela
34,201
9.1% Republic
27,911
6.6%
Nigeria
19,349
10.1% United Kingdom
23,341
0.7% Canada
20,127
0.7%
United
Dominican
Kingdom
18,721
0.4% Republic
15,592
3.2% Brazil
19,820
4.1%
Spain
15,738
1.3% Philippines
13,907
4.1% Jamaica
19,548
9.9%

81 As shown in Tables 1 and 2, the exceptions in individual years are Venezuela in FY2022, which had 176,316 total
overstays at a rate of 43.1%; Jamaica in FY2022, which had 19,548 total overstays at a rate of 9.9%; and Nigeria in
FY2017 which had 22,561 overstays at a rate of 11.3%, FY2018 which had 32,197 overstays at a rate of 15.4%, and in
FY2019 which had 19,349 total overstays at a rate of 10.1%.
Congressional Research Service

17

Nonimmigrant Overstays: Overview and Policy Issues

FY2016, FY2017, FY2018, FY2019, FY2020, and FY2022
Country
Total
Rate
Country
Total
Rate
Country
Total
Rate
Six-Year Total (FY2016, FY2017, FY2018, FY2019, FY2020, FY2022)
Country
Total
Rate
Canada
481,200
1.0%
Mexico
411,495
2.2%
Venezuela
346,188
11.7%
Brazil
241,571
2.1%
India
202,816
2.1%
Colombia
201,729
3.4%
China
192,075
1.3%
United Kingdom
125,696
0.5%
Nigeria
112,590
11.2%
Spain
101,109
1.7%
Source: Tabulated by CRS using data from DHS Annual Overstay Reports.
Notes: Rates are rounded to the nearest tenth of a percentage point. Tables reflect totals across the three visa
categories reported by DHS. DHS did not release a FY2021-specific report, instead including the relevant
numbers as an appendix to the FY2022 report. DHS specified in this appendix that the accuracy of the reported
data was impacted by temporary COVID-19-related travel policies. For this reason, FY2021 data are omitted
from this table.
Table 2. Ten Countries With the Highest Overstay Rates
FY2016, FY2017, FY2018, FY2019, FY2020, and FY2022
Country
Rate
Total
Country
Rate
Total
Country
Rate
Total
FY2016
FY2017
FY2018
Burkina Faso
28.5%
1,520 Djibouti
41.5%
432 Djibouti
43.7%
185
Solomon
Eritrea
28.1%
721 Islands
30.0%
105 Yemen
34.5%
1,086
Djibouti
27.7%
112 Tajikistan
28.9%
165 Chad
31.0%
194
Bhutan
25.2%
150 Eritrea
28.5%
973 Eritrea
27.8%
607
Libya
24.2%
525 Chad
28.2%
197 Somalia
24.2%
37
Federated
States of
23.3%
10 Somalia
21.9%
56 Burundi
22.8%
306
Micronesia
Cabo Verde
20.2%
898 Liberia
21.9%
1,012 Palau
21.6%
8
Liberia
19.9%
834 Libya
19.5%
396 Libya
20.3%
212
Chad
19.3%
140 Laos
17.8%
408 South Sudan
19.9%
69
Laos
18.6%
298 Burkina Faso
17.0%
909 Syria
19.0%
1,491
Congressional Research Service

18

Nonimmigrant Overstays: Overview and Policy Issues

FY2016, FY2017, FY2018, FY2019, FY2020, and FY2022
Country
Rate
Total
Country
Rate
Total
Country
Rate
Total
FY2019
FY2020
FY2022
Chad
45.0%
363 Libya
44.2%
353 Djibouti
53.9%
83
Libya
40.6%
338 Chad
26.1%
171 Liberia
51.2%
464
Djibouti
36.1%
114 Yemen
24.1%
368 Burma
49.7%
1,349
Burundi
35.9%
455 Burundi
23.2%
278 Eritrea
48.6%
273
Mauritania
30.0%
312 Sudan
22.5%
790 Turkmenistan
45.9%
139
Eritrea
27.0%
333 Djibouti
21.6%
38 Venezuela
43.1% 176,316
Yemen
24.9%
436 Laos
21.1%
397 Congo
39.9%
166
(Brazzavil e)
Somalia
22.1%
29 Eritrea
20.3%
235 Chad
38.5%
165
Sudan
21.4%
962 Mauritania
19.8%
222 Laos
38.3%
174
Laos
17.2%
449 Liberia
17.0%
502 Somalia
38.3%
41
Six-Year Total (FY2016, FY2017, FY2018, FY2019, FY2020, FY2022)
Country
Rate
Total
Djibouti
38.4%
964
Chad
31.2%
1,230
Eritrea
28.3%
3,142
Libya
27.5%
2,133
Burundi
22.9%
1,629
Somalia
20.6%
214
Yemen
20.3%
3,389
Liberia
19.8%
4,029
Mauritania
19.8%
1,254
Laos
19.1%
2,070
Source: Tabulated by CRS using data from DHS Annual Overstay Reports.
Notes: Rates are rounded to the nearest tenth of a percentage point. Tables reflect totals across the three visa
categories reported by DHS. DHS did not release a FY2021-specific report, instead including the relevant
numbers as an appendix to the FY2022 report. DHS specified in this appendix that the accuracy of the reported
data was impacted by temporary COVID-19-related travel policies. For this reason, FY2021 data are omitted
from this table.
For most countries, overstay rates were higher in FY2022 compared to the pre-COVID-19 trend.
This is partially explained by the fact that some countries had an increased number of overstays
despite a low number of total expected departures relative to the pre-COVID-19 trend. Some
countries saw particularly large increases in FY2022. For example, Venezuela’s total overstay rate
increased from 8.0% in FY2019 to 43.1% in FY2022. In turn, the share of total overstays
attributed to Venezuela increased from 6% in FY2019 to 21% in FY2022. Colombia and Mexico
Congressional Research Service

19

link to page 27 Nonimmigrant Overstays: Overview and Policy Issues

both saw their overstay rates approximately double from FY2019 to FY2022. Colombia’s share of
total overstays increased from 5% to 8%, and Mexico’s share increased from 7% to 15%.82
DHS overstay reports also provide a breakdown of overstays by category of admission and
country. In FY2022, Venezuela and Mexico had the highest number of overstays among visitors
for business or pleasure, accounting for 23% and 17%, respectively, of the total among this
admission category. Among students and exchange visitors, China and India were outliers with
16% and 9% of the total overstays in this category. For the “other” admission category
(comprised mostly of temporary workers), Mexico and India each accounted for about 11% of
total overstays, and the Philippines accounted for 10%.83
Immigration-Related Consequences of Overstaying
Overstaying a nonimmigrant admission can result in several consequences under the INA. A
nonimmigrant who overstays the authorized period of admission is subject to removal from the
United States84 and is no longer eligible for the VWP. 85 Furthermore, the nonimmigrant visa of
someone who overstays is void beginning after the conclusion of the authorized period of stay,86
which means that it can no longer be used for travel to the United States. In addition, a noncitizen
admitted on the basis of a nonimmigrant visa who overstays is ineligible to be readmitted to the
United States as a nonimmigrant unless he or she obtains a new visa in his or her country of
nationality (or when the Secretary of State determines that extraordinary conditions exist).87
Overstaying a nonimmigrant admission can also affect a noncitizen’s ability to (1) be issued a
visa or be readmitted to the United States after leaving the country, (2) extend or change one’s
nonimmigrant status, or (3) adjust one’s status to that of an LPR. Each of these three
consequences is explained in the sections below.
Three- and 10-Year Bars on Admissibility
Persons who overstay a period of nonimmigrant admission accrue unlawful presence, which can
have consequences for their ability to be granted visas or be admitted to the United States in the
future. The INA establishes bars to U.S. admission for persons who are unlawfully present in the
country for more than 180 days and subsequently depart. Persons who depart after being
unlawfully present in the United States for more than 180 days but less than one year are subject
to a 3-year bar on admission. Those who depart after being unlawfully present for at least one
year are subject to a 10-year bar. There are certain exceptions to the accrual of unlawful presence
for purposes of the 3- and 10-year bars. For example, persons under age 18 and persons with
pending asylum applications (unless they have engaged in unauthorized employment) do not

82 Colombians and Mexicans were among the top nationalities of foreign nationals encountered by U.S. Border Patrol
crossing the Southwest border illegally in FY2022 and FY2023 (see CRS Report R47556, U.S. Border Patrol
Encounters at the Southwest Border: Fact Sheet). While such encounters do not contribute to overstay rates, both
trends are indicative of increased migration from those countries to the United States.
83 For more details, see DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023.
84 INA §237(a)(1)(C)(i) (8 U.S.C. §1227(a)(1)(C)(i)). Whether or not ICE pursues removal of an overstay depends on a
number of factors. See the “Overstay Enforcement” section.
85 INA §217(a)(7) (8 U.S.C. §1187(a)(7)).
86 INA §222(g)(1) (8 U.S.C. §1202(g)(1)).
87 INA §222(g)(2) (8 U.S.C. §1202(g)(2)). DOS interprets this requirement to apply to each and every subsequent
nonimmigrant visa for which an overstayer applies. See Charles Gordon et al., 2 Immigration Law and Procedure §
18.03 (Matthew Bender, rev. ed., 2023).
Congressional Research Service

20

Nonimmigrant Overstays: Overview and Policy Issues

accrue unlawful presence.88 In addition, nonimmigrants who file an application for a change or
extension of status before their status expires do not accrue unlawful presence for up to 120 days
while their application is pending (unless they have engaged in unauthorized employment).89
Nonimmigrants admitted for duration of status do not accrue unlawful presence unless and until
DHS, an immigration judge, or the Board of Immigration Appeals (BIA) finds a status violation
in the context of a request for an immigration benefit or during removal proceedings.90
Extension of Stay and Change of Status
Some nonimmigrants admitted to the United States might want to apply to DHS for an extension
of stay or change of status. For example, an H-1B temporary worker might request an extension
of stay if their employer wants to continue their employment, or a B-2 tourist might request to
change to F-1 student status in order to pursue an academic degree.
To be granted an extension of stay, a nonimmigrant must have maintained his or her status. If the
authorized period of stay ended before the nonimmigrant applied to extend his or her stay, then he
or she would be ineligible for an extension of stay.91 Certain classes of nonimmigrants are
ineligible for extensions of stay. These include VWP travelers and nonimmigrants admitted for
duration of status.92
To change from one nonimmigrant status to another, a person must have been lawfully admitted
as a nonimmigrant and must have maintained that status, including by not overstaying.93 Certain
classes of nonimmigrants—including VWP travelers—are not permitted to change from one
nonimmigrant classification to another.94
Adjustment of Status (LPR)
Overstaying a nonimmigrant admission has significant implications for a person’s ability to
obtain LPR status from within the United States (a process known as adjustment of status). Under
the INA, there are different ways in which a foreign national can obtain LPR status, the most
common being through a qualifying family relationship with a U.S. citizen or LPR, or a
relationship with a U.S. employer. In general, under the permanent family-based and
employment-based immigration systems, the sponsoring relative or employer files an immigrant
petition with DHS on behalf of the beneficiary. If the petition is approved and the beneficiary is in

88 INA §212(a)(9)(B) (8 U.S.C. §1182(a)(9)(B)).
89 INA §212(a)(9)(B)(iv) (8 U.S.C. §1182(a)(9)(B)(iv).
90 9 FAM 302.11.
91 Exceptions to this rule are found in 8 C.F.R. §214.1(c)(4). Furthermore, nonimmigrants who file to extend their
status prior to the expiration of their period of stay do not accrue unlawful presence for up to 120 days while the
application is pending, provided that they do not engage in unauthorized employment (INA §212(a)(9)(B)(iv) (8 U.S.C.
§1182(a)(9)(B)(iv)).
92 See 8 C.F.R. §214.1(c)(3). If F-1 or J-1 nonimmigrants admitted for duration of status have a change in
circumstances such that the end date of their program needs to be changed, the Designated School Official or
Responsible Officer in charge of their program can issue a revised USCIS Form I-20 (Certificate of Eligibility for
Nonimmigrant Student Status) or DOS Form DS-2019 (Certificate of Eligibility for Exchange Visitor Status (J-
Nonimmigrant)) with a new end date.
93 INA §248 (8 U.S.C. §1258). Nonimmigrants who file to change their status prior to the expiration of their period of
stay do not accrue unlawful presence for up to 120 days while the application is pending, provided they do not engage
in unauthorized employment (INA §212(a)(9)(B)(iv) (8 U.S.C. §1182(a)(9)(B)(iv)).
94 See INA Section 248 (8 U.S.C. §1258) for details.
Congressional Research Service

21

Nonimmigrant Overstays: Overview and Policy Issues

the United States, the beneficiary can apply to DHS to adjust status in accordance with INA
Section 245, if eligible, at the appropriate time.95
Adjustment of status under INA Section 245 (8 U.S.C. §1255) is subject to various restrictions.
With the exception of someone who qualifies as a battered immigrant under the INA, the Section
245 adjustment of status process is available only to a foreign national who has been inspected
and admitted or paroled into the United States.96 In addition, it is generally not available to a
person who subsequent to a lawful entry “is in unlawful immigration status on the date of filing
the application for adjustment of status or who has failed ... to maintain continuously a lawful
status since entry into the United States” or who has engaged in unauthorized employment.97
Most nonimmigrants who overstay their authorized period of admission would be excluded on
one or more of these grounds. Unless they qualify for an exception described below, they would
be ineligible to adjust status under Section 245. Another provision makes a person who is not in a
lawful nonimmigrant status ineligible for adjustment of status under the permanent employment-
based system.98
Section 245 contains exceptions to its various prohibitions for certain adjustment of status
applicants. These exceptions enable certain persons who have overstayed a nonimmigrant
admission to adjust status. Most notably, a person applying to adjust status under the family-based
system who is the spouse, unmarried minor child, or parent of a U.S. citizen99 is not subject to the
prohibitions described above relating to unlawful status and unauthorized employment.100 There
is a narrower exception that applies to most prospective employment-based immigrants. It allows
such persons to adjust status despite having engaged in some prohibited behavior (e.g., not
maintaining lawful status, not being in a nonimmigrant status, engaging in unauthorized
employment) provided that they have not done so for an aggregate period of more than 180
days.101
Overstay Enforcement
Federal statute provides immigration authorities with broad discretion to determine when it is
appropriate to pursue the removal of an alien who lacks a legal basis to remain in the country.
Resource and humanitarian concerns have typically led authorities to prioritize enforcement
actions against subsets of the removable population (e.g., those who have committed certain
crimes or pose national security risks).102 Following the findings of the 9/11 Commission Report,
DHS designed an overstay enforcement model focused on the people who are deemed the highest
risks to national security and public safety.103 Over the years, DHS has designed various strategies

95 For additional information about the permanent family-based and employment-based immigration systems, see CRS
Report R42866, Permanent Legal Immigration to the United States: Policy Overview.
96 INA §245(a) (8 U.S.C. §1255(a)).
97 INA §245(c)(2) (8 U.S.C. §1255(c)(2)).
98 INA §245(c)(7) (8 U.S.C. §1255(c)(7)).
99 Persons with these relationships to a U.S. citizen are termed immediate relatives in INA Section 201(b) (8 U.S.C.
§1151(b)). In the case of a parent, the U.S. citizen must be at least age 21.
100 INA §245(c)(2) (8 U.S.C. §1255(c)(2)).
101 INA §245(k) (8 U.S.C. §1255(k)).
102 See CRS Legal Sidebar LSB10578, The Biden Administration’s Immigration Enforcement Priorities: Background
and Legal Considerations.
103 See DHS, Deputy Under Secretary for Management, Comprehensive Strategy for Overstay Enforcement and
Deterrence, December 31, 2020, p. 2 (hereinafter, “Comprehensive Strategy for Overstay Enforcement, 2020”); and
(continued...)
Congressional Research Service

22

Nonimmigrant Overstays: Overview and Policy Issues

to prioritize enforcement actions. While enforcement priorities have varied by administration, the
overstayer population has never been a priority on its own, but rather by association with a
specified priority such as national security or public safety.104
In September 2021, DHS Secretary Alejandro Mayorkas announced new enforcement guidelines,
which include background on DHS’s use of prosecutorial discretion.105 These guidelines were
developed after President Biden revoked former President Trump’s immigration enforcement
guidelines in January 2021.106 In his memo explaining the new guidelines, Mayorkas wrote:
The fact [that] an individual is a removable noncitizen therefore should not alone be the
basis of an enforcement action against them. We will use our discretion and focus our
enforcement resources in a more targeted way. Justice and our country’ s well-being
require it.
By exercising our discretionary authority in a targeted way, we can focus our efforts on
those who pose a threat to national security, public safety, and border security and thus
threaten America’ s well-being. We do not lessen our commitment to enforce immigration
law to the best of our ability.
This is how we use the resources we have in a way that accomplishes our enforcement
mission most effectively and justly.107
The memorandum underscores that DHS lacks the resources to pursue the removal of all persons
in the United States subject to removal. Instead, ICE relies on these enforcement priorities to
guide the use of prosecutorial discretion in arrest and removal actions. ERO considers foremost
whether individuals present a threat to national security or public safety, drawing on intelligence

National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report: Final Report of the
National Commission on Terrorist Attacks Upon the United States (9/11 Report), July 22, 2004. Prior to 2003, no
resources had been committed exclusively to the enforcement of visa noncompliance (see Statement of John Morton,
Assistant Secretary, U.S. Immigration and Customs Enforcement, in U.S. Congress, House Committee on Homeland
Security, Visa Overstays: Can they be Eliminated?, hearing, 111th Cong., 2nd Sess., March 25, 2010, Serial No. 111-
60).
104 For information on ICE enforcement priorities during the Obama, Trump, and Biden Administrations, see
memoranda from the Obama Administration: U.S. Department of Homeland Security, U.S. Immigration and Customs
Enforcement, Memorandum to All ICE Employees, John Morton, Assistant Secretary, Civil Immigration Enforcement:
Priorities for the Apprehension, Detention, and Removal of Aliens, June 30, 2010, https://www.ice.gov/doclib/news/
releases/2010/civil-enforcement-priorities.pdf; and John Morton, Civil Immigration Enforcement: Priorities for the
Apprehension, Detention, and Removal of Aliens, U.S. Immigration and Customs Enforcement, March 2, 2011,
https://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf. March 2, 2011; memorandum during the
Trump Administration: U.S. Department of Homeland Security, Memorandum to Kevin McAleenan, Acting
Commissioner, U.S. Customs and Border Protection, Thomas D. Homan, Acting Director, U.S. Immigration and
Customs Enforcement, Lori Scialabba, Acting Director, U.S. Citizenship and Immigration Services, Joseph B. Maher,
Acting General Counsel, Dimple Shah, Acting Assistant Secretary for International Affairs, Chip Fulghum, Acting
Undersecretary for Management, from John Kelly, Secretary, Enforcement of the Immigration Laws to Serve the
National Interest, February 20, 2017, https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-
of-the-Immigration-Laws-to-Serve-the-National-Interest.pdf ( hereinafter, “Kelly memorandum”); and memorandum
during the Biden Administration: U.S. Department of Homeland Security, Memorandum to Tae D. Johnson, from
Alejandro N. Mayorkas, Secretary, Guidelines for the Enforcement of Civil Immigration Law, September 30, 2021
(hereinafter, “Mayorkas memorandum”).
105 See, Mayorkas memorandum.
106 See, Executive Order 13993, “Revision of Civil Immigration Enforcement Policies and Priorities,” 86 Federal
Register 7051, January 20, 2021 and Executive Order 13768, “Enhancing Public Safety in the Interior of the United
States,” 82 Federal Register 8799, January 25, 2017. Also see CRS Legal Sidebar LSB10578, The Biden
Administration’s Immigration Enforcement Priorities: Background and Legal Considerations.
107 See Mayorkas memorandum, p. 2.
Congressional Research Service

23

Nonimmigrant Overstays: Overview and Policy Issues

databases, immigration status, criminal history, and other factors.108 During this process,
individuals whom ICE identifies as enforcement priorities may be overstayers, but it is unlikely
that being an overstayer alone would trigger removal.
Federal Agency Roles in Overstay Enforcement109
ICE: ICE is the lead overstay enforcement agency and has primary responsibility for suspected in-country
overstays. ICE is responsible for identifying overstays, classifying priority targets, and carrying out enforcement
actions. Within ICE, HSI and ERO get referrals of suspected overstayers from CBP. HSI’s Counter Threat Lead
Development Unit investigates overstays who pose a potential danger to national security or public safety. ERO is
responsible for locating and taking enforcement action, including removal, if appropriate.
CBP: CBP is the lead on maintaining information on out-of-country overstays. At ports of entry, CBP col ects
biographic and biometric information on all arriving individuals. CBP is responsible for determining the admissibility
of arrivals and their authorized period of admission. The agency informs DOS and other entities, including ICE and
USCIS, of overstay violations.
USCIS: USCIS processes and adjudicates applications for immigration benefits such as extensions of stay, changes
of status, work authorization, and naturalization. In doing so, USCIS may determine that an applicant is
inadmissible or removable based on unlawful presence, such as by overstaying. If USCIS determines that someone
is removable, it may issue a notice to appear (NTA), a charging document that commences removal proceedings.
USCIS also shares information with ICE for investigation purposes by making referrals of individuals who may be
potential overstayers.
DOS: DOS accesses information from CBP that identifies overstayers through ADIS. This information may be
used to revoke a visa in advance of an out-of-country overstayer returning to the United States or to deny a visa
application from someone who has overstayed.
Lead Generation and Prioritization
On a daily basis, CBP’s ADIS creates an automated list of overstay leads by matching
nonimmigrant departure data and extensions of stay or status changes to arrival records.110 This
list is then vetted against CBP’s Automated Targeting System-Passenger (ATS-P), which applies
screening rules (as defined by ICE) to the suspected in-country overstay leads to determine the
level of priority for each system-identified overstay.111 DHS describes ATS-P as a “decision
support tool” that compares traveler information “against law enforcement, intelligence, and other
enforcement data using risk-based scenarios and assessments.”112 The list of in-country leads is
sent to ICE for vetting; CBP vets the list of out-of-country leads.113
In-Country Leads and Enforcement Actions
Suspected in-country overstayers are nonimmigrants whose initial authorized period of admission
has expired and for whom no departure, extension of stay, or change of status has been recorded.
ICE’s Homeland Security Investigations (HSI) Counter Threat Lead Development Unit (CTLD)

108 CRS email correspondence with ICE-ERO, October 15, 2023. “ICE enforcement priorities ensure ICE officers
undertake intensive review and analysis of a subject’s immigration status, criminal history, and aggravating/mitigating
factors before initiating enforcement action.”
109 Information in this text box draws from Comprehensive Strategy for Overstay Enforcement, 2020, p. 3.
110 DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023, p. 7. For more information on ADIS, see the text
box, “Selected CBP Passenger Information Systems”).
111 DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023, p. 8.
112 DHS, Privacy Impact Assessment Update for the Automated Targeting System, DHS/CBP/PIA-006(e), January 13,
2017.
113 Comprehensive Strategy for Overstay Enforcement, 2020, p. 4.
Congressional Research Service

24

link to page 25 Nonimmigrant Overstays: Overview and Policy Issues

oversees the program for in-country enforcement of overstays.114 CTLD sends in-country leads on
those who are suspected to pose a national security or public safety threat to HSI field offices for
further investigation.115 This includes coordinating with local authorities and other sources to
locate subjects and determine whether to pursue a criminal arrest and/or an administrative arrest
for further criminal or removal proceedings.116
HSI also works with relevant interagency partners, including the Federal Bureau of
Investigation’s (FBI’s), Joint Terrorism Task Force to assist in identifying overstays with potential
links to counterterrorism.117 It also works to identify individuals who are highly trained foreign
military students and are absent without leave, in support to the U.S. Department of Defense
(DOD).118 In addition, HSI works with the International Criminal Police Organization
(INTERPOL), focusing on overstayers wanted for serious crimes.119
In-country overstayers who do not meet the criteria for priority investigation are referred to the
National Criminal Analysis and Targeting Center (NCATC), part of ICE’s Enforcement and
Removal Operations (ERO).120 NCATC coordinates with CTLD for further vetting and review
and determines enforcement actions. ERO field offices are responsible for carrying out
appropriate enforcement actions such as arrest and removal.
Out-of-Country Leads and Enforcement
Out-of-country leads are generated for those who have a departure recorded, but their departure
occurred after the authorized period of admission ended. ADIS generates possible out-of-country
overstay leads, and CBP is responsible for daily vetting and review. If an overstay is confirmed,
the individual’s nonimmigrant visa will not be recognized as valid by CBP, or the individual may
lose eligibility to participate in the VWP.121 Additionally, the person’s reentry eligibility may be
subject to a 3- or 10-year bar (see the “Three- and 10-Year Bars on Admissibility” section).
Data on Enforcement Actions
DHS’s enforcement activities related to overstays include lead generation, arrests, indictments,
convictions, and removals. The enforcement statistics in DHS’s publicly available reports,
however, do not generally identify when these activities are directed at overstays. To better
understand overstay enforcement actions, CRS requested from DHS data on certain enforcement
actions against overstayers.122 In HSI’s capacity to identify leads of overstayers considered a
threat, CTLD analyzes records of over one million overstayers annually who may present a threat
to national security or public safety.123 CTLD prioritizes potential threat-level leads and sends

114 DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023. On February 24, 2022, the Counterterrorism and
Criminal Exploitation Unit (CTCEU) was renamed as Counter Threat Lead Development Unit (CLTD), see
https://studyinthestates.dhs.gov/2022/10/dsos-read-these-faqs-about-campus-sentinel.
115 Comprehensive Strategy for Overstay Enforcement, 2020, p. 8.
116 Ibid.
117 DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023, p. 9.
118 Ibid.
119 Comprehensive Strategy for Overstay Enforcement, 2020, p. iii.
120 Ibid, p. 5.
121 Ibid, p. 9.
122 CRS email correspondence with DHS, May 17, 2023.
123 DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023, p. 17, https://www.dhs.gov/sites/default/files/
2023-07/23_0707_FY22_FY23_CBP_Integrated_Entry_Exit_Overstay_Report.pdf.
Congressional Research Service

25

link to page 31 link to page 29 link to page 31 Nonimmigrant Overstays: Overview and Policy Issues

them to HSI field offices to investigate. CTLD sends other leads outside their scope of
investigation to ERO for further vetting. If the lead justifies further investigation, leads are passed
onto ERO field offices (as mentioned above).
The data presented in Table 3 indicate the results of overstay leads reviewed by CTLD and sent
to HSI field offices by fiscal year, and reflect only investigations that fell under CTLD’s scope
(see the “In-Country Leads and Enforcement Actions” section).124
Table 3. HSI CTLD Overstay Leads, FY2018-FY2022

FY2018
FY2019
FY2020
FY2021
FY2022
Potentially Viable Leads Reviewed by CTLD
Total
366,735
392,738
623,795
107,805
88,479
Leads Sent to HSI Field Offices by CTLD
Total
8,968
9,671
8,015
2,378
231
Arrests Reported by the Field
Total
1,808
1,819
1,147
428
106
Criminal
138
124
110
92
41
Administrative
1,670
1,695
1,037
336
65
Indictments
Total
117
123
66
71
36
Convictions
Total
57
83
63
27
32
Source: CRS email correspondence with DHS, May 17, 2023.
Notes: Data for FY2023(TD) run through March 24, 2023. The data for FY2018 through FY2022 reflect the
results of overstay leads reviewed and sent to the field by HSI National Security Division CTLD (formerly
CTCEU). These statistics are only reflective of investigations that fell under CTLD’s scope. Arrest, indictment,
and conviction statistics may reflect arrests, indictments, or convictions that occurred during a fiscal year that
were the result of a lead sent to the field or initiated by the field during a previous fiscal year. Administrative
arrests generally are arrests for civil violations of immigration laws, made in the interior of the United States.
These statistics refer to events, not individuals. There may be overlaps between categories whereby an individual
is captured in more than one category.
Table 3 presents data on overstay leads, arrests, indictments, and convictions. There was an
increase in the number of leads reviewed in FY2018 through FY2020, followed by a substantial
drop in FY2021and FY2022. Since FY2019, there has been a decline in the number of overstay
leads sent to HSI field offices, as well as in the number of arrests of overstayers. However, over
the entire period, the criminal arrest share of all overstay arrests increased from 10% or lower in
FY2018 through FY2020, to 21% in 2021, and 39% in FY2022.
The impact of the pandemic, including a drastic reduction in nonimmigrant arrivals and a pause in
certain enforcement actions, contributed to the decrease in the number of potentially viable leads
and arrests starting in FY2020.125 At the beginning of the COVID-19 pandemic, ICE announced
that it would “delay enforcement actions” for individuals who did not pose a public safety risk.

124 CRS was unable to obtain similar data for ERO’s enforcement actions, including arrests and removals.
125 DHS, ICE, “Updated ICE statement on COVID-19,” press release, March 18, 2020, https://www.ice.gov/news/
releases/updated-ice-statement-covid-19.
Congressional Research Service

26

Nonimmigrant Overstays: Overview and Policy Issues

The Biden Administration’s changes in enforcement priorities may have also played a role in a
reduction in the number of administrative arrests that began in FY2020.126
Policy Considerations
While attention to migration at the U.S.-Mexico border in recent years has overshadowed the
issue of nonimmigrant overstays, there has long been bipartisan agreement that the incidence of
overstays undermines the integrity of the U.S. immigration system.127 Various measures exist in
current policy to encourage the timely departure of nonimmigrants, and other ideas have been
proposed to disincentivize overstays. In addition, some observers have proposed allowing
nonimmigrant overstayers who meet certain criteria to adjust to lawful permanent status. If
policymakers choose to take steps to address nonimmigrant overstays, they might consider policy
options in the following areas:
• completion of the exit system
• DOS and CBP roles in deterrence and prevention
• interior enforcement
• criminal penalties
• E-Verify
• VWP country eligibility
• H-2A and H-2B country eligibility
• foreign diplomacy
• visa bonds
• wage withholding
• increasing legal immigration pathways
• legalization
Completion of the Exit System
As described previously, the congressional mandate to create an automated entry-exit system has
been met with a number of challenges over the years. The biometric entry system is said to be
fully operationalized, whereas the biometric exit system is still being developed and implemented.
Some Members of Congress have expressed frustration over the lack of completion of the exit
system and the resulting inability to identify all overstays, particularly by those who exit via land
POEs.128

126 See CRS Legal Sidebar LSB10578, The Biden Administration’s Immigration Enforcement Priorities: Background
and Legal Considerations.
127 See, for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime
Security, Ten Years after 9/11: Can Terrorists Still Exploit Our Visa System?, hearing, 112th Cong., 1st sess., September
13, 2011, Serial No. 112-43; U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and
Maritime Security, From the 9/11 Hijackers to Amine El-Khalifi: Terrorists and the Visa Overstay Problem, hearing,
112th Cong., 2nd sess., March 6, 2012, Serial No. 112–73; U.S. Congress, House Committee on Homeland Security,
Subcommittee on Border and Maritime Security, Overstaying their Welcome: National Security Risks Posed by Visa
Overstays, hearing, 114th Cong., 2nd sess., June 14, 2016, Serial No. 114-75; and U.S. Congress, House Committee on
Homeland Security, Subcommittee on Border and Maritime Security, Visa Overstays: A Gap in the Nation’s Border
Security, hearing, 115th Cong., 1st sess., May 23, 2017, Serial No. 115-17.
128 Ibid.
Congressional Research Service

27

link to page 33 link to page 13 Nonimmigrant Overstays: Overview and Policy Issues

The exit system is currently in varying degrees of completion depending on mode of travel (i.e.,
air, land, or sea) and the type of information gathered (i.e., biographic vs. biometric data).129 (See
Table 4.) Biographic data are captured on all commercial passengers exiting the United States by
air or sea, because the air and sea carriers are required to submit passenger manifests for
international departures via APIS. For land exit, the collection of biographic data at the northern
border is accomplished through the Beyond the Border partnership with Canada (discussed
previously in the “Land Exit—Northern Border” section); however, neither biographic nor
biometric data are collected for all departures at the southern land border.
Various pilot procedures have been put in place temporarily at the southern land border, including
kiosks that took photos of exiting pedestrians and matched them to entry photos.130 Congress
could dedicate more resources to DHS to evaluate and expand these pilots to develop a
comprehensive land exit system. As another option, Congress could mandate DHS to prioritize
working with the Mexican government to put in place an agreement similar to the Beyond the
Border agreement that the United States has with Canada.
Table 4. Status of the Biographic and Biometric Exit System
Mode of Travel

Biographic

Biometric
Air exit
Complete
Approximately 80% of in-scope
travelers
Sea exit
Complete
Incomplete
Land exit—northern border
Complete
Incomplete
pedestrians
Land exit—northern border
Complete
Incomplete
vehicles
Land exit—southern border
Incomplete; using re-entry data Incomplete
pedestrians
Land exit—southern border
Incomplete; using re-entry data Incomplete
vehicles
Sources: DHS, Traveler Verification Service, DHS/CBP/PIA-056, November 14, 2018, and Government
Accountability Office, Facial Recognition Technology: CBP Traveler Identity Verification and Efforts to Address Privacy
Issues, GAO-22-106154, July 27, 2022; email communication from CBP to CRS, April 12, 2023.
In 2021, DHS reported that it would begin a pilot at certain land ports along the northern border
to allow travelers to self-report their exits to Canada.131 Travelers would use the Self-Reporting
Mobile Exit (SRME) function within CBP One’s I-94 mobile application (which functions
similarly to CBP’s I-94 website). The SRME function would use geolocation to confirm a
traveler’s location outside the United States (up to one mile). The pilot was ongoing as of May
2023. If successful, CBP plans to expand the pilot to the southern border.132

129 For more information, see CRS Report R47541, Immigration: The U.S. Entry-Exit System.
130 CRS meeting with CBP OFO officials at the San Ysidro POE, August 28, 2023.
131 DHS, Privacy Impact Assessment for CBP One™, DHS Reference No. DHS/CBP/PIA-068, February 19, 2021, p.
14.
132 Ibid.
Congressional Research Service

28

Nonimmigrant Overstays: Overview and Policy Issues

DOS and CBP Roles in Deterrence and Prevention
Some policymakers have raised questions about what the U.S. government might do to more
effectively deter or prevent nonimmigrants from overstaying. Suggestions include stricter visa
adjudications by consular officers, particularly in countries with high overstay rates; verbal or
written warnings by consular officers and/or admissions officers regarding the consequences of
overstaying; and notifications sent to nonimmigrants ahead of their required departure dates.
Consulates regularly evaluate whether the foreign nationals they have approved for nonimmigrant
visas travel and return as expected. Adverse findings may result in higher visa refusal rates in the
future. Consular officers do not, as a general rule, warn visa applicants about the consequences of
overstaying; nor do CBP officers warn nonimmigrants at the time of admission.133 In addition to
stamping the passport with the expiration date of their authorized period of admission, CBP sends
notification emails to VWP and certain non-VWP travelers 10 days before their authorized period
of stay will expire. The same classes of travelers receive a second email if CBP has no evidence
of their departure and their period of stay has expired, notifying them that they have overstayed in
the United States.134 As mentioned previously, travelers who use the CBP One mobile application
can access their electronic I-94 Form, which tells them how many days they have left in their
authorized period of stay.
Legislative proposals have been introduced that would require nonimmigrant visa applicants to
acknowledge that they have been notified of the terms and conditions of their visas and the
consequences for violating such terms, including overstaying.135 DHS has proposed other
strategies to deter overstays, including enhancing its communications to nonimmigrant students
and the schools that host them, notifying more travelers before and after an overstay occurs, and
improving the collection of information from employers about H-2 workers who do not report to
work.136
Interior Enforcement
Some Members of Congress have expressed dissatisfaction that only a small fraction of the
thousands of overstayers residing in the United States are targeted for enforcement by ICE,
despite the fact that they are known by the government to be in violation of immigration law. In a
2015 hearing on overstays, Representative Martha McSally, Chair of the Subcommittee on Border
and Maritime Security of the Committee on Homeland Security, noted concerns about the size of
the overstay population in her opening remarks:
I am concerned that there are unidentified National security and public safety risks in a
population that large, which has historically been the primary means for terrorist entry to

133 Information from in-person conversations with DOS employees, July 25, 2023; and information from email to CRS
from CBP, April 18, 2023. CBP maintains an I-94 website that includes an FAQ with the question, “What happens if I
overstay my admission period without receiving an extension?” https://i94.cbp.dhs.gov/I94/#/faq
134 Email to CRS from CBP, April 18, 2023. The classes of nonimmigrants receiving email notifications are B1/B2
(business or tourism visitors), E-1 and E-2 (treaty traders and investors), K (intended spouses of U.S. citizens), L
(intracompany transferees), R (religious workers), and VWP travelers.
135 See, for example, S. 2192 in the 115th Congress.
136 DHS, Comprehensive Strategy for Overstay Enforcement and Deterrence: FY2019 Report to Congress, July 17,
2020.
Congressional Research Service

29

link to page 25 Nonimmigrant Overstays: Overview and Policy Issues

the United States. In order to tackle the challenge, the Department has to first identify those
who overstay their visa in the first place.137
Despite these broad concerns, DHS does not have the resources to locate and remove the five
million overstayers estimated to be living in the United States.138 Rather, as discussed previously,
DHS relies on a system whereby law enforcement components generate leads based on
information that identifies suspected overstays, and sifts out for possible enforcement those who
present the largest risk to the American public.139
Congress could choose to shift interior enforcement priorities to focus greater resources and
intelligence-gathering on the removal of overstayers. The Border Security, Economic
Opportunity, and Immigration Modernization Act (S. 744), as passed by the Senate in the 113th
Congress, sought to address the overstayer population by directing the Secretary of Homeland
Security to initiate removal proceedings for persons who were admitted to the United States as
nonimmigrants after the date of the enactment of the act and overstayed their authorized period of
admission. The HUMANE Act of 2019 (H.R. 2522), as introduced in the 116th Congress, included
a provision to make a person who overstayed for 30 days subject to detention and removal within
90 days. While no appropriations would have been authorized as part of either of these bills, they
would have required DHS to shift enforcement priorities to focus on overstay cases.
Criminal Penalties
Over the years, policymakers have proposed stricter penalties for nonimmigrants who overstay.
As explained in the “Immigration-Related Consequences of Overstaying” section, under current
law there are various immigration-related consequences for overstaying, but the act of
overstaying itself is not a crime. Bills have been introduced in recent congresses that would
establish criminal penalties, fines, and possible imprisonment for overstaying.140
E-Verify
A longstanding policy idea for addressing the unauthorized population in the United States is to
make it more difficult for unauthorized persons, including overstayers, to find paid employment.
Current law makes it unlawful to knowingly hire or continue to employ an unauthorized alien. It
also requires employers to examine documents presented by new hires to confirm their identity
and work authorization and to complete and retain employment eligibility verification (I-9)

137 U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime Security,
Overstaying Their Welcome: National Security Risks Posed by Visa Overstays, hearing, 114th Cong., 2nd sess., June 14,
2016, p. 1. The 9/11 terrorist attacks intensified Congress’s longstanding concern about the inability to identify, locate,
and remove overstayers.
138 Given resource constraints, DHS has adopted different approaches over the years for prioritizing immigration
enforcement actions against different classes of removable aliens. For more information, see CRS Legal Sidebar
LSB10578, The Biden Administration’s Immigration Enforcement Priorities: Background and Legal Considerations.
139 An example of how an overstay may be identified for removal is the high-profile case of an unlawfully present
Brazilian national convicted of murder who recently escaped prison while serving a life sentence in Pennsylvania. He
was eventually captured by law enforcement. The sister of the fugitive, an in-country overstayer, is being processed for
removal after she “chose not to assist” the authorities. See Miriam Jordan, “The Pennsylvania Fugitive: Why Wasn’t
He Deported?”, The New York Times, September 9, 2023.
140 See, for example, H.R. 2 (passed by the House) and H.R. 2640 in the 118th Congress.
Congressional Research Service

30

Nonimmigrant Overstays: Overview and Policy Issues

forms.141 The ready availability of genuine-looking fraudulent documents, however, has
effectively undermined the I-9 process.142
E-Verify, an electronic employment eligibility verification system, builds on the I-9 process by
requiring participating employers to submit information about their new hires (e.g., name, date of
birth) to be checked against information in Social Security Administration and DHS databases to
verify identity and work eligibility. E-Verify is largely voluntary, although it has mandatory
participants such as certain federal contractors.143 In addition, it is a temporary program that must
be regularly extended through reauthorization by Congress.
Legislation to make an E-Verify-like system permanent and mandatory has been introduced in
Congress over the years, although the provisions in the proposals have varied. These bills include
broad immigration measures, such as the Secure the Border Act of 2023 (H.R. 2), as passed by
the House in the 118th Congress, as well as stand-alone bills.144
Visa Waiver Program Country Eligibility
Visa Refusal Rate versus Overstay Rate
For a country to qualify for the VWP, it must have had a nonimmigrant visitor visa refusal rate of
less than 3% in the previous fiscal year or have averaged less than 3% over the previous two
fiscal years.145 This rate represents the proportion of individuals whose applications for tourist or
business visas (B visas) have been rejected by U.S. consular officials in their home countries.146
Some observers maintain that the nonimmigrant visa refusal rate is “not sufficiently probative” of
a country’s eligibility because it is based on decisions made by consular officers rather than on
the behavior of nonimmigrants.147 When the VWP was conceived, policymakers expected that the
number of nonimmigrants who overstayed the terms of their entry under this program would be a
better standard for future program participation, but it was not used at the time because of the lack
of reliable data on overstays. Now that overstay data have improved, there may be more support
for replacing the nonimmigrant visitor visa refusal rate with the overstay rate. Advocates of
expanding the VWP have also suggested that the refusal rate threshold could be raised and used in

141 INA §274A (8 U.S.C. §1324a).
142 Sadikshya Nepal, Moving Beyond Amnesty and Border Security as the Solutions for Undocumented Migration,
Bipartisan Policy Center, April 1, 2021.
143 For additional information on E-Verify, see DHS, “E-Verify,” https://www.e-verify.
144 See, for example, H.R. 319, as introduced in the 118th Congress.
145 INA §217(c)(2)(A) (8 U.S.C. §1187(c)(2)(A)).
146 From October 2008 to July 2009, the Secretary of Homeland Security, in consultation with the Secretary of State,
could waive the nonimmigrant visitor visa refusal rate (as was authorized in P.L. 110-53). The waiver authority allowed
DHS to admit countries into the VWP that had met all of the security requirements if they had a low overstay rate and a
declining nonimmigrant visitor visa refusal rate that was below 10% in the previous fiscal year. However, the Secretary
of Homeland Security’s authority to waive the nonimmigrant visitor visa refusal rate is suspended until the airline
passenger exit system is able to match an alien’s biometric information with relevant watchlists and manifest
information. The suspension of the waiver is required by P.L. 110-53, Section 711. For more information, see CRS
Report RL32221, Visa Waiver Program; and CRS Report R46300, Adding Countries to the Visa Waiver Program:
Effects on National Security and Tourism.
147 U.S. Congress, House Committee on the Judiciary, Visa Waiver Permanent Program Act, report together with
additional views to accompany H.R. 3767, 106th Cong., 2nd sess., H.Rept. 106-564 (Washington, DC: GPO, 2000), p.
32.
Congressional Research Service

31

Nonimmigrant Overstays: Overview and Policy Issues

conjunction with the overstay rate as criteria for joining the program.148 From the 110th Congress
to the 116th Congress, multiple bills were introduced that would have either replaced the
nonimmigrant visitor visa refusal rate criterion with the overstay rate or required its use in
conjunction with the visa refusal rate.149
Removal of Countries from VWP Based on Overstay Rates
A country can be terminated from the VWP if the Secretary of Homeland Security, in consultation
with the Secretary of State, determines that a country’s participation undermines U.S. law
enforcement, including immigration enforcement.
Argentina and Uruguay are former members of the VWP. Argentina joined in 1996, but the
United States removed it in 2002 after poor economic conditions in the country led to an increase
in the number of Argentine nationals entering the United States under the VWP and remaining
illegally past the 90-day period of admission.150 Uruguay joined in 1999, but it was removed in
2003 because a recession in Uruguay led to an increasing number of Uruguayan citizens entering
the United States under the VWP and violating the terms of their admission by working and
overstaying.151
Bills introduced in the past would have terminated a country’s participation in the VWP if the
country’s overstay rate exceeded 3%.152
Public Campaign to Deter VWP Overstays
As of December 2017, VWP countries that have an overstay rate greater than 2% must initiate a
public information campaign to educate their citizens about the conditions for admission to the
United States.153 If this does not reduce overstay violations, a country could be removed from the

148 Testimony of Steven Bucci, Director of the Douglas and Sarah Allison Center for Foreign and National Security
Policy at the Heritage Foundation, in U.S. Congress, House Committee on Homeland Security, Subcommittee on
Border and Maritime Security, Combatting Terrorist Travel: Does the Visa Waiver Program Keep Our Nation Safe?,
hearings, 114th Cong., 1st sess., March 17, 2015, H.Hrg, 114-8 (Washington, DC: GPO, 2015).
149 For example, the Jobs Originated through Launching Travel (JOLT) Act would have required countries to have both
a nonimmigrant visitor visa refusal rate and an overstay rate of less than 3% in order to participate in the VWP. The
JOLT Act was first introduced in the 112th Congress (S. 2233, S. 3199, and H.R. 5741), and the Senate Committee on
the Judiciary Subcommittee on Immigration, Refugees and Border Security held a hearing on promoting international
tourism in which they addressed the bill. Similar bills (also called JOLT Act) were introduced in the 113th, 114th, 115th,
and 116th congresses. Other bills that would have incorporated overstay rates in the determination of VWP country
participation include the Visa Waiver Program Enhanced Security and Reform Act (introduced in the 112th, 113th, and
114th congresses; H.R. 2686 and S. 1507 in the 114th Congress) and the Secure Travel and Counterterrorism Partnership
Program Act of 2011 (H.R. 959 and S. 497 in the 112th Congress). None of these bills were voted on.
150 In addition, many Argentine nationals were using the VWP to obtain entry to the United States solely for the
purpose of proceeding to the Canadian border and pursuing an asylum claim in Canada. According to Citizenship and
Immigration Canada, between 1999 and 2001 more than 2,500 Argentines filed refugee claims in Canada after
transiting the United States under the VWP. DOJ, INS, “Termination of the Designation of Argentina as a Participant
Under the Visa Waiver Program,” 67 Federal Register 7944, February 21, 2002.
151 In 2002, Uruguayan nationals were two to three times more likely than all nonimmigrants, on average, to have been
denied admission at the border. Uruguayan air arrivals had an apparent overstay rate of more than twice that of the
average apparent overstay rate for all air-arrival nonimmigrants. DOJ, INS, “Attorney General’s Evaluations of the
Designations of Belgium, Italy, Portugal, and Uruguay as Participants Under the Visa Waiver Program” 68 Federal
Register 10954, March 7, 2003.
152 See, for example, the Secure Travel and Counterterrorism Partnership Program Act of 2011 (H.R. 959 and S. 497 in
the 112th Congress).
153 DHS, “Secretary Kirstjen Nielsen Announces Targeted Security Enhancements to the Visa Waiver Program,” press
(continued...)
Congressional Research Service

32

Nonimmigrant Overstays: Overview and Policy Issues

program, as occurred with Argentina and Uruguay. In its FY2022 overstay report, DHS states
that, in consultation with the Department of State, it “will engage with countries exceeding this
threshold to undertake active efforts to reduce their overstay rates.”154 Congress could conduct
oversight to determine the extent to which these measures have been implemented and effective.
H-2A/H-2B Country Eligibility
Overstay rates are considered in determining whether countries are eligible to participate in the
nonimmigrant H-2A agricultural worker and H-2B nonagricultural worker visa programs. In
accordance with DHS regulations, the Secretary of Homeland Security, with the concurrence of
the Secretary of State, annually designates countries whose nationals are eligible to participate in
each program. Under the regulations, the factors to be considered in making these determinations
include measures related to the ability of the U.S. government to execute final orders of removal
against nationals of a country as well as “other factors as may serve the U.S. interest.”155 Among
the other factors specified by DHS in implementing this designation requirement are
“nonimmigrant visa overstay rates for nationals of the country (including but not limited to H–2A
and H–2B nonimmigrant visa overstay rates).”156
DHS has made it clear that these other factors can result in a country being excluded or removed
from the H-2A and/or H-2B eligibility list. In making its eligibility determinations, for some years
the department has specifically addressed how nonimmigrant overstay rates can lead to a country
losing its H-2A or H-2B designation. For example, the DHS notice designating countries for the
November 2021-November 2022 period included the following:
DHS believes that countries with more than 50 expected departures in a given fiscal year
whose nationals overstay at [a] rate of more than 10 percent (i.e., at least 5 overstays)
present an appreciable and considerable degree of risk to the integrity of these
nonimmigrant programs.157
As such, DHS, with the concurrence of DOS, generally will terminate the H-2A and/or H-2B
designations of countries that fit these criteria, absent countervailing evidence that it is not in the
U.S. interest to do so.158 In that same notice, DHS removed Mongolia from the list of H-2A-
eligible countries based on its estimate that in FY2019, 40.3% of Mongolian H-2A visa holders
had overstayed their authorized periods of admission. By contrast, DHS estimated that none of
Mongolia’s H-2B visa holders had overstayed in FY2019 and re-designated the country as
eligible for the H-2B program for the November 2021-November 2022 period.159
Wage Withholding
Another idea that has been suggested to incentivize nonimmigrant workers to leave the United
States at the end of their authorized periods of stay is to withhold a portion of their wages, which

release, December 15, 2017, https://www.dhs.gov/news/2017/12/15/secretary-kirstjen-nielsen-announces-targeted-
security-enhancements-visa-waiver.
154 DHS, Fiscal Year 2022 Entry/Exit Overstay Report, June 21, 2023, p. 13.
155 8 C.F.R. §214.2(h)(5)(i)F).
156 DHS, “Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H–2A and H–2B
Nonimmigrant Worker Programs,” 87 Federal Register 67930, November 10, 2022.
157 DHS, “Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H–2A and H–2B
Nonimmigrant Worker Programs,” 86 Federal Register 2689, 2690, January 13, 2021.
158 Ibid.
159 Ibid., pp. 2690-2691.
Congressional Research Service

33

Nonimmigrant Overstays: Overview and Policy Issues

they could receive only after an on-time departure and return to their home countries. These wage
withholding ideas typically have been limited to temporary workers who fill positions that do not
require formal higher education. They have been proposed in various contexts. For example,
wage withholding has been suggested as a component of a larger bilateral worker agreement with
Mexico for nonseasonal workers outlined in a 2020 Cato Institute white paper:
A small portion of each individual worker’s earnings would be paid into an account that
could be liquidated only upon the worker’s return to Mexico shortly after the end of his
visa. If the worker instead remains in the United States—lawfully or unlawfully—the
account would be forfeited.160
Wage withholding has also been included in various measures on nonimmigrant agricultural
workers introduced in Congress over the years. For example, bills proposing to amend the H-2A
visa program or authorize new temporary agricultural worker visas have included language to
establish a trust fund in the U.S. Treasury to provide “a monetary incentive” for nonimmigrant
workers “to return to their country of origin upon expiration of their visas.” These bills would
have required agricultural employers to withhold a portion of their nonimmigrant workers’ wages
and transfer those amounts into the trust fund. Once back in their home countries, the workers
could have applied for the withheld funds. As part of the application, they would have had to
show that they had “complied with the terms and conditions of the [visa] program.”161
Visa Bonds
Visa bonds can also serve as a financial incentive for nonimmigrants to depart the United States
on time. Current law authorizes consular officers to require visa bonds from certain applicants for
B or F nonimmigrant visas who are otherwise eligible for such visas if the consular officer is not
fully satisfied that the applicant will maintain status or depart on time.162 In practice, however,
these maintenance of status and departure bonds are rarely, if ever, used. DOS guidance to
consular officers discourages their use for several reasons, including (1) “the mechanics of
posting, processing, and discharging a bond are cumbersome, and many DHS offices are reluctant
to accept them”; (2) requiring a bond may be misinterpreted as asking for a bribe from the visa
applicant, and (3) a bond is not an effective guarantee of departure because some potential
migrants are willing to pay large sums of money to immigrate illegally.163
In 2019, then-President Trump issued a presidential memorandum related to nonimmigrant
overstays.164 In response, DOS announced a visa bond pilot program to “assess the operational
feasibility of posting, processing, and discharging visa bonds, in coordination with the
Department of Homeland Security (DHS), to help assess the burden on government agencies and
identify any practical challenges related to visa bonds.”165 The program was “designed to apply to
nationals of specified countries with high overstay rates to serve as a diplomatic tool to encourage

160 Michael Clemens, “Chapter 3: Shared Border, Shared Future: A U.S.-Mexican Bilateral Worker Agreement,” in 12
New Immigration Ideas for the 21st Century, ed. Alex Nowrasteh and David J. Bier, Cato Institute, May 13, 2020,
https://www.cato.org/white-paper/12-new-immigration-ideas-21st-century.
161 The quoted text appears in multiple bills, including, for example, H.R. 4065, as introduced in the 110th Congress;
H.R. 1773, as reported by the House Judiciary Committee in the 113th Congress; and H.R. 6417, as introduced in the
115th Congress. A related bill with similar wording (H.R. 2086) was introduced in the 117th Congress.
162 INA §221(g)(3) (8 U.S.C. §1201(g)(3)).
163 9 FAM 403.9-8(A).
164 Executive Office of the President, “Combating High Nonimmigrant Overstay Rates, Memorandum for the Secretary
of State, the Attorney General, and the Secretary of Homeland Security,” 84 Federal Register 19853-19854, April 29,
2019.
165 DOS, “Visas: Visa Bond Pilot Program,” 85 Federal Register 74875-74883, November 23, 2020.
Congressional Research Service

34

link to page 20 Nonimmigrant Overstays: Overview and Policy Issues

foreign governments to take all appropriate actions to ensure their nationals timely depart the
United States after making temporary visits.”166 No bonds were issued under the program, and it
expired after six months.
Foreign Diplomacy
According to DHS annual overstay reports, certain countries account for a high proportion of
nonimmigrant overstays, and others consistently have high overstay rates.167 Some observers
support raising the overstay issue with foreign governments and possibly imposing consequences
for countries whose nationals overstay at a high rate or number.168 Others make the case that the
United States should prioritize other foreign policy issues, and that foreign governments have
little control over whether their citizens overstay.169 Among other things, former-President
Trump’s 2019 presidential memorandum related to overstays directed the Secretary of State to
“engage with the governments of countries with a total overstay rate greater than 10 percent” in
order to “identify conditions contributing to high overstay rates among nationals of those
countries and methods to address those conditions.”170 It is unclear if any such engagements
occurred.
Increasing Legal Immigration Pathways
Many policymakers and other interested observers have long argued that effective strategies to
combat illegal immigration must include accessible pathways for foreign nationals to legally enter
and remain in the United States.171 For example, the 2022 Los Angeles Declaration on Migration
and Protection, which was endorsed by the United States and 20 other Western Hemisphere
countries, expressed support for “regular pathways” as a way to make migration “safer and more
orderly.”172 Although legal pathway ideas are often focused on preventing unlawful entries, they
may also offer a way to address overstays. Related proposals have included permanent and/or
temporary immigration options.
Some permanent legal pathway proposals are a response to the difficulties of obtaining LPR
status that stem from numerical limits on permanent immigration. These numerical caps prevent
most individuals without a college degree from qualifying for employment-based immigration

166 Ibid.
167 According to the reports, the countries with the highest overstay rates do not typically account for a high share of
total overstays; conversely, the countries with the highest number of overstays do not typically have the highest
overstay rates. See the “Overstay Trends by Country” section of this CRS report.
168 For example, the Visa Bond Pilot Program (described above in the “Visa Bonds” section) was described as “a
potential diplomatic tool to encourage foreign governments to take all appropriate actions to ensure that their nationals
timely depart the United States after making temporary visits.” DOS, “Visas: Visa Bond Pilot Program,” 85 Federal
Register 74875-74883, November 23, 2020.
169 Statement of David T. Donahue, Deputy Assistant Secretary of State for Consular Affairs, Department of State, in
U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime Security, From the
9/11 Hijackers to Amine El-Khalifi: Terrorists and the Visa Overstay Problem, hearing, 112th Cong., 2nd sess., March 6,
2012, Serial No. 112-73, p. 21.
170 Executive Office of the President, “Combating High Nonimmigrant Overstay Rates, Memorandum for the Secretary
of State, the Attorney General, and the Secretary of Homeland Security,” 84 Federal Register 19853-19854, April 29,
2019.
171 See, for example, Ronald Brownstein, “How legal immigration might solve two of America’s toughest problems,”
CNN, May 30, 2023, https://www.cnn.com/2023/05/30/politics/immigration-border-security-worker-shortages-fault-
lines/index.html.
172 White House, Los Angeles Declaration on Migration and Protection, June 10, 2022, https://www.whitehouse.gov/
briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
Congressional Research Service

35

Nonimmigrant Overstays: Overview and Policy Issues

and lead to long wait times for other applicants for family-based and employment-based
immigrant status.173 Some observers point out that these limits create incentives for foreigners to
travel to the United States on temporary visas and overstay.174 Some support expanding eligibility
for employment-based immigrant visas to more applicants without college degrees.175 Others
support raising numerical limits for existing visa categories to reduce wait times.176
Congress and the executive branch have taken action to allow beneficiaries of family-based
immigrant visa petitions to enter the United States on a temporary basis to await their permanent
visas. Such policies may reduce incentives for family members to use tourist or other
nonimmigrant visas to travel to the United States and overstay rather than waiting for years in
their home countries before being reunited with U.S. family members. In 2000, for example,
Congress created the K-3, K-4, and V nonimmigrant visas to reunite family members who had
been or could be separated for long periods during the process of immigrating to the United States
due to numerical limits on immigrant visas. These temporary visas allowed certain spouses and
children of LPRs and U.S. citizens to travel to and remain in the United States while waiting for
their permanent, family-based visa.177 In addition, DHS established special parole programs to
allow certain U.S. citizens and LPRs to apply for parole for their family members in Haiti or
Cuba.178 In July 2023, DHS announced that eligibility for “family reunification parole” was being
expanded to cover nationals of Colombia, El Salvador, Guatemala, and Honduras.179 If approved,
family members from those countries would be allowed to live and, in many cases, work in the
United States while they awaited LPR status.180
A recent example of a congressional proposal to create a new temporary pathway is the
Temporary Family Visitation Act, which has been introduced in the past three congresses.181 This
bill would create a B-3 nonimmigrant visa classification for the purpose of visiting relatives in the
United States for up to 90 days. Currently, many B-2 visa applicants desiring to visit relatives in
the United States are denied visas due to concerns that they will overstay their six-month
authorized period of admission.182 This bill seeks to avoid such visa denials by putting in place

173 Under current law, up to 10,000 employment-based visas per year are available for workers without college degrees
(out of a total of 140,000 employment-based visas available per year). In addition, family- and employment-based
preference immigrants are subject to a per-country cap, which limits the number of immigrants from any single country
to no more than 7% of the total annual limit. For more information, see CRS Report R47164, U.S. Employment-Based
Immigration Policy.
174 See, for example, Michael Clemens, Cindy Huang, and Jimmy Graham et al., Migration Is What You Make It: Seven
Policy Decisions that Turned Challenges into Opportunities, Center for Global Development, May 30, 2018.
175 See, for example, David J. Bier, “Ten Irrational and Infuriating Aspect of U.S. Legal Immigration,” Cato Institute,
August 9, 2017.
176 See, for example, Alex Nowrasteh, David J. Bier, Daniel Griswold, et. al, “12 New Immigration Ideas for the 21st
Century,” Cato Institute, May 13, 2020.
177 These visas were created in the Legal Immigration Family Equity Act (LIFE Act; P.L. 106-553), enacted on
December 21, 2000. No V visas have been issued since FY2007 because in order to qualify for a V visa, the LPR
spouse or parent had to have filed the petition for their spouse or child before December 21, 2000. K-3 and K-4 visas
continue to be issued.
178 For more information on these programs, see CRS Report R46570, Immigration Parole.
179 DHS, “DHS Announces Family Reunification Parole Processes for Colombia, El Salvador, Guatemala, and
Honduras,” press release, July 7, 2023.
180 For more information on these parole programs, see CRS Report R46570, Immigration Parole.
181 The Temporary Family Visitation Act was H.R. 8617 in the 116th Congress, H.R. 3215/S. 1635 in the 117th
Congress, and H.R. 5155 in the 118th Congress.
182 As explained earlier, Section 214(b) of the INA (8 U.S.C. §1184(b)) generally presumes that all foreign nationals
seeking admission to the United States intend to settle permanently. The Section 214(b) presumption is the most
(continued...)
Congressional Research Service

36

Nonimmigrant Overstays: Overview and Policy Issues

safeguards against overstaying. To be approved for a B-3 visa, the applicant must express intent
to depart by the end of 90 days and must not have overstayed in the past. Furthermore, U.S.
family members would not be allowed to petition for their relatives to obtain B-3 visas if anyone
they petitioned for in the past had overstayed. B-3 nonimmigrants would also be prohibited from
changing status within the United States; in other words, they would not be allowed to switch to
another status in order to stay in the United States longer.
Legalization
Another approach that has been suggested for addressing visa overstayers living in the United
States, and the resident unauthorized population more generally, is to enable them to adjust status
and become LPRs. To make LPR status generally available to unauthorized immigrants would
require the enactment of new adjustment of status mechanisms. Over the years, legislation has
been introduced to establish such mechanisms for unauthorized persons in the United States who
satisfy specified continuous presence and other requirements. For example, S. 744, as passed by
the Senate in the 113th Congress would have established a multistep, multiyear process to enable
eligible unauthorized aliens to transition into a provisional legal status and ultimately to LPR
status.183 More recently, the DIGNIDAD (Dignity) Act of 2023 (H.R. 3599), as introduced in the
118th Congress, proposes to establish a different multistep, multiyear process through which
unauthorized aliens who satisfy certain requirements could obtain LPR status. Supporters of
legalization proposals routinely argue that the intended beneficiaries have earned a pathway to
lawful status based on their contributions to the United States. Opponents commonly counter that
such proposals reward immigration law violators and may incentivize future unauthorized
immigration.

common basis for rejecting nonimmigrant visa applications, accounting for three-quarters of ineligibility findings in
FY2019.
183 For further information about this bill, see archived CRS Report R43097, Comprehensive Immigration Reform in the
113th Congress: Major Provisions in Senate-Passed S. 744.
Congressional Research Service

37

Nonimmigrant Overstays: Overview and Policy Issues

Appendix. Nonimmigrant Visa Categories
Visa
Initial Duration of
FY2022
Category
Description
Stay
Visa Issuances
A-1
Ambassador, public minister, career diplomat, or
Duration of assignment
9,395
consul, and immediate family
A-2
Other foreign government official or employee,
Duration of assignment
85,752
and immediate family
A-3
Attendant, servant, or personal employee of A-
Up to three years
808
1/A-2, and immediate family
B-1
Visitor for business
Six months to one year
21,943
B-2
Visitor for pleasure
Six months to one year
5,905
B-1/B-2
Visitor for business and pleasure
Six months to one year
3,228,199
B-1/B-2/BCC
Border crossing cards for Mexicans
Up to 30 days (or
1,182,329
longer if coupled with
B-1 or B-2)
B-1/B-2/BCV
Mexican Lincoln Border Crossing Visa
Up to 30 days (or
62,153
longer if coupled with
B-1 or B-2)
C-1
Person in transit
Up to 29 days
8,643
C-1/D
Combination transit/crew member
Up to 29 days
253,424
C-2
Person in transit to United Nations Headquarters Up to 29 days
32
C-3
Foreign government official and immediate family,
Up to 29 days
3,337
attendant, servant, or personal employee in
transit
CW-1
Commonwealth of the Northern Mariana Islands
Up to one year
1,041
(CNMI) transitional worker
CW-2
Spouse or child of CW-1
Up to one year
244
D
Crew member
Up to 29 days
7,381
E-1
Treaty trader, immediate family, and employee
Up to two years
5,383
E-2
Treaty investor, immediate family, and employee
Up to two years
45,878
E-2C
CNMI treaty investor, immediate family
Up to two years
34
E-3
Australian specialty occupation professional
Up to two years
4,731
E-3D
Spouse or child of E-3
Up to two years
3,292
E-3R
Returning E-3
Up to two years
2,631
F-1
Foreign student (academic or language training
Duration of study
411,131
program)
(limited to 12 months
for secondary school
students)
F-2
Spouse or child of F-1
Duration of study
25,887
F-3
Border commuter academic or language student
Duration of study
0
G-1
Principal resident representative of recognized
Duration of assignment
4,382
foreign member government to international
organization, staff, and immediate family
Congressional Research Service

38

Nonimmigrant Overstays: Overview and Policy Issues

Visa
Initial Duration of
FY2022
Category
Description
Stay
Visa Issuances
G-2
Other representative of recognized foreign
Duration of assignment
13,092
member government to international
organization, staff, and immediate family
G-3
Representative of nonrecognized or nonmember
Duration of assignment
357
foreign government to international organization,
staff, and immediate family
G-4
International organization officer or employee,
Duration of assignment
19,944
and immediate family
G-5
Attendant, servant, or personal employee of G-1
Up to three years
281
through G-4, and immediate family
H-1B
Temporary worker—professional specialty
Specialty occupation:
206,002
occupation
up to three years;
Department of Defense
research and
development: up to five
years
H-1B-1
Free trade agreement professional from Chile or
Up to one year
2,376
Singapore
H-2A
Temporary worker—agricultural workers
Up to one year
298,336
H-2B
Temporary worker—nonagricultural workers
Up to one year (up to
124,644
three years in the case
of a one-time event)
H-3
Temporary worker—trainee
Trainee: up to two
695
years
Special education
exchange visitor
program trainee: up to
18 months
H-4
Spouse or child of H-1B, H-1B-1, H-2A, H-2B, or
Same as H-1, H-2, or
137,246
H-3
H-3 spouse/parent
I
Representative of foreign information media,
Duration of
9,917
spouse and child
employment
J-1
Cultural exchange visitor
Duration of program
284,486
J-2
Spouse or child of J-1
Duration of program
30,579
K-1
Fiancé(e) of U.S. citizen
Valid for four months;
21,351
must marry within 90
days of entry to adjust
to LPR status
K-2
Child of K-1
Same as parent
3,441
K-3
Spouse of U.S. citizen awaiting LPR status
Up to two years
5
K-4
Child of K-3
Up to two years or
1
until 21st birthday
L-1
Intracompany transferee (executive, managerial,
Up to three years; up
72,958
and specialized personnel continuing employment to one year when
with international firm or corporation)
beneficiary is coming to
open or be employed
in a new office
L-2
Spouse or child of L-1
Same as spouse/parent
78,448
Congressional Research Service

39

Nonimmigrant Overstays: Overview and Policy Issues

Visa
Initial Duration of
FY2022
Category
Description
Stay
Visa Issuances
M-1
Vocational student
Duration of study
5,271
M-2
Spouse or child of M-1
Same as spouse/parent
242
M-3
Border commuter vocational or nonacademic
Duration of study
0
student
NATO-1
Principal permanent representative of member
Tour of duty
15
nations to North Atlantic Treaty Organization
(NATO), high ranking NATO officials, and
immediate family members
NATO-2
Other representatives of member states to
Tour of duty
7,370
NATO (including any of its subsidiary bodies) and
immediate family members; members of a force
entering in accordance with provisions of NATO
agreements, and their dependents
NATO-3
Official clerical staff accompanying a
Tour of duty
3
representative of a member state to NATO, and
immediate family
NATO-4
Officials of NATO (other than those classifiable
Tour of duty
163
as NATO-1), and immediate family
NATO-5
Experts employed in missions on behalf of
Tour of duty
62
NATO (other than NATO-4 officials), and their
dependents
NATO-6
Civilian employees of a force entering in
Tour of duty
863
accordance with the provisions of NATO
agreements or attached to NATO headquarters,
and their dependents
NATO-7
Attendant, servant, or personal employee of
Up to three years
0
NATO-1 through NATO-6, and immediate family
N-8
Parent of certain special immigrants (pertaining
Up to three years, as
13
to international organizations)
long as special
immigrant remains a
child
N-9
Child of N-8 or of certain special immigrants
Up to three years, or
1
(pertaining to international organizations)
until no longer a child,
whichever is shorter
O-1
Person with extraordinary ability in the sciences,
Up to three years
19,102
arts, education, business, or athletics
O-2
Person accompanying and assisting in the artistic
Up to three years
11,586
or athletic performance by O-1
O-3
Spouse or child of O-1 or O-2
Up to three years
6,234
P-1
Internationally recognized athlete or member of
Up to five years for
20,287
an internationally recognized entertainment
individual, up to one
group and essential support
year for group or team
P-2
Artist or entertainer in a reciprocal exchange
Up to one year
59
program and essential support
P-3
Artist or entertainer in a culturally unique
Up to one year
5,294
program and essential support
P-4
Spouse or child of P-1, P-2, or P-3
Same as spouse/parent
1,717
Q-1
International cultural exchange program
Up to 15 months
1,057
participant
Congressional Research Service

40

Nonimmigrant Overstays: Overview and Policy Issues

Visa
Initial Duration of
FY2022
Category
Description
Stay
Visa Issuances
R-1
Religious worker
Up to 30 months
4,098
R-2
Spouse or child of R-1
Up to 30 months
1,806
S-5
Witness or informant in criminal matter
Up to three years
0
S-6
Witness or informant in terrorism matter
Up to three years
0
S-7
Spouse or child of S-5 and S-6
Up to three years
0
T-1
Victim of a severe form of trafficking in persons
Up to four years; may
0
adjust to LPR status if
conditions are met
T-2
Spouse of T-1
Same as T-1
32
T-3
Child of T-1
Same as T-1
208
T-4
Parent of T-1 under 21
Same as T-1
27
T-5
Unmarried sibling under age 18 of T-1 under 21
Same as T-1
18
T-6
Adult or minor child of T-2, T-3, T-4, or T-5
Same as T-1
21
TN
NAFTA professional
Up to three years
33,361
TD
Spouse or child of TN
Up to three years
16,575
U-1
Victim or informant of criminal activity
Up to four years; may
178
adjust to LPR status if
conditions are met
U-2
Spouse of U-1
Same as U-1
114
U-3
Child of U-1
Same as U-1
1,191
U-4
Parent of U-1 under age 21
Same as U-1
18
U-5
Unmarried sibling under age 18 of U-1 under age
Same as U-1
40
21
Total

6,815,120
Source: Visa Category, Description, Duration of Stay: §§101(a)(15), 212, and 214 of the Immigration and
Nationality Act (8 U.S.C. §§1101(a)(15), 1182, and 1184); and 8 C.F.R §214. FY2022 Visa Issuances: U.S.
Department of State, Report of the Visa Office 2022, Table XV (B).
Notes: Some visa categories allow for an extension of stay. For more information, see the Appendix in CRS
Report R45040, Immigration: Nonimmigrant (Temporary) Admissions to the United States.

Author Information

Jill H. Wilson, Coordinator
Abigail F. Kolker
Analyst in Immigration Policy
Analyst in Immigration Policy

Andorra Bruno
Audrey Singer
Specialist in Immigration Policy
Specialist in Immigration Policy

Congressional Research Service

41

Nonimmigrant Overstays: Overview and Policy Issues

Acknowledgments
CRS Senior Research Librarians Sarah Caldwell and Tamar Breslauer and CRS Research Assistant Sylvia
Bryan provided assistance with this report.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

Congressional Research Service
R47848 · VERSION 1 · NEW
42