The Department of Homeland Security recently issued their annual report on departures and overstays for all foreign nationals who were expected to depart between October 1, 2015 and September 30, 2016. The report accounts for 96.02% of all air and sea nonimmigrant admissions to the United States in FY2016, with the remaining percentage largely consisting of C and D nonimmigrants (in-transit aliens/airline crewmembers) that present unique challenges in obtaining entry/exit data. U.S. Customs and Border Protection is improving their reporting for land admissions as well so those numbers can be presented in the future as well. For the purposes of their report, DHS has identified two types of visa overstays: (1) individuals for whom no departure has been recorded and are likely still in the U.S., and (2) individuals who have a recorded departure after their lawful period of admission expired.
DHS reports that there were 50,437,278 in-scope nonimmigrant admissions to the U.S. through air or sea ports who were expected to depart in FY2016. Of this number, DHS calculated a total overstay rate of 1.47%, or 739,478 individuals. Therefore, over 98% of nonimmigrants admitted in FY2016 departed the United States on time and abided by the terms of their admission, which is a very good percentage. However, some visa categories are more prone to overstaying than others. For example, the report notes that of the 1,457,556 foreign students expected to depart in FY2016, 5.48% overstayed their visa (F students – 6.19%; J students – 3.80%; M students – 11.60%).
The report is also country-specific. Of the Visa Waiver Program countries, Hungary, Greece, Chile, San Marino, and Slovakia have the highest percentages of visa overstays, averaging about 1.75%. Those countries that are not participating in the Visa Waiver Program have much higher overstay percentages in general, but some countries (Bhutan, Burkina Faso, Cabo Verde, Chad, Djibouti, Eritrea, Liberia, and Micronesia) exceed 15% for their total overstay rate.
Breaking down the overstay rates by country of origin for foreign students demonstrates that students from China often depart the U.S. in a timely manner. Of the 360,334 Chinese students that were expected to depart in FY2016, 94.98% did just that. Other major source countries for foreign students had similar rates of adherence to the period of lawful admission: India – 95.38%; South Korea – 94.94%; Japan – 97.08%; Saudi Arabia – 93.17%; and the United Kingdom – 97.54%. On the other hand, Chad, Congo (Kinshasa), Djibouti, and Libya all have overstay rates that hover around 40%. The worst offender, Eritrea, has a foreign student overstay rate of 77.78%. But it is important to keep in mind that these countries send far fewer students to the U.S. each year, so each overstay will drastically affect the final percentage. Nevertheless, the data on student visa overstays is a new addition for this year and may increase the number of consular 214(b) denials for students from certain countries, particularly those in Africa.
DHS is required to present an annual report of the number of foreign nationals who are admitted but overstay under Section 2(a) of the Immigration and Naturalization Service Data Management Improvement Act of 2000 (Pub. L. No. 106-215), House Report 114-668, and Senate Report 114-264.
Ryan Morgan Knight is an associate attorney with Haynes Novick Immigration in Washington, DC, focusing his practice on a broad spectrum of employment-based nonimmigrant and immigrant visas.