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Statement of Michael R. Bromwich, Inspector General, U.S. Department of Justice, before the House Judiciary Committee, Subcommittee on Immigration and Claims concerning “Non-immigrant Overstays”

Statement of

Michael R. Bromwich Inspector General, U.S. Department of Justice

before the

House Judiciary Committee Subcommittee on Immigration and Claims


Non-Immigrant Overstays

March 18, 1999

* * * * *

Mr. Chairman, Congresswoman Jackson Lee, and Members of the Subcommittee on Immigrations and Claims:

I appreciate the opportunity to appear before the Subcommittee to discuss the work of the Office of the Inspector General (OIG) with respect to non-immigrant overstays. In FY 1997, approximately 241 million aliens entered the United States as temporary visitors. More than 90 percent of these non-immigrants were tourists or came here to conduct business or attend school. Most of these individuals left the United States after their touring, business, or schooling was completed. However, a significant number did not. In general, non-immigrants who violate the terms of their admission and unlawfully remain in this country may present security risks or take jobs and receive other benefits that by law are reserved for legal residents.

We examined INS's monitoring of non-immigrant overstays and assessed the Non-Immigrant Information System (NIIS) - INS's primary data collection system for non-immigrant overstay information - in an Inspection Report issued in September 1997. What we found was disturbing.

                 I.        OIG Findings

INS cannot identify individual overstays and cannot adequately describe the characteristics of the overstay population.

INS currently has no automated method of identifying the number of aliens who have entered this country legally but failed to depart. INS estimates the overall number of overstays at more than 2 million, or 41 percent of the estimated 5 million illegal aliens in this country. The illegal alien population in this country is growing by an estimated 275,000 each year - 125,000 of whom are non-immigrants overstays.

INS cannot identify individual overstays nor can it adequately describe the characteristics of the overstay population residing in the United States, such as countries of origin, occupations, and worksites where overstays are employed. This significantly hinders INS's efforts to develop an overstay enforcement plan and hinders Congress's ability to make informed immigration policy. Two factors contribute to these shortcomings: serious inadequacies in NIIS - currently the only system that captures information on individual overstays - and a failure to mine potentially rich data developed by INS benefits and enforcement operations. I will address each of these issues in more detail.

INS's Non-Immigrant Information System does not produce reliable data.

By design, NIIS only captures information on about 10 percent of non-immigrant entries into the United States. Mexicans and Canadians entering through land border ports-of-entry comprise more than 90 percent of all non-immigrant entries into this country but are not tracked in NIIS because they are generally exempt from completing arrival/departure records known as Form I-94, NIIS's primary source of information. Consequently, NIIS only captures data on the remaining 10 percent of non-immigrant entries into this country - that is, only visitors entering the United States through airports and seaports or a few land border ports-of-entry.

Furthermore, NIIS does not contain departure records for a large number of aliens, many of whom the INS believes have left the United States. Most of these unrecorded departures result either from the failure of the airlines to collect I-94s from departing non-immigrants or from non-immigrants who depart through land borders where records of departure are not required or maintained.

The INS Statistics Division began seriously questioning the quality of NIIS data in FY 1993 when overstay rates for certain classes of visitors - such as visa waiver entrants - rose significantly compared to the preceding year. This finding, coupled with unusual and unexplained fluctuations in overstay rates by class, month of admission, and country of admission, led INS to conclude that NIIS data after FY 1992 was unreliable for estimating overstay rates. INS cannot explain why this happened.

INS has not developed a clear and effective enforcement strategy to identify, locate, apprehend, and remove non-immigrant overstays.

INS estimates that non-immigrant overstays constitute more than 2 million or 41 percent of the total illegal alien population in the United States. However, of the 90,000 illegal aliens apprehended in the interior by INS's enforcement programs in FY 1996, only 10,000 were non-immigrant overstays.

INS's historic approach to overstays has been to concentrate its interior enforcement resources on criminal aliens and worksite enforcement. In preparing for this hearing, we received a copy of INS's new interior enforcement strategy, a document I believe the Subcommittee has also received. As far as I can tell, this strategy would represent a sea change in how INS evaluates the success of its interior enforcement program by de-emphasizing the number of illegal aliens deported from the United States. Under this new strategy, INS would instead assess the "positive impact on local communities of INS law enforcement efforts" such as increased wages in industries that typically hire illegal immigrants, reduced local crime rates, and rises in the cost of smuggling aliens or obtaining fraudulent immigration documents.

The INS briefing paper also describes implementation of the Automated Departure Information System (ADIS), a system designed to more accurately capture I-94 arrival and departure information. While the Office of the Inspector General has not examined this new data collection system, my understanding is that not all airlines have signed on to participate in ADIS and the ones that have done so are designating only certain flights at specified airports.

I would caution against unfounded optimism like that expressed by an INS spokesman quoted in The Washington Times after release of the OIG's 1997 Inspection Report as saying that the new automated data collection system would be in place by 1998. "For the first time in history, the program will provide INS with accurate data regarding overstays," the spokesman said. While this is a laudable goal, we have yet to see any evidence that this has become a reality.

              II.        Status of INS Corrective Actions

Our Inspections Report made four recommendations to the INS:

Improve the collection of departure records by working with air carriers to promote compliance, and then actively monitor compliance and fine non-compliant carriers.

Since release of our report, INS has partially completed the training elements of its carrier education program, but has yet to begin monitoring carrier compliance. Although a November 1998 notice published in the Federal Register announced the agency's intention to begin fining carriers that fail to turn in arrival and departure I-94s, no fines have been imposed because the proposed rules are not yet final. We have not received a written response from INS about the status of this recommendation since May 1998.

Ensure complete and reliable overstay data.

After our report was issued, INS formed a Non-Immigrant Information System Operation and Maintenance Team to develop a plan to revise, reload, and analyze NIIS data for fiscal years 1995-1997. In May 1998, INS informed us that their reexamination of the data continued to raise significant concerns about its validity. INS did not specify what was wrong with the data. We have not received formal notification of their findings, although this is another outstanding recommendation for which we expect to receive a report of corrective action. However, informal contacts with INS staff indicates that the data continues to be unreliable and therefore unusable for accurately estimating overstay rates.

Analyze other sources of INS data to support development of an overstay enforcement strategy.

In response to our Inspection, INS developed a plan to obtain more current information on overstays by examining data available in its enforcement and benefit systems. INS agreed that such information was potentially available from: 1) records of apprehension; 2) records of persons removed; and 3) records of adjustment to legal permanent resident status. INS proposed to assess the amount of information available in automated records for these three groups in order to identify likely overstays and prepare a profile of their characteristics.

While the project's timetable envisioned completion by October 1998, we have not received any documentation from INS indicating the status of this data analysis effort. Informal contacts with INS staff, however, indicate that only the first of six proposed steps has been completed. We are unaware of any new timetable for completion.

Develop an interior enforcement strategy that effectively addresses the growing overstay population.

INS was hopeful that reliable data on non-immigrant overstays would be available to help it develop an interior enforcement strategy. This clearly has not been the case with respect to NIIS and other INS efforts to obtain more current overstay data. Nevertheless, INS recently issued a new interior enforcement strategy, apparently without the benefit of more comprehensive or reliable data.

            III.        Other OIG Work Relevant to Non-Immigrant Overstays

                               A.        Visa Waiver Pilot Program

The lack of reliable overstay data has ramifications for other immigration-related programs. The OIG is currently examining the potential for fraud in INS's Visa Waiver Pilot Program (VWPP), a program that waives visa requirements for visitors from 26 countries who travel to the United States for business or pleasure. In FY 1997, 14.5 million visitors entered this country under the VWPP.

Our Inspection has found abuse in this program by overstays, but here again sufficient reliable data does not exist to gauge the extent of the problem. We have found that terrorists, criminals, and alien smugglers attempted to gain entry into the United States through the VWPP. In addition, given the unreliability of NIIS data, INS cannot provide the Attorney General with the information she needs to certify that the countries enrolled in the Pilot Program are fully complying with the program's mandates.

                               B.        Special Investigation: Bombs in Brooklyn

A Special Investigation by my office released in March 1998 - "Bombs in Brooklyn: How the Two Illegal Aliens Arrested for Plotting to Bomb the New York Subway Entered and Remained in the United States" - highlighted the threat that some non-immigrant overstays may be involved in terrorist activities. In this particular investigation, one of the two Palestinians arrested for allegedly planning to bomb the Brooklyn subway illegally remained in the United States after his visitor's visa expired.

We found that because the Palestinian's alleged purpose for traveling to the United States was solely to catch a connecting flight to Ecuador, he should not have received a visa that permitted him to remain in this country longer than the time needed to board a connecting flight. We recommended that the INS and the Department of State more carefully consider when "transit without visa travel" is appropriate; in this particular case, the Consular Office did not even consider this status.

Finally, our investigation discovered significant differences of understanding between INS and the State Department about various officials' roles in the visa process. Neither the immigration inspector at the port of entry nor the Consular Officer who issued the visa thought it was his or her role to verify that the Palestinian actually had a ticket to Ecuador or adequate funds for the trip. Neither thought that it was his or her responsibility to consider restricting the period of his stay to something less than the 29 days permitted under a C-1 visa. We believe that this confusion over the appropriate role of INS and State Department officials needs to be addressed and clarified in the interests of controlling illegal immigration.

Since issuance of our report last March, we sent two letters to the INS to check on the status of their corrective actions - the first in October 1998, the second in January of this year. INS has not responded to either letter.

             IV.        Conclusion

During the past five years, Congress and the Department of Justice have made apprehension of illegal aliens a top INS priority. Consequently, the bulk of INS's enforcement resources have been dedicated to border enforcement. The substantial infusion of personnel and other resources along the U.S.-Mexico border has further exacerbated the disparity between border enforcement and interior enforcement. Border enforcement will have no effect on overstays; only interior enforcement can address the overstay problem.

The visa overstay issue is a complex problem with no easy solutions. However, INS has failed to develop a reliable data system to gauge the extent of the problem or to assist it in developing effective enforcement strategies. For these and other reasons, INS needs to make development of data systems that will inform the non-immigrant overstay debate one of the agency's highest priorities.

I would be pleased to answer any questions.