VISA WAIVER PROGRAM

Additional Actions Needed 

to Mitigate Risks and 

Strengthen Overstay 

Enforcement 

Statement of Rebecca Gambler, Acting Director 

Homeland Security and Justice 

and

Michael J. Courts, Acting Director

International Affairs and Trade 

Testimony 

Before the Subcommittee on Immigration, 

Refugees, and Border Security, Committee 

on the Judiciary, U.S. Senate

For Release on Delivery 

Expected at 10:00 a.m. EDT 

Tuesday, March 27, 2012 

GAO-12-599T

United States Government Accountability Office

GAO
United States Government Accountability Office

Highlights of GAO-12-599T, a testimony 

before the Subcommittee on Immigration, 

Refugees, and Border Security, Committee on 

the Judiciary, U.S. Senate 

March 27, 2012 

VISA WAIVER PROGRAM

Additional Actions Needed to Mitigate Risks and 

Strengthen Overstay Enforcement 

Why GAO Did This Study

DHS manages 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 a visa. 

From fiscal years 2005 through 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 for temporary travel to the 

country. DHS is also responsible for 

investigating overstays—unauthorized 

immigrants who entered the country 

legally 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 

products issued in September 2008; 

April, May, and December 2011; and 

selected updates from DHS as of 

March 2012 on the status of DHS’s 

efforts to implement the 9/11 Act 

requirements and to address prior 

GAO recommendations. 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 the Department of Homeland Security (DHS) 

has taken to improve the security of the Visa Waiver Program; but, additional 

risks remain. In May 2011, GAO reported that DHS implemented the Electronic 

System for Travel Authorization (ESTA), required by the Implementing 

Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), and took 

steps to minimize the burden associated with this requirement. DHS requires 

Visa Waiver Program travelers to submit biographical information and answers to 

eligibility questions through ESTA prior to travel. DHS made efforts to minimize 

the burden imposed by this 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 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, per the 9/11 Act, DHS requires Visa 

Waiver Program countries to enter into three information-sharing agreements 

with the United States; however, DHS reported that only about half of the 36 

countries have fully complied with this requirement as of March 2012, and many

of the signed agreements have not been implemented. DHS, with its interagency 

partners, established a compliance schedule to finalize these agreements by 

June 2012. Also, DHS and its interagency partners have developed measures 

short of termination that could be applied on a case-by-case basis to countries 

not meeting their compliance date.

In April 2011, GAO reported that federal agencies take actions against a small 

portion of overstays, but improving planning could strengthen overstay 

enforcement. Immigration and Customs Enforcement’s (ICE) Counterterrorism 

and Criminal Exploitation Unit (CTCEU) is 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 recommended that developing a time frame for assessing 

needed resources ICE could strengthen ICE’s 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-12-599T or key components.

For more information, contact Rebecca 

Gambler at (202) 512-6912 or 

gamblerr@gao.gov. 
 

Page 1 GAO-12-599T 

Chairman Schumer, Ranking Member Cornyn, 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 years 2005 

through 2010, more than 98 million visitors were admitted to the United 

States under the Visa Waiver Program. During this same time period, the 

Department of State issued more than 36 million nonimmigrant visas for 

business travel, pleasure, tourism, medical treatment, or for foreign and 

cultural exchange student programs, among other things.3

 

1

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. 

In addition, the 

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-12-599T 

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 promote the 

effective use of government resources and facilitate international travel 

without jeopardizing U.S. security.5 We have reported that the program 

was designed to boost international business and tourism, and allow the 

Department of State to shift its consular resources to posts with higherrisk visa applicants.6 However, we have also reported that the program 

has inherent risks.7 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 its security.8

 

4

Pew Hispanic Center, Modes of Entry for the Unauthorized Migrant Population

(Washington, D.C.: May 22, 2006).

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, 

the Enhanced Border Security and Visa Entry Reform Act of 2002 

mandated that DHS evaluate and report on the security risks posed by 

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 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).

7 GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the 

Visa Waiver Program, GAO-06-854 (Washington, D.C.: July 28, 2006).

8

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

Page 3 GAO-12-599T 

each Visa Waiver Program country’s participation in the program at least 

once every 2 years.

9

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 responsible 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.10 It is also 

based on our December 2011 testimony on these issues.11

 

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

For these

10 GAO-08-967; GAO, 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).

11 GAO, Visa Waiver Program: Additional Actions Needed to Address Risks and 

Strengthen Overstay Enforcement, GAO-12-287T (Washington, D.C.: Dec. 7, 2011).
 

Page 4 GAO-12-599T 

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. In addition, this statement contains updates to selected 

information from these reports on, for example, the number of signed 

information-sharing agreements. For these updates, we examined

documentation from DHS as of March 2012. All of our work was 

conducted in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives. 

In May 2011, we reported that 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.12

 

12See 8 U.S.C. § 1187(h)(3).

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, 

Further Steps Are 

Needed to Mitigate 

Risks in the Visa 

Waiver Program
 

Page 5 GAO-12-599T 

reasonable implementation time frames, and responsiveness to feedback, 

but expressed dissatisfaction over ESTA fees paid by ESTA applicants.13

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 about half of the countries had fully complied with this 

requirement and many of the signed agreements have not been 

 

13In 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.
 

Page 6 GAO-12-599T 

implemented.14 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.15

• 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 March 2012, DHS reported that 24 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, 

 

14See 8 U.S.C. § 1187(c)(2)(D), (F).

15For 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 7 GAO-12-599T 

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. DHS reported in March 2012 that the number of Visa 

Waiver Program countries meeting the PCSC requirement had risen 

to 23. 

• 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 March 2012, all Visa Waiver Program countries were 

sharing lost and stolen passport information with the United States, 

and all of the countries had entered into Lost and Stolen Passport 

agreements, according to DHS.

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, the Enhanced Border Security and Visa Entry 

Reform Act 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 
 

Page 8 GAO-12-599T 

States.16 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, in March 2012, reported that the 

Visa Waiver Program Office had implemented a reporting process and 

schedule to address delays in completing the biennial reviews and 

associated reports. 

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 

 

16See Pub. L. No. 107-173, § 307(a)(2), 116 Stat. 543, 556.

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-12-599T 

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 2010.17 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.18 About 26,700 of those investigations (or 

77 percent) resulted in one of three outcomes.

19 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.20

 

17CTCEU 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.

Of 

the approximately 34,700 overstay investigations assigned by CTCEU 

headquarters that ICE field offices closed from fiscal year 2004 through 

18The 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). 

19Investigations resulting and not resulting in arrest do not total 34,700 due to rounding. 

20With 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-12-599T 

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 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 
 

Page 11 GAO-12-599T 

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 

implementation.21

 

21The 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, 

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.

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

Aug. 31, 2007). 

More Reliable, Accessible 

Data Could Improve DHS’s 

Efforts to Identify and 

Share Information on 

Overstays
 

Page 12 GAO-12-599T 

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.22

 

228 U.S.C. § 1187(c)(8). 

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 
 

Page 13 GAO-12-599T 

admission.23 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.24

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 

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 USVISIT. As a result, DHS officials stated that the department cannot 

reliably report overstay rates in accordance with the statute.

 

23GAO-08-967. 

248 U.S.C. § 1376(b). 
 

Page 14 GAO-12-599T 

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.

Chairman Schumer, Ranking Member Cornyn, and Members of the 

Subcommittee, this concludes my prepared statement. I would be 

pleased to respond to any questions that you may have.

For further information regarding this testimony, please contact Rebecca 

Gambler at (202) 512-6912 or gamblerr@gao.gov or Michael J. Courts at 

(202) 512-8980 or courtsm@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 Kathryn H. Bernet, Assistant Director; Anthony Moran, 

Assistant Director; Frances Cook; Nanette Barton; and, Wendy Johnson.

Contacts and 

Acknowledgments
Related GAO Products

Page 15 GAO-12-599T 

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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