Overstays: The Lesser-Known Illegal Immigration Issue

Brian Heslin

EXECUTIVE SUMMARY

The goal of this thesis is to bring light to the lesser-reported type of “illegal immigrant” in the United States—individuals who overstay their visas’ allowed length of admission—and develop a policy to appropriately deal with this issue. By definition, illegal immigrant is applied to an individual who violates a countries laws.[1]  For the United State the applicable immigration laws are found in the Immigration and Nationality Act (INA).[2] The term illegal immigrant is commonly associated with individuals who cross the United States’ international borders without permission. The Fiscal Year 2016 Entry/Exit Overstay Report from the Department of Homeland Security defines an “overstay” as an individual who after being legally admitted to the United States subsequently stays past that length of admission, thus violating the INA, and becomes an illegal immigrant.[3]Although the exact number of illegal immigrants in the United States is not known, according to a 2017 blog from the Pew Research Center’s Fact Tank: News in Numbers, the estimated number is over 11 million.[4] Of that number, Immigration and Customs Enforcement (ICE) Officials reported in a 2010 hearing before the House of Representatives that of individuals deemed to be illegally in the United States, 40% are overstays.[5]

Historically, the focus of combating illegal immigration has been aimed at those who enter the United States without inspection. This is not to say that efforts have not been made to address the overstay issue, but as this thesis shows, past efforts have been lacking and/or inconsistent. This thesis attempts to address this question: “How can the U.S. government develop a policy to reduce the number of people who overstay their legal length of admission?” To analyze this properly, the number of individuals who overstay and the legal authorities related to immigration in the United States were explored.

Chapters I and II offer the reader an overview of the overstay issue. Chapter I provides the reader insight on the overstay problem. It highlights aspects of the overstay problem, including the increasing numbers of overstays, past national security risks, and factors that motivate individuals to overstay. Chapter II provides an explanation of the relevant laws and regulations related to overstays. Specifically, Chapter II breaks down the process of how an individual visiting the United States navigates the various stages of the immigration system as it relates to the overstay issue. The chapter also highlights the current system and how it might contribute to one’s decision to become an overstay.

Chapter III of the thesis focuses on the number of overstays or, more important, the lack of credible data regarding overstays. The issues of inadequate reporting and unreliable data are discussed along with how these issues have contributed to inefficient action toward overstays. The chapter provides a historical perspective, highlighting government reports dating back to the 1970s that cite needed improvements in identifying overstays. Although progress has occurred in certain areas, the chapter demonstrates that the government has continually fallen behind in addressing the reporting and identification of overstays. In addition, the chapter explores the recent overstay reports issued by DHS, analyzing a breakdown of certain categories and countries. The chapter also brings to light certain caveats regarding the current reporting system that may cast doubt and hinder reliance on the current data.

Chapter III also identifies potential motivators for why an individual chooses to overstay in the United States. Mindful that it is impractical to obtain a statement of fact from individuals who overstay, this chapter explores other factors that may motivate an individual to overstay. The theory of a magnet effect—specifically, that of the prospect of employment opportunity in the United States—is discussed. Acknowledgment of the existence of this magnet and how the U.S. government has inconsistently dealt with this magnet is highlighted.

The thesis concludes with recommendations for how the U.S. government could address the issue of overstays. The recommendations range from an enforcement-only approach to a balanced approach of awareness and enforcement. Through the research of this issue, it has become clear that in the realm of immigration an all-inclusive answer is seldom applicable; therefore, several recommendations are suggested. A balanced and flexible approach should be considered that provides the government and the potential violators various avenues to avoid and/or resolve the overstay issue.

 

 

 

 

 

[1] Merriam-Webster, s.v. “illegal immigrant,” accessed November 17, 2018, https://www.merriam-webster.com/dictionary/illegal%20alien/immigrant

[2] 8 U.S.C. §§ 1104-1401–Immigration and Nationality (Suppl. 2 1964), http://uscode.house.gov/download/annualhistoricalarchives/pdf/2012/2012usc08.pdf.

        [3] Department of Homeland Security, Fiscal Year 2016 Entry/Exit Overstay Report (Washington, DC: Department of Homeland Security, May 5, 2017), 8, https://www.dhs.gov/news/2017/05/22/dhs-releases-fiscal-year-2016-entryexit-overstay-report

[4] Jens Manuel Krogstad, Jeffrey S. Passel, and D’Vera Cohn, “5 Facts about Illegal Immigration in the U.S.,” Fact Tank: News in Numbers (blog), April 27, 2017, http://www.pewresearch.org/fact-tank/2017/04/27/5-facts-about-illegal-immigration-in-the-u-s/.

[5] Visa Overstays: Can They Be Eliminated? Hearing before the Committee on Homeland Security, House of Representatives, 111th Cong., 2d sess., March 25, 2010, https://www.scribd.com/document/
327439170/house-hearing-111th-congress-visa-overstays-can-they-be-eliminated.

 

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