Follow-Up Report On INS Efforts To Improve
The Control Of Nonimmigrant Overstays
Report No. I-2002-006
April 2002
In this follow-up review, we found that since our 1997 report the INS has not taken effective action to address the recommendations in our report. We found that the INS has not improved the reliable collection of I-94s, particularly the departure records; the INS does not actively monitor airline compliance with the requirement to provide correct and complete departure I-94s; and the INS has not yet implemented the regulations to fine airlines that fail to comply. The NIIS data collected by the INS is not reliable and therefore cannot be used by the Attorney General to certify participation in the VWP. In addition, the INS still has no automated system to provide the necessary support for an effective enforcement strategy that would be a deterrent against nonimmigrant overstays who remain in the United States or a strategy that would assist in finding them.
Status of OIG Recommendations from 1997 Report
Improve the collection of departure records by working with airlines to promote compliance, actively monitoring carrier compliance, and fining noncompliant airlines.
In our 1997 report, we determined that NIIS did not contain departure records for a large number of aliens, most of whom the INS believed had left the United States. The INS believed most of these unrecorded departures resulted from either the failure of the airlines to collect Form I-94s from departing nonimmigrants or from nonimmigrants departing the United States through land POEs. Lack of departure records means that the INS is unable to determine with certainty the number of overstays or which apparent nonimmigrant overstays are true overstays.
The INS attempted to determine the scope of the deficiencies by testing collection of I-94s at certain airports and for certain airline carriers. The INS planned to develop an on-site airline-specific training module based on the results of the tests, and enhance airline compliance by initiating fines. 3 In January 1998, while awaiting the test results, the INS disseminated information sheets for airlines and POEs on the proper procedure for completion, collection, and submission of Form I-94s to the INS. This interim measure was intended to help the carriers reduce or eliminate Form I-94 errors as a cause for the failure to successfully match arrival and departure records in NIIS.
To test the collection of I-94s the INS prepared an arrival/departure comparison chart from NIIS sample data and, using this data, selected two POEs in each region to validate the comparison data. The validation involved monitoring the submission of departure forms by specific airlines for one month. The INS completed the analysis in August 2000 and determined that most airlines were not submitting complete and accurate departure information on a substantial number of the departure records, which prevented the INS from matching arrival and departure records. The INS found that the problems were not specific to an airline or a POE. Based on this analysis, the INS developed an airline-training program to improve the collection of Form I-94s and to enhance the accuracy of the information on the forms. The INS provided information about this training program to the OIG on December 14, 2001. However, the INS did not implement the training program because it had been waiting for fuller deployment of the INS's Automated I-94 System (discussed later).
To improve airline compliance with the completing, collecting, and delivering of Form I-94s to the INS, the INS also sought to clarify its policy for imposing fines on airlines for non-compliance with Section 231(d) of the INA, (i.e., the airlines' failure to turn in complete and accurate departure I-94s). The Federal Register Notice of the INS's intent to fine noncompliant airlines was published in November 1998. However, according to the INS, it cannot impose the fines until it amends Title 8, Section 231 of the Code of Federal Regulations (CFR) to promulgate rules for imposing fines. As of January 2002, the INS had not finalized such an amendment. An INS official told the OIG that the amendment was indefinitely delayed because it is tied to the Automated I-94 System that was to be used to determine airline compliance. But as we discuss in the next section of this report, a November 2001 cost-benefit analysis of the Automated I-94 System by the INS recommended that it be discontinued in favor of the effort to develop the integrated entry-exit control system mandated by the USA Patriot Act. If the recommendation is accepted, it is not clear what the immediate effect would be on the effort to amend the CFR regulations and impose fines on the airlines.
In summary, since issuance of our 1997 report, the INS has not implemented measures to ensure that the airlines collect accurate and complete Form I-94s from all arriving and departing nonimmigrants, has not implemented the airline training program, and has not published the amendment to the CFR to fine non-compliant airlines.
Implement a course of action that will ensure complete and reliable NIIS data. NIIS data must be sufficiently complete and reliable to meet the requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and to enable the Attorney General to fully perform his responsibilities under the Visa Waiver Pilot Program (VWPP). 4
The INS planned to rely on its Automated I-94 System to satisfy this recommendation. The INS hoped that its Automated I-94 System would provide the INS with the capability to match automated departure records for aliens departing the United States with their automated arrival records. This would enable the INS to identify overstays. However, the success of the Automated I-94 System is highly reliant on the cooperation and participation of the airlines in ensuring accurate arrival data at passenger check-in and promptly collecting and providing departure information. The prototype Automated I-94 System operated at four airports with two airlines.
The INS planned implementation of the Automated I-94 System in two stages, beginning with major airports in FY 2001. This would have provided the INS with the ability to capture arrival and departure information for approximately 87 percent of all aliens arriving by air. Full implementation at all U.S. airports was planned for FY 2002. In September 2000, however, INS officials informed the OIG that implementation of both stages has been delayed until FY 2002 and FY 2003, due to problems encountered with the pilot program and budget constraints.
The OIG Audit Division issued a report in August 2001 entitled "Automated I-94 System (Report Number 01-18)," which concluded that the INS had not properly managed the Automated I-94 System project. Despite having spent$31.2 million on the system from FY 1996 to FY 2000, the INS did not have clear evidence that the system would meet its intended goals. The INS estimated that an additional $57 million would be needed through FY 2005 to complete the system. The OIG recommended that the INS conduct a cost-benefit analysis of the Automated I-94 System prior to making any further expenditures.
The INS issued its cost-benefit analysis on the Automated I-94 System on November 28, 2001. The analysis concluded that if the INS spent the additional $57 million to redesign the system and fix the known problems, the system would "appear to have met the original requirements set forth in IIRIRA." However, the INS report went on to state that, "it is doubtful whether this system can fulfill the specifications of either DMIA or VWPPA. Successive legislation to IIRIRA clearly calls for a sophisticated entry/exit control system, which the Automated I-94 is not, nor was intended to be." In light of the terrorist attacks of September 11, 2001, the analysis asserted that resources should be devoted to developing the entry-exit system required by the USA Patriot Act rather than continuing to spend resources on the Automated I-94 System. The analysis stated that it was in the best interest of the INS to incorporate the lessons and experience gained from piloting the Automated I-94 System and instead spend its resources on an integrated entry-exit control system that will meet the specified legislative requirements. The analysis recommended that the entry-exit system should take priority over redesigning the Automated I-94 system. On February 18, 2002, the INS officially terminated the Automated I-94 System project.
According to an official from the INS's Statistics Office, the unreliability of nonimmigrant information continues to be a problem. A basic shortcoming is the collection of departure records - not only at air POEs, but also at land POEs where no mechanism exists to collect the forms of those nonimmigrants who are required to provide them. The Statistics Office estimated that for every 100 arrival forms the INS receives, it receives about 80 to 83 departure forms. Further, the actual matching process is problematic because of data entry errors. Duplicate records still exist because the airlines photocopy blank Form I-94s, causing different aliens to have the same admission number. To compound the difficulty in identifying overstays, the Statistics Office no longer receives updates on visa extensions or adjustments of status. Therefore, some aliens appear to be overstays when they are legally in the United States. The Statistics Office official acknowledged that current Form I-94 data is not reliable for:
As noted above, the USA Patriot Act mandated that an Entry-Exit Task Force be established to create a comprehensive entry-exit system. The task force project team began meeting in February 2002. The Entry-Exit Task Force is led by the INS and the U.S. Customs Service of the Department of the Treasury and includes the Departments of State, Commerce, and Transportation. 5
The Entry-Exit Task Force has agreed that the first phase of the comprehensive plan will be to collect information electronically for arrival and departures of persons participating in the VWP at air and certain sea POEs. This first phase will provide data that will allow the Attorney General to certify the continued participation of countries that are enrolled in the VWP. The Commissioner of INS has pledged to complete this phase by January 2003.
Conduct an analysis of overstay data that will support the development of an overstay enforcement strategy.Develop an interior enforcement strategy to address the increasing overstay population.
The INS concurred with the 1997 OIG report's findings that there were gaps in the INS's information on nonimmigrant overstays. The absence of reliable data from NIIS was one cause. The other was that the INS used little recent overstay data that was available to it from its benefits and enforcement programs to better target and direct its enforcement efforts against overstays. The last INS analysis of the characteristics of the overstay population was issued in 1994. 6 The 1994 analysis had updated a 1992 INS study, "Report on the Legalized Alien Population," that was based on data provided by aliens who entered the United States illegally in the early 1980s and then applied for amnesty after the passage of the Immigration Reform and Control Act of 1986.
In January 1998, the INS stated its intention to analyze again its records of apprehension, records of persons removed, and records of illegal aliens who applied to adjust to legal permanent resident status. This would include the more current data provided by aliens who applied for adjustment under the provisions of 245(i) between 1994 and 1997, among whom were thousands of self-reported overstays. 7 The proposed analysis was intended to assist in developing an enforcement strategy to apprehend overstays.
As part of this analysis, the INS proposed to carry out an ambitious six-step plan to assess information available in its automated enforcement and benefits systems and draw samples from paper records. However, this analysis proved difficult because the INS records of arrest and benefits did not compile information on overstays. For example, INS field operation reports did not contain, nor did the INS produce, aggregate data on the number of overstays apprehended. By July 1999, the INS had completed only the first step in the plan (an analysis of occupations and industries of former illegal aliens granted legalization by method of entry, using surveys of aliens conducted in 1989 and 1992).
The INS issued a new Interior Enforcement Strategy in 1999 (with an addendum added in March 2000). Yet, the INS recognized that any enforcement strategy aimed at overstays needed a comprehensive entry-exit control system. The 1999 Interior Enforcement Strategy intended to rely on the proposed Automated I-94 System to identify overstays as part of the strategy. 8 But, as discussed above, a reliable automated I-94 system has not been implemented. The INS now acknowledges that its ability to implement an effective interior enforcement strategy for overstays is limited because of this lack of an accurate entry-exit system to identify individual overstays.