Trump Administration Takes Aim at Visa Overstays

Citing concerns about the number of nonimmigrant visa overstays, President Trump recently signed a memorandum directing the Department of State and Department of Homeland Security to develop proposals to prevent nonimmigrants from overstaying their visas.

When does a visa overstay occur?

Visas overstays occur when nonimmigrants are admitted to the U.S. on valid visas or pursuant to the visa waiver program, but do not leave the U.S. at the end of their authorized periods of admission.

What is the current overstay rate?

While more than 98% of travelers to the U.S. depart on time, as of March 2019, according to the Trump administration, more than 415,000 individuals were suspected to still be in the U.S. after overstaying their nonimmigrant visas in fiscal year (FY) 2018 alone.

Contrary to what many people might assume, most experts agree that visa overstays have far outpaced illegal entries to the U.S. and represent a significant percentage of the people in the U.S. without legal status. It’s therefore no surprise that an administration has identified this issue as a priority.

Will there be a focus on certain overstays?

While the largest number of overstays come from Canada and Mexico, the administration has signaled that were it to suspend the issuance of nonimmigrant visas to citizens of certain countries, the focus would be on those countries with the highest percentage of overstays, not the highest overall numbers.

The possibility that issuance of nonimmigrant visas would be suspended for citizens of entire countries is in line with the administration’s recent pronouncements that doing so is within the authority of section 243(d) of the Immigration and Nationality Act.  

What is currently being done about overstays?

At this point, there is no mechanism by which the government can effectively follow up on status expirations. While Customs and Border Protection recently implemented an email system whereby the agency contacts nonimmigrants to remind them about an upcoming status expiration, there is no real enforcement mechanism. Further, Customs and Border Protection acknowledges that the agency’s overstay data is only reliable since 2015.

What is anticipated on overstays?

It remains to be seen exactly what steps the agencies will propose to address visa overstays, but at the very least, it is reasonable to assume that in the future, it will be more difficult for foreign nationals of all countries to obtain nonimmigrant visas, especially tourist visas. This uncertainty could have the unintended consequence of deterring legitimate tourism to the U.S., an industry on which many U.S. workers depend.

The Departments of State and Homeland Security are required to make their recommendations by the end of the summer.