VISA WAIVER PROGRAM

Additional Actions Needed 

to Address Risks and 

Strengthen Overstay 

Enforcement 

Statement of Richard M. Stana, Director 

Homeland Security and Justice 

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 

GAO-12-287T 

United States Government Accountability Office

GAO 
 United States Government Accountability Office 

Highlights of GAO-12-287T a testimony before 

the Subcommittee on Immigration Policy and 

Enforcement, Committee on the Judiciary, 

House of Representatives 

December 7, 2011 

VISA WAIVER PROGRAM 

Additional Actions Needed to Address Program 

Risks and Strengthen Overstay Enforcement 

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 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. 

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. 

View GAO-12-287T or key components. 

For more information, contact Richard M. 

Stana at (202) 512-8777 or stanar@gao.gov. 
 

Page 1 GAO-12-287T 

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.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.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.3

 In 

 

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. 
 

Page 2 GAO-12-287T 

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.4

The Visa Waiver Program was established in 1986 to facilitate 

international travel without threatening U.S. security.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.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 

 

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. 
 

Page 3 GAO-12-287T 

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.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. 

 

7

GAO, Visa Waiver Program: Actions Are Needed to Improve Management of the 

Expansion Process, and to Assess and Mitigate Program Risks, 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, 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, GAO-11-411 (Washington, D.C.: 

Apr. 15, 2011). 
 

Page 4 GAO-12-287T 

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.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.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 

 

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. 

Further Steps Are 

Needed to Address 

Potential Risks in the 

Visa Waiver Program 
 

Page 5 GAO-12-287T 

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.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.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 

 

10See 8 U.S.C. § 1187(c)(2)(D), (F). 

11For 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. 
 

Page 6 GAO-12-287T 

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 
 

Page 7 GAO-12-287T 

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.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. 

 

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

Page 8 GAO-12-287T 

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 2010.13 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.14 About 26,700 of those investigations (or 

 

13CTCEU 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. 

14The 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). 

Federal Agencies 

Take Actions against a 

Small Portion of the 

Estimated Overstay 

Population 

ICE Investigates Few InCountry Overstays, but Its 

Efforts Could Benefit from 

Improved Planning 
 

Page 9 GAO-12-287T 

77 percent) resulted in one of three outcomes.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.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 

 

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

16With 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. 
 

Page 10 GAO-12-287T 

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 noncriminal 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. 

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 

More Reliable, Accessible 

Data Could Improve DHS’s 

Efforts to Identify and 

Share Information on 

Overstays 
 

Page 11 GAO-12-287T 

implementation.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 

 

17The 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, GAO-07-1065 (Washington, D.C.: 

Aug. 31, 2007). 
 

Page 12 GAO-12-287T 

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.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.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.20 DHS officials stated that the department has not 

provided Congress annual overstay estimates regularly since 1994 

 

188 U.S.C. § 1187(c)(8). 

19GAO-08-967. 

208 U.S.C. § 1376(b). 
 

Page 13 GAO-12-287T 

because officials do not have sufficient confidence in the quality of the 

department’s overstay data—which is maintained and generated by USVISIT. 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. 

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. 

Contacts and 

Acknowledgments 
Related GAO Products 

Page 14 GAO-12-287T 

Visa Waiver Program: DHS Has Implemented the Electronic System for 

Travel Authorization, but Further Steps Needed to Address Potential 

Program Risks. 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. 

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. 

GAO-08-967. (Washington, D.C., Sep 15, 2008). 

Border Security: State Department Should Plan for Potentially Significant 

Staffing and Facilities Shortfalls Caused by Changes in the Visa Waiver 

Program. GAO-08-623. (Washington, D.C., May 22, 2008). 

Border Security: Stronger Actions Needed to Assess and Mitigate Risks 

of the Visa Waiver Program. GAO-06-854. (Washington, D.C., Jul 28, 

2006). 

Overstay Tracking: A Key Component of Homeland Security and a 

Layered Defense. GAO-04-82. (Washington, D.C., May 21, 2004). 

Border Security: Implications of Eliminating the Visa Waiver Program.

GAO-03-38. (Washington, D.C., Nov 22, 2002). 

Related GAO Products 

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