Congress asked the Department of Homeland Security (DHS) and its predecessor, the Immigration and Naturalization Service, for more than 20 years for a report on how many nonimmigrant alien visitors have overstayed their admission periods. DHS finally produced a report this year. It includes overstays who entered the United States as nonimmigrant visitors for business or pleasure through an air or sea Port of Entry in FY2015. DHS determined that 527,127 of them remained here when their admission periods expired. To put that number into perspective, the Border Patrol only apprehended 331,333 aliens making illegal entries on the Mexican border in FY2015.

The report does not include nonimmigrant visitors for business or pleasure who entered at a land Port of Entry on the Mexican or Canadian borders, or nonimmigrant visitors who have other classifications, such as foreign government officials, aliens in transit through the United States, treaty traders and investors, students, international representatives, temporary workers and trainees, representatives of foreign information media, exchange visitors, intracompany transferees, NATO officials, or religious workers.

Terrorists have come into the United States as nonimmigrant visitors. In her opening statement at a hearing on overstays, Martha McSally, Chairwoman of the House Border and Maritime Security Subcommittee, noted the following examples of terrorists who were overstays:

  • Mahmud Abouhalima, an Egyptian convicted of the 1993 World Trade Center bombing, worked illegally in the U.S. as a cab driver after his tourist visa had expired;
  • At least four of the 9/11 hijackers were nonimmigrant visitors who had overstayed their visas or had violated the terms of their visitor status;
  • More recently, Amine el-Khalifi attempted to conduct a suicide attack on the U.S. Capitol in 2012. He entered the United States in 1999 on a tourist visa and never left; and
  • A man who had returned to the United States despite being out of status on his student visa as an overstay, was arrested in the aftermath of the Boston Marathon bombing for helping to destroy evidence.

The report also finds that 153,166 of the overstays came from a Visa Waiver Program (VWP) country, which includes a number of European countries. Terrorist attacks in Europe have raised concern about the possibility that terrorists will use the VWP to come to the United States. Congress responded to that concern by passing the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which placed additional restrictions on eligibility for travel to the U.S. without a visa under the VWP. It excludes aliens who have been present, at any time on or after March 1, 2011, (I) in Iraq or Syria; (II) in a country that is designated by the Secretary of State as a country, the government of which has repeatedly provided support for acts of international terrorism; or (III) in any other country or area of concern designated by the DHS Secretary. DHS has added three countries – Libya, Yemen, and Somalia.

The Visa Waiver Improvement and Terrorist Prevention Act is not going to prevent terrorists from using the VWP to come here without visas. ISIS and other terrorist organizations have or can recruit citizens of VWP countries who will not be excluded by that Act. The door is still wide open.

A new Administration will address the overstay problem in a few months, but I am not optimistic about the likelihood that either of the candidates for the presidency will be able to solve that problem.

According to Donald Trump, “If we don’t enforce visa expiration dates, then we have an open border – it’s as simple as that.” He addresses this problem in Point 8 of his 10-Point Plan to Put America First. He promises to ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports. He also has promised to make individuals who refuse to leave at the time their visa expires subject to criminal penalties.

A fully implemented entry-exit tracking system would make it possible to compile lists of overstays, and this would be useful for determining whether VWP countries should be allowed to remain in the program. The system, however, would not tell ICE where the overstays are located; and if ICE cannot find them, it cannot arrest them and put them in removal proceedings. From an enforcement standpoint, it would be more productive to concentrate on making the Visa Waiver Program more secure. For suggestions, see my article, “Is the Visa Waiver Program as secure as it is supposed to be?” Trump’s other idea is not any better. Aliens who enter without inspection have been subject to criminal penalties for many years now, and I have not heard anyone claim that it has been an effective deterrent to such entries.

Hillary Clinton’s immigration policies would make this situation even worse by completely removing the possibility that an alien who overstays would be deported. She has promised to focus enforcement resources on detaining and deporting individuals who pose a violent threat to public safety. At a Democratic Presidential Debate on March 9, 2016, she said that if she is elected, she will not deport any undocumented alien children and she will only deport undocumented adult aliens who have criminal records. This would attract aliens from the VWP countries who would like to live and work in the United States but are not eligible for Lawful Permanent Resident status. They could come here freely with an online computer registration certificate and a passport without being concerned about deportation for overstaying. The same would be true of the other groups of nonimmigrant visitors. They all would be free to remain in the United States with impunity when their authorized periods of admission end.

This article was published originally on Huffington Post.

About the Author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.