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United States Government Accountability Office: 
GAO: 

Testimony: 

Before the Subcommittee on Immigration Policy and Enforcement, 
Committee on the Judiciary, House of Representatives: 

For Release on Delivery: 
Expected at 1:00 p.m. EST:
Wednesday, December 7, 2011: 

Visa Waiver Program: 

Additional Actions Needed to Address Risks and Strengthen Overstay 
Enforcement: 

Statement of Richard M. Stana, Director:
Homeland Security and Justice: 

GAO-12-287T: 

GAO Highlights: 

Highlights of GAO-12-287T a testimony before the Subcommittee on 
Immigration Policy and Enforcement, Committee on the Judiciary, House 
of Representatives. 

Why GAO Did This Study: 

The Department of Homeland Security (DHS) manages the Visa Waiver 
Program, which allows nationals from 36 member countries to apply for 
admission to the United States as temporary visitors for business or 
pleasure without a visa. From fiscal year 2005 through fiscal year 
2010, over 98 million visitors were admitted to the United States 
under the Visa Waiver Program. During that time period, the Department 
of State issued more than 36 million nonimmigrant visas to other 
foreign nationals for temporary travel to the United States. DHS is 
also responsible for investigating overstays—-unauthorized immigrants 
who entered the country legally (with or without visas) on a temporary 
basis but then overstayed their authorized periods of admission. The 
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 
Act) required DHS, in consultation with the Department of State, to 
take steps to enhance the security of the program. This testimony is 
based on GAO reports issued in September 2008, April 2011, and May 
2011. As requested, it addresses the following issues: (1) challenges 
in the Visa Waiver Program, and (2) overstay enforcement efforts. 

What GAO Found: 

GAO has reported on actions that DHS has taken in recent years to 
improve the security of the Visa Waiver Program; however, additional 
risks remain. In May 2011, GAO reported that DHS implemented the 
Electronic System for Travel Authorization (ESTA), required by the 
9/11 Act, and took steps to minimize the burden associated with this 
new program requirement. DHS requires applicants for Visa Waiver 
Program travel to submit biographical information and answers to 
eligibility questions through ESTA prior to travel. In developing and 
implementing ESTA, DHS made efforts to minimize the burden imposed by 
the new requirement. For example, although travelers formerly filled 
out a Visa Waiver Program application form for each journey to the 
United States, ESTA approval is generally valid for 2 years. However, 
GAO reported that DHS had not fully evaluated security risks related 
to the small percentage of Visa Waiver Program travelers without 
verified ESTA approval. In 2010, airlines complied with the 
requirement to verify ESTA approval for almost 98 percent of Visa 
Waiver Program passengers prior to boarding, but the remaining 2 
percent-—about 364,000 travelers-—traveled under the program without 
verified ESTA approval. In May 2011, GAO reported that DHS had not yet 
completed a review of these cases to know to what extent they pose a 
risk to the program and recommended that it establish timeframes for 
regular review. DHS concurred and has since established procedures to 
review a sample of noncompliant passengers on a quarterly basis. 
Further, to meet 9/11 Act requirements, DHS requires that Visa Waiver 
Program countries enter into three information-sharing agreements with 
the United States; however, only 21 of the 36 countries had fully 
complied with this requirement as of November 2011, and many of the 
signed agreements have not been implemented. DHS, with the support of 
interagency partners, has established a compliance schedule requiring 
the remaining member countries to finalize these agreements by June 
2012. Moreover, DHS, in coordination with the Departments of State and 
Justice, has developed measures short of termination that could be 
applied on a case-by-case basis to countries not meeting their 
compliance date. 

Federal agencies take actions against a small portion of the estimated 
overstay population, but strengthening planning could improve overstay 
enforcement. ICE’s Counterterrorism and Criminal Exploitation Unit 
(CTCEU) is the lead agency responsible for overstay enforcement. CTCEU 
arrests a small portion of the estimated 4 to 5.5 million overstays in 
the United States because of, among other things, competing 
priorities, but ICE expressed an intention to augment its overstay 
enforcement resources. From fiscal years 2006 through 2010, ICE 
reported devoting about 3 percent of its total field office 
investigative hours to CTCEU overstay investigations. ICE was 
considering assigning some responsibility for noncriminal overstay 
enforcement to its Enforcement and Removal Operations (ERO) 
directorate, which apprehends and removes aliens subject to removal 
from the United States. In April 2011, GAO reported that by developing 
a time frame for assessing needed resources and using the assessment 
findings, as appropriate, ICE could strengthen its planning efforts. 
DHS concurred and stated that ICE planned to identify resources needed 
to transition this responsibility to ERO as part of its fiscal year 
2013 resource planning process. 

What GAO Recommends: 

GAO made recommendations in prior reports for DHS to, among other 
things, strengthen plans to address certain risks of the Visa Waiver 
Program and for overstay enforcement efforts. DHS generally concurred 
with these recommendations and has actions planned or underway to 
address them. 

View [hyperlink, http://www.gao.gov/products/GAO-12-287T] or key 
components. For more information, contact Richard M. Stana at (202) 
512-8777 or stanar@gao.gov. 

[End of section] 

Chairman Gallegly, Ranking Member Lofgren, and Members of the 
Subcommittee: 

I am pleased to be here today to discuss the Visa Waiver Program, 
which allows nationals from 36 countries to apply for admission to the 
United States as temporary visitors for business or pleasure without 
first obtaining a visa from a U.S. consular office abroad.[Footnote 1] 
This statement also addresses activities to identify and take 
enforcement against overstays--individuals who were admitted to the 
United States legally on a temporary basis--either with a visa, or in 
some cases, as a visitor who was allowed to enter without a visa such 
as under the Visa Waiver Program--but then overstayed their authorized 
periods of admission.[Footnote 2] From fiscal year 2005 through fiscal 
year 2010, over 98 million visitors were admitted to the United States 
under the Visa Waiver Program. During this same time period, the 
Department of State issued over 36 million nonimmigrant visas for 
business travel, pleasure, tourism, medical treatment, or for foreign 
and cultural exchange student programs, among other things.[Footnote 
3] In addition, the most recent estimates from the Pew Hispanic Center 
approximated that, in 2006, out of an unauthorized resident alien 
population of 11.5 million to 12 million in the United States, about 4 
million to 5.5 million were overstays.[Footnote 4] 

The Visa Waiver Program was established in 1986 to facilitate 
international travel without threatening U.S. security.[Footnote 5] 
The Implementing Recommendations of the 9/11 Commission Act of 2007 
(9/11 Act) called for DHS, which implements the Visa Waiver Program, 
to take steps to enhance the security of the program.[Footnote 6] 
Among the mandated changes were (1) the implementation of an 
electronic system for travel authorization designed to determine in 
advance of travel the eligibility of Visa Waiver Program applicants to 
travel to the United States under the program, (2) a requirement that 
all Visa Waiver Program countries enter into agreements to share 
information with the United States on whether citizens and nationals 
of that country traveling to the United States represent a threat to 
the security or welfare of the United States, and (3) a requirement 
that all Visa Waiver Program countries enter into agreements with the 
United States to report or make available lost and stolen passport 
data to the United States. Prior to these changes, Congress also 
mandated in 2002 that DHS evaluate and report on the security risks 
posed by each Visa Waiver Program country's participation in the 
program at least once every 2 years. 

DHS has certain responsibilities for implementing the Visa Waiver 
Program as well as for overstay enforcement efforts. Overall, DHS is 
responsible for establishing visa policy, including policy for the 
Visa Waiver Program. Within DHS, U.S. Customs and Border Protection 
(CBP) is tasked with, among other duties, inspecting all people 
applying for entry to the United States to determine their 
admissibility to the country and screening Visa Waiver Program 
applicants to determine their eligibility to travel to the United 
States under the program. DHS's U.S. Immigration and Customs 
Enforcement (ICE) is the lead agency for enforcing immigration law in 
the interior of the United States and is primarily responsible for 
overstay enforcement. Within ICE, the Counterterrorism and Criminal 
Exploitation Unit (CTCEU) is primarily responsible for overstay 
investigations, including investigations of Visa Waiver Program 
participants who overstay their authorized periods of admission. 
Further, the Department of State is responsible for adjudicating visas 
for foreign nationals seeking admission to the United States. 

Since September 11, 2001, GAO has published 5 reports on the Visa 
Waiver Program. The reports have examined, for example, DHS's 
assessment of security risks associated with the program and proposed 
changes to the program. As requested, my testimony will cover the 
following key issues: (1) challenges and weaknesses in the Visa Waiver 
Program; and (2) efforts to take enforcement action against overstays 
and reported results. This testimony is based on our prior reports on 
the Visa Waiver Program, and overstay enforcement efforts published in 
September 2008 and May 2011, and April 2011, respectively.[Footnote 7] 
For these reports, we examined program documentation, such as standard 
operating procedures, guidance for investigations, and implementation 
plans. We also interviewed DHS and Department of State officials. 
Additional details on the scope and methodology are available in our 
published reports. We updated selected information from these reports 
on, for example, the number of signed information-sharing agreements 
by examining updated documents from September and November 2011 such 
as correspondence provided by DHS. All of our work was conducted in 
accordance with generally accepted government auditing standards. 

Further Steps Are Needed to Address Potential Risks in the Visa Waiver 
Program: 

As we reported in May 2011, DHS implemented the Electronic System for 
Travel Authorization (ESTA) to meet a statutory requirement intended 
to enhance Visa Waiver Program security and took steps to minimize the 
burden on travelers to the United States added by the new requirement. 
[Footnote 8] However, DHS had not fully evaluated security risks 
related to the small percentage of Visa Waiver Program travelers 
without verified ESTA approval. DHS developed ESTA to collect 
passenger data and complete security checks on the data before 
passengers board a U.S. bound carrier. DHS requires applicants for 
Visa Waiver Program travel to submit biographical information and 
answers to eligibility questions through ESTA prior to travel. 
Travelers whose ESTA applications are denied must apply for a U.S. 
visa for travel to the United States. In developing and implementing 
ESTA, DHS took several steps to minimize the burden associated with 
ESTA use. For example, ESTA reduced the requirement that passengers 
provide biographical information to DHS officials from every trip to 
once every 2 years. In addition, because of ESTA, DHS informed 
passengers who do not qualify for Visa Waiver Program travel that they 
need to apply for a visa before they travel to the United States. 
Moreover, most travel industry officials we interviewed in six Visa 
Waiver Program countries praised DHS's widespread ESTA outreach 
efforts, reasonable implementation time frames, and responsiveness to 
feedback, but expressed dissatisfaction over ESTA fees paid by ESTA 
applicants.[Footnote 9] 

In 2010, airlines complied with the requirement to verify ESTA 
approval for almost 98 percent of the Visa Waiver Program passengers 
prior to boarding, but the remaining 2 percent--about 364,000 
travelers--traveled under the Visa Waiver Program without verified 
ESTA approval. In addition, about 650 of these passengers traveled to 
the United States with a denied ESTA. As we reported in May 2011, DHS 
had not yet completed a review of these cases to know to what extent 
they pose a risk to the program. At the time of our report, DHS 
officials told us that there was no official agency plan for 
monitoring and oversight of ESTA. DHS tracked some data on passengers 
that traveled under the Visa Waiver Program without verified ESTA 
approval but did not track other data that would help officials know 
the extent to which noncompliance poses a risk to the program. Without 
a completed analysis of noncompliance with ESTA requirements, DHS was 
unable to determine the level of risk that noncompliance poses to Visa 
Waiver Program security and to identify improvements needed to 
minimize noncompliance. In addition, without analysis of data on 
travelers who were admitted to the United States without a visa after 
being denied by ESTA, DHS could not determine the extent to which ESTA 
was accurately identifying individuals who should be denied travel 
under the program. In May 2011, we recommended that DHS establish time 
frames for the regular review and documentation of cases of Visa 
Waiver Program passengers traveling to a U.S. port of entry without 
verified ESTA approval. DHS concurred with our recommendation and has 
established procedures to review quarterly a sample of noncompliant 
passengers to evaluate potential security risks associated with the 
ESTA program. 

Further, in May 2011 we reported that to meet certain statutory 
requirements, DHS requires that Visa Waiver Program countries enter 
into three information-sharing agreements with the United States; 
however, only half of the countries had fully complied with this 
requirement and many of the signed agreements have not been 
implemented.[Footnote 10] The 9/11 Act specifies that each Visa Waiver 
Program country must enter into agreements with the United States to 
share information regarding whether citizens and nationals of that 
country traveling to the United States represent a threat to the 
security or welfare of the United States and to report lost or stolen 
passports. DHS, in consultation with other agencies, has determined 
that Visa Waiver Program countries can satisfy the requirement by 
entering into the following three bilateral agreements: (1) Homeland 
Security Presidential Directive (HSPD) 6, (2) Preventing and Combating 
Serious Crime (PCSC), and (3) Lost and Stolen Passports.[Footnote 11] 

* HSPD-6 agreements establish a procedure between the United States 
and partner countries to share watchlist information about known or 
suspected terrorists. As of January 2011, 19 of the 36 Visa Waiver 
Program countries had signed HSPD-6 agreements, and 13 had begun 
sharing information according to the signed agreements. Noting that 
the federal government continues to negotiate HSPD-6 agreements with 
Visa Waiver Program countries, officials cited concerns regarding 
privacy and data protection expressed by many Visa Waiver Program 
countries as reasons for the delayed progress. According to these 
officials, in some cases, domestic laws of Visa Waiver Program 
countries limit their ability to commit to sharing some information, 
thereby complicating and slowing the negotiation process. In November 
2011, a senior DHS official reported that 21 of the 36 Visa Waiver 
Program countries have signed HSPD-6 agreements. 

* The PCSC agreements establish the framework for law enforcement 
cooperation by providing each party automated access to the other's 
criminal databases that contain biographical, biometric, and criminal 
history data. As of January 2011, 18 of the 36 Visa Waiver Program 
countries had met the PCSC information-sharing agreement requirement, 
but the networking modifications and system upgrades required to 
enable this information sharing to take place have not been completed 
for any Visa Waiver Program countries. According to officials, DHS is 
frequently not in a position to influence the speed of PCSC 
implementation for a number of reasons. For example, according to DHS 
officials, some Visa Waiver Program countries require parliamentary 
ratification before implementation can begin. Also U.S. and partner 
country officials must develop a common information technology 
architecture to allow queries between databases. A senior DHS official 
reported in November 2011 that the number of Visa Waiver Program 
countries meeting the PCSC requirement had risen to 21. 

* The 9/11 Act requires Visa Waiver Program countries to enter into an 
agreement with the United States to report, or make available to the 
United States through Interpol or other means as designated by the 
Secretary of Homeland Security, information about the theft or loss of 
passports. As of November 2011, all Visa Waiver Program countries were 
sharing lost and stolen passport information with the United States, 
and 35 of the 36 Visa Waiver Program countries had entered into Lost 
and Stolen Passport agreements according to senior DHS officials. 

DHS, with the support of interagency partners, established a 
compliance schedule requiring the last of the Visa Waiver Program 
countries to finalize these agreements by June 2012. Although 
termination from the Visa Waiver Program is one potential consequence 
for countries not complying with the information-sharing agreement 
requirement, U.S. officials have described it as undesirable. DHS, in 
coordination with the Department of State and the Department of 
Justice, developed measures short of termination that could be applied 
to countries not meeting their compliance date. Specifically, DHS 
helped write a classified strategy document that outlines a 
contingency plan listing possible measures short of termination from 
the Visa Waiver Program that may be taken if a country does not meet 
its specified compliance date for entering into information-sharing 
agreements. The strategy document provides steps that would need to be 
taken prior to selecting and implementing one of these measures. 
According to officials, DHS plans to decide which measures to apply on 
a case-by-case basis. 

In addition, as of May 2011, DHS had not completed half of the most 
recent biennial reports on Visa Waiver Program countries' security 
risks in a timely manner. In 2002, Congress mandated that, at least 
once every 2 years, DHS evaluate the effect of each country's 
continued participation in the program on the security, law 
enforcement, and immigration interests of the United States.[Footnote 
12] According to officials, DHS assesses, among other things, 
counterterrorism capabilities and immigration programs. However, DHS 
had not completed the latest biennial reports for 18 of the 36 Visa 
Waiver Program countries in a timely manner, and over half of these 
reports are more than 1 year overdue. Further, in the case of 2 
countries, DHS was unable to demonstrate that it had completed reports 
in the last 4 years. DHS cited a number of reasons for the reporting 
delays. For example, DHS officials said that they intentionally 
delayed report completion because they frequently did not receive 
mandated intelligence assessments in a timely manner and needed to 
review these before completing Visa Waiver Program country biennial 
reports. We noted that DHS had not consistently submitted these 
reports in a timely matter since the legal requirement was made 
biennial in 2002, and recommended that DHS take steps to address 
delays in the biennial country review process so that the mandated 
country reports can be completed on time. DHS concurred with our 
recommendation and reported that it would consider process changes to 
address our concerns with the timeliness of continuing Visa Waiver 
Program reports. 

Federal Agencies Take Actions against a Small Portion of the Estimated 
Overstay Population: 

ICE Investigates Few In-Country Overstays, but Its Efforts Could 
Benefit from Improved Planning: 

As we reported in April 2011, ICE CTCEU investigates and arrests a 
small portion of the estimated in-country overstay population due to, 
among other things, ICE's competing priorities; however, these efforts 
could be enhanced by improved planning and performance management. 
CTCEU, the primary federal entity responsible for taking enforcement 
action to address in-country overstays, identifies leads for overstay 
cases; takes steps to verify the accuracy of the leads it identifies 
by, for example, checking leads against multiple databases; and 
prioritizes leads to focus on those the unit identifies as being most 
likely to pose a threat to national security or public safety. CTCEU 
then requires field offices to initiate investigations on all 
priority, high-risk leads it identifies. 

According to CTCEU data, as of October 2010, ICE field offices had 
closed about 34,700 overstay investigations that CTCEU headquarters 
assigned to them from fiscal year 2004 through 2010.[Footnote 13] 
These cases resulted in approximately 8,100 arrests (about 23 percent 
of the 34,700 investigations), relative to a total estimated overstay 
population of 4 million to 5.5 million.[Footnote 14] About 26,700 of 
those investigations (or 77 percent) resulted in one of three 
outcomes.[Footnote 15] In 9,900 investigations, evidence was uncovered 
indicating that the suspected overstay had departed the United States. 
In 8,600 investigations, evidence was uncovered indicating that the 
subject of the investigation was in-status (e.g., the subject filed a 
timely application with the United States Citizenship and Immigration 
Services (USCIS) to change his or her status and/or extend his or her 
authorized period of admission in the United States). Finally, in 
8,200 investigations, CTCEU investigators exhausted all investigative 
leads and could not locate the suspected overstay.[Footnote 16] Of the 
approximately 34,700 overstay investigations assigned by CTCEU 
headquarters that ICE field offices closed from fiscal year 2004 
through 2010, ICE officials attributed the significant portion of 
overstay cases that resulted in a departure finding, in-status 
finding, or with all leads being exhausted generally to difficulties 
associated with locating suspected overstays and the timeliness and 
completeness of data in DHS's systems used to identify overstays. 

Further, ICE reported allocating a small percentage of its resources 
in terms of investigative work hours to overstay investigations since 
fiscal year 2006, but the agency expressed an intention to augment the 
resources it dedicates to overstay enforcement efforts moving forward. 
Specifically, from fiscal years 2006 through 2010, ICE reported 
devoting from 3.1 to 3.4 percent of its total field office 
investigative hours to CTCEU overstay investigations. ICE attributed 
the small percentage of investigative resources it reported allocating 
to overstay enforcement efforts primarily to competing enforcement 
priorities. According to the ICE Assistant Secretary, ICE has 
resources to remove 400,000 aliens per year, or less than 4 percent of 
the estimated removable alien population in the United States. In June 
2010, the Assistant Secretary stated that ICE must prioritize the use 
of its resources to ensure that its efforts to remove aliens reflect 
the agency's highest priorities, namely nonimmigrants, including 
suspected overstays, who are identified as high risk in terms of being 
most likely to pose a risk to national security or public safety. As a 
result, ICE dedicated its limited resources to addressing overstays it 
identified as most likely to pose a potential threat to national 
security or public safety and did not generally allocate resources to 
address suspected overstays that it assessed as non-criminal and low 
risk. ICE indicated it may allocate more resources to overstay 
enforcement efforts moving forward, and that it planned to focus 
primarily on suspected overstays who ICE has identified as high risk 
or who recently overstayed their authorized periods of admission. 

ICE was considering assigning some responsibility for noncriminal 
overstay enforcement to its Enforcement and Removal Operations (ERO) 
directorate, which has responsibility for apprehending and removing 
aliens who do not have lawful immigration status from the United 
States. However, ERO did not plan to assume this responsibility until 
ICE assessed the funding and resources doing so would require. ICE had 
not established a time frame for completing this assessment. We 
reported in April 2011 that by developing such a time frame and 
utilizing the assessment findings, as appropriate, ICE could 
strengthen its planning efforts and be better positioned to hold staff 
accountable for completing the assessment. We recommended that ICE 
establish a target time frame for assessing the funding and resources 
ERO would require in order to assume responsibility for civil overstay 
enforcement and use the results of that assessment. DHS officials 
agreed with our recommendation and stated that ICE planned to identify 
resources needed to transition this responsibility to ERO as part of 
its fiscal year 2013 resource planning process. 

More Reliable, Accessible Data Could Improve DHS's Efforts to Identify 
and Share Information on Overstays: 

DHS has not yet implemented a comprehensive biometric system to match 
available information provided by foreign nationals upon their arrival 
and departure from the United States. In 2002, DHS initiated the 
United States Visitor and Immigrant Status Indicator Technology 
Program (US-VISIT) to develop a comprehensive entry and exit system to 
collect biometric data from aliens traveling through U.S. ports of 
entry. In 2004, US-VISIT initiated the first step of this program by 
collecting biometric data on aliens entering the United States. In 
August 2007, we reported that while US-VISIT biometric entry 
capabilities were operating at air, sea, and land ports of entry, exit 
capabilities were not, and that DHS did not have a comprehensive plan 
or a complete schedule for biometric exit implementation.[Footnote 17] 
Moreover, in November 2009, we reported that DHS had not adopted an 
integrated approach to scheduling, executing, and tracking the work 
that needed to be accomplished to deliver a comprehensive exit 
solution as part of the US-VISIT program. We concluded that, without a 
master schedule that was integrated and derived in accordance with 
relevant guidance, DHS could not reliably commit to when and how it 
would deliver a comprehensive exit solution or adequately monitor and 
manage its progress toward this end. We recommended that DHS ensure 
that an integrated master schedule be developed and maintained. DHS 
concurred and reported, as of July 2011, that the documentation of 
schedule practices and procedures was ongoing, and that an updated 
schedule standard, management plan, and management process that are 
compliant with schedule guidelines were under review. 

In the absence of a comprehensive biometric entry and exit system for 
identifying and tracking overstays, US-VISIT and CTCEU primarily 
analyze biographic entry and exit data collected at land, air, and sea 
ports of entry to identify overstays. In April 2011, we reported that 
DHS's efforts to identify and report on visa overstays were hindered 
by unreliable data. Specifically, CBP does not inspect travelers 
exiting the United States through land ports of entry, including 
collecting their biometric information, and CBP did not provide a 
standard mechanism for nonimmigrants departing the United States 
through land ports of entry to remit their arrival and departure 
forms. Nonimmigrants departing the United States through land ports of 
entry turn in their forms on their own initiative. According to CBP 
officials, at some ports of entry, CBP provides a box for 
nonimmigrants to drop off their forms, while at other ports of entry 
departing nonimmigrants may park their cars, enter the port of entry 
facility, and provide their forms to a CBP officer. These forms 
contain information, such as arrival and departure dates, used by DHS 
to identify overstays. If the benefits outweigh the costs, a standard 
mechanism to provide nonimmigrants with a way to turn in their arrival 
and departure forms could help DHS obtain more complete and reliable 
departure data for identifying overstays. We recommended that the 
Commissioner of CBP analyze the costs and benefits of developing a 
standard mechanism for collecting these forms at land ports of entry, 
and do so to the extent that benefits outweigh the costs. CBP agreed 
with our recommendation and in September 2011 stated that it planned 
to complete a cost-effective independent evaluation of possible 
solutions and formulate an action plan based on the evaluation for 
implementation by March 2012. 

Further, we previously reported on weaknesses in DHS processes for 
collecting departure data, and how these weaknesses impact the 
determination of overstay rates. The 9/11 Act required that DHS 
certify that a system is in place that can verify the departure of not 
less than 97 percent of foreign nationals who depart through U.S. 
airports in order for DHS to expand the Visa Waiver Program.[Footnote 
18] In September 2008, we reported that DHS's methodology for 
comparing arrivals and departures for the purpose of departure 
verification would not inform overall or country-specific overstay 
rates because DHS's methodology did not begin with arrival records to 
determine if those foreign nationals departed or remained in the 
United States beyond their authorized periods of admission.[Footnote 
19] Rather, DHS's methodology started with departure records and 
matched them to arrival records. As a result, DHS's methodology 
counted overstays who left the country, but did not identify overstays 
who have not departed the United States and appear to have no 
intention of leaving. We recommended that DHS explore cost-effective 
actions necessary to further improve the reliability of overstay data. 
DHS concurred and reported that it is taking steps to improve the 
accuracy and reliability of the overstay data, by efforts such as 
continuing to audit carrier performance and working with airlines to 
improve the accuracy and completeness of data collection. Moreover, by 
statute, DHS is required to submit an annual report to Congress 
providing numerical estimates of the number of aliens from each 
country in each nonimmigrant classification who overstayed an 
authorized period of admission that expired during the fiscal year 
prior to the year for which the report is made.[Footnote 20] DHS 
officials stated that the department has not provided Congress annual 
overstay estimates regularly since 1994 because officials do not have 
sufficient confidence in the quality of the department's overstay 
data--which is maintained and generated by US-VISIT. As a result, DHS 
officials stated that the department cannot reliably report overstay 
rates in accordance with the statute. 

In addition, in April 2011 we reported that DHS took several steps to 
provide its component entities and other federal agencies with 
information to identify and take enforcement action on overstays, 
including creating biometric and biographic lookouts--or electronic 
alerts--on the records of overstay subjects that are recorded in 
databases. However, DHS did not create lookouts for the following two 
categories of overstays: (1) temporary visitors who were admitted to 
the United States using nonimmigrant business and pleasure visas and 
subsequently overstayed by 90 days or less; and (2) suspected in-
country overstays who CTCEU deems not to be a priority for 
investigation in terms of being most likely to pose a threat to 
national security or public safety. Broadening the scope of electronic 
lookouts in federal information systems could enhance overstay 
information sharing. In April 2011, we recommended that the Secretary 
of Homeland Security direct the Commissioner of Customs and Border 
Protection, the Under Secretary of the National Protection and 
Programs Directorate, and the Assistant Secretary of Immigration and 
Customs Enforcement to assess the costs and benefits of creating 
biometric and biographic lookouts for these two categories of 
overstays. Agency officials agreed with our recommendation and have 
actions under way to address it. For example, agency officials stated 
that they have met to assess the costs and benefits of creating 
lookouts for those categories of overstays. 

This concludes my prepared testimony statement. I would be pleased to 
respond to any questions that members of the Subcommittee may have. 

Contacts and Acknowledgments: 

For further information regarding this testimony, please contact 
Richard M. Stana at (202) 512-8777 or stanar@gao.gov. In addition, 
contact points for our Offices of Congressional relations and Public 
Affairs may be found on the last page of this statement. Individuals 
who made key contributions to this testimony are Rebecca Gambler, 
Acting Director; Anthony Moran, Assistant Director; Kathryn Bernet, 
Assistant Director; Jeffrey Baldwin-Bott; Frances Cook; Kevin Copping; 
and Taylor Matheson. 

[End of section] 

Related GAO Products: 

Visa Waiver Program: DHS Has Implemented the Electronic System for 
Travel Authorization, but Further Steps Needed to Address Potential 
Program Risks. [hyperlink, http://www.gao.gov/products/GAO-11-335]. 
(Washington, D.C., May 5, 2011). 

Overstay Enforcement: Additional Mechanisms for Collecting, Assessing, 
and Sharing Data Could Strengthen DHS's Efforts but Would Have Costs. 
[hyperlink, http://www.gao.gov/products/GAO-11-411]. (Washington, 
D.C., April 15, 2011). 

Visa Waiver Program: Actions Are Needed to Improve Management of the 
Expansion Process, and to Assess and Mitigate Program Risks. 
[hyperlink, http://www.gao.gov/products/GAO-08-967]. (Washington, 
D.C., September 15, 2008). 

Border Security: State Department Should Plan for Potentially 
Significant Staffing and Facilities Shortfalls Caused by Changes in 
the Visa Waiver Program. [hyperlink, 
http://www.gao.gov/products/GAO-08-623]. (Washington, D.C., May 22, 
2008). 

Border Security: Stronger Actions Needed to Assess and Mitigate Risks 
of the Visa Waiver Program. [hyperlink, 
http://www.gao.gov/products/GAO-06-854]. (Washington, D.C., July 28, 
2006). 

Overstay Tracking: A Key Component of Homeland Security and a Layered 
Defense. [hyperlink, http://www.gao.gov/products/GAO-04-82]. 
(Washington, D.C., May 21, 2004). 

Border Security: Implications of Eliminating the Visa Waiver Program. 
[hyperlink, http://www.gao.gov/products/GAO-03-38]. (Washington, D.C., 
November 22, 2002). 

[End of section] 

Footnotes: 

[1] In order to qualify for the Visa Waiver Program, a country must 
meet various requirements, such as entering into an agreement with the 
United States to report lost or stolen passports within a strict time 
limit and in a manner specified in the agreement. Currently, 36 
countries participate in the Visa Waiver Program: Andorra, Australia, 
Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, 
France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, 
Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the 
Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, 
Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the 
United Kingdom. Visitors who are also allowed to seek admission 
without a visa include citizens of Canada and the British Overseas 
Territory of Bermuda (and certain residents of other adjacent islands, 
such as the Bahamas) under certain circumstances. 

[2] In-country overstays refer to nonimmigrants who have exceeded 
their authorized periods of admission and remain in the United States 
without lawful status, while out-of-country overstays refer to 
individuals who have departed the United States but who, on the basis 
of arrival and departure information, stayed beyond their authorized 
periods of admission. 

[3] Temporary visitors to the United States generally are referred to 
as "nonimmigrants." For a listing and descriptions of nonimmigrant 
categories, see 8 U.S.C. § 1101(a)(15); see also 8 C.F.R. § 
214.1(a)(1)-(2). Generally, nonimmigrants wishing to visit the United 
States gain permission to apply for admission to the country through 
one of two ways. First, those eligible for the Visa Waiver Program 
apply online to establish eligibility to travel under the program 
prior to departing for the United States (unless they are seeking 
admission at a land port of entry, in which case eligibility is 
established at the time of application for admission). Second, those 
not eligible for the Visa Waiver Program and not otherwise exempt from 
the visa requirement must visit the U.S. consular office to obtain a 
visa. Upon arriving at a port of entry, nonimmigrants must undergo 
inspection by U.S. Customs and Border Protection officers, who 
determine whether or not they may be admitted into the United States. 

[4] Pew Hispanic Center, Modes of Entry for the Unauthorized Migrant 
Population (Washington, D.C.: May 22, 2006). 

[5] The Immigration Reform and Control Act of 1986 (Pub. L. No. 99-
603, 100 Stat. 3359) created the Visa Waiver Program as a pilot in 
1986. It became a permanent program in 2000 under the Visa Waiver 
Permanent Program Act (Pub. L. No. 106-396, 114 Stat. 1637 (2000)). 

[6] Pub. L. No. 110-53, § 711(d), 121 Stat. 266, 341-45. 

[7] GAO, Visa Waiver Program: Actions Are Needed to Improve Management 
of the Expansion Process, and to Assess and Mitigate Program Risks, 
[hyperlink, http://www.gao.gov/products/GAO-08-967] (Washington, D.C.: 
Sept. 15, 2008),Visa Waiver Program: DHS Has Implemented the 
Electronic System for Travel Authorization, but Further Steps Needed 
to Address Potential Program Risks, [hyperlink, 
http://www.gao.gov/products/GAO-11-335] (Washington, D.C.: May 5, 
2011); and Overstay Enforcement: Additional Mechanisms for Collecting, 
Assessing, and Sharing Data Could Strengthen DHS's Efforts but Would 
Have Costs, [hyperlink, http://www.gao.gov/products/GAO-11-411] 
(Washington, D.C.: Apr. 15, 2011). 

[8] See 8 U.S.C. § 1187(h)(3). 

[9] In September 2010, the U.S. government began to charge ESTA 
applicants a $14 fee when they applied for ESTA approval, including 
$10 for the creation of a corporation to promote travel to the United 
States and $4 to fund ESTA operations. 

[10] See 8 U.S.C. § 1187(c)(2)(D), (F). 

[11] For the HSPD-6 and PCSC agreements, DHS made the determination in 
consultation with State and Justice. For the Lost and Stolen Passports 
agreement, DHS made the determination in consultation with State. 

[12] See Pub. L. No. 107-173, § 307(a)(2), 116 Stat. 543, 556. 

[13] CTCEU also investigates suspected Visa Waiver Program overstays, 
out-of-status students and violators of the National Security Entry-
Exit Registration System, a program that requires certain visitors or 
nonimmigrants to register with DHS for national security reasons. For 
the purpose of this discussion, these investigations are referred to 
collectively as "overstay" investigations. In addition to CTCEU 
investigative efforts, other ICE programs within Enforcement and 
Removal Operations may take enforcement action against overstays, 
though none of these programs solely or directly focus on overstay 
enforcement. For example, if the Enforcement and Removal Operations 
Criminal Alien Program identifies a criminal alien who poses a threat 
to public safety and is also an overstay, the program may detain and 
remove that criminal alien from the United States. 

[14] The most recent estimates from the Pew Hispanic Center 
approximated that, in 2006, out of an unauthorized resident alien 
population of 11.5 million to 12 million in the United States, about 4 
million to 5.5 million were overstays. Pew Hispanic Center, Modes of 
Entry for the Unauthorized Migrant Population (Washington, D.C.: May 
22, 2006). 

[15] Investigations resulting and not resulting in arrest do not total 
34,700 due to rounding. 

[16] With regard to the second outcome, that the subject is found to 
be in-status, under certain circumstances, an application for 
extension or change of status can temporarily prevent a visitor's 
presence in the United States from being categorized as unauthorized. 
See Donald Neufeld, Acting Associate Director, Domestic Operations 
Directorate, USCIS, "Consolidation of Guidance Concerning Unlawful 
Presence for Purposes of Sections 212(a)(9)(B)(i) and 
212(a)(9)(C)(i)(I) of the [Immigration and Nationality] Act," 
memorandum, Washington, D.C., May 6, 2009. 

[17] The purpose of US-VISIT is to provide biometric (e.g., 
fingerprint) identification--through the collection, maintenance, and 
sharing of biometric and selected biographic data--to authorized DHS 
and other federal agencies. See GAO, Homeland Security: U.S. Visitor 
and Immigrant Status Program's Longstanding Lack of Strategic 
Direction and Management Controls Needs to Be Addressed, [hyperlink, 
http://www.gao.gov/products/GAO-07-1065] (Washington, D.C.: Aug. 31, 
2007). 

[18] 8 U.S.C. § 1187(c)(8). 

[19] [hyperlink, http://www.gao.gov/products/GAO-08-967]. 

[20] 8 U.S.C. § 1376(b). 

[End of section] 

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