Identifying Overstaying Nonimmigrants

Identifying Overstaying Nonimmigrants

By Reuben Seguritan


May 31, 2017


Foreigners who overstay their visas face grave consequences for not leaving when they are supposed to. If the foreign national remains in the United States beyond his authorized period of admission, then he is overstaying. All foreign nationals who have overstayed will be considered out-of-status and hence, deportable under US immigration laws.


Another consequence of overstaying is that the visa which he used to enter the United States would be automatically cancelled. For example, a foreign national enters the United States on a Tourist Visa (B-2) and is given 6 months at any given time. If he overstays beyond the 6-month period, then his B-2 visa even if it has a 10-year validity, is automatically cancelled. There is no waiver or forgiveness for this and a new visa must be obtained from the US Consulate in his home country to return to the United States in the future.


Furthermore, if the foreign national overstays for 180 days or more, then he will be barred from returning to the United States for 3 years. If the foreign national overstays for a year or more, then he will be barred for 10 years.


Despite these severe penalties, there are thousands of people who overstay their visas. The Department of Homeland Security (DHS) has recently reported that of the 50,437,278 in-scope nonimmigrant admissions through air or sea ports in fiscal year 2016, 739,470 individuals overstayed their visas.


Since 2007 according to the DHS, the number of people overstaying their visas has exceeded the number of people crossing into the United States illegally every year. It is estimated that 40% of the undocumented immigrants in the United States entered the United States legally with valid visas, but then overstayed. There are two types of overstays. The first refers to those with no record of departures. These are known as “suspected In-Country Overstays.” The second refers to those with record of departure after their authorized stay expired. They are called “Out-of-Country Overstays.”


For the fiscal year 2016, the country with the highest number of in-country overstays was Canada with 1.33% of the 9,008,496 who were lawfully admitted. Mexicans came in second with 1.52% of the 3,079,524 that entered the United States.


Out of the 250,753 tourists (business or pleasure) from the Philippines 562 were out-of-country overstays and 4438 were suspected in-country overstays or a total of 5000. There were also 934 students and exchange visitors who overstayed out of the 10,169 who entered. Overstays for other in-scope nonimmigrants were 6523 out of the 22604 who were admitted.


The Immigration and Customs Enforcement (ICE) has increased the enforcement of laws relating to visa overstays. It has continued to require biometric and biographic information from all foreign nationals entering the United States. The ICE has also required biometric information during the departure of foreign nationals from the United States since 2013, but only as tests. In June 2016, the Customs and Border Patrol (CBP) implemented the first operational facial biometric trial for persons leaving the United States through the Hartsfield-Jackson Atlanta Airport. This biometric exit verification utilized mobile devices to biometrically verify the departures.


The CBP will continue to implement the biometric exit requirement in 3 phases. The first phase is already being conducted in the Hartsfield-Jackson Atlanta Airport. The second phase is the building of biometric services for persons leaving the United States in all airports. The third phase is to create the data infrastructure to support the requirements of biometric data collection for all persons leaving the United States.

Civil liberties advocates like the American Civil Liberties Union (ACLU) say the collection of biometric data poses “an extraordinary threat to privacy.” There is also a high risk of inaccuracies by the biometric system with false positives or persons who do pose a risk to national security, but no positive identification is made in the system.