Keeping Track of Visa Violators

The overlooked source of the nation's illegal immigration problems that people are finally talking about.

On August 31, 2015 Reuters reported on Governor Christie’s August 31, 2015 statement that if elected president, he would engage Fed-Ex to track illegal aliens to make certain that aliens who violate their terms of admission are located.  The title of the Reuter’s article was, “Christie defends plan to monitor immigrants like FedEx tracks parcels.”  The article began with the following excerpt:

Republican presidential candidate Chris Christie pushed back on Sunday against “ridiculous” criticism of his proposal to track foreign visitors the way FedEx Corp tracks packages, saying government needs private-sector expertise to tackle illegal immigration. 

“I don’t mean people are packages, so let’s not be ridiculous,” the New Jersey governor told an interviewer on Fox News Sunday who pointed out that foreigners do not have labels on their wrists.

The notion that the private sector is intrinsically better than the government is wrong.  As you will shortly see, more than ten years ago, a private corporation, Accenture, was given the contract to implement such a tracking system.

Governor Christie is certainly right that we must be able to find aliens who go missing in the United States.  He is also absolutely correct that people are not packages.  People who ship packages want those packages to get to their customers; customers want their packages to be delivered.  Finally, packages are incapable of moving on their own.  Packages do not hide or use false aliases or bogus addresses.

The concept of tracking the arrival and departure of non-immigrant aliens – that is to say aliens who were admitted into the United States for a temporary period as tourists, students, workers or the like – is hardly new.  In point of fact, implementation of a program known as US-VISIT was one of the requirements of the _Illegal_ Immigration Reform and Immigrant Responsibility Act of 1996

The 911 Commission also mandated that such a tracking program be created as a matter of national security.  On June 1, 2004 Government Executive Magazine Reported, “Accenture wins $10 billion US VISIT contract.”  Here is how the report begins:

The Homeland Security Department on Monday announced a potentially $10 billion deal over the next five years with Accenture for a new program to track foreign visitors entering and exiting the United States, but one key Democrat expressed skepticism. 

“By harnessing the power of the best minds in the private sector, we have taken a major step toward accomplishing our goals of enhancing the security of our country while increasing efficiency at our borders,” said Asa Hutchinson, undersecretary for border and transportation security. 

The department awarded Accenture the contract on Friday and announced the deal on Tuesday. It covers the next five years with five, one-year options beyond to resign the deal, and it has a minimum value of $10 million and a maximum value of $10 billion. Accenture would provide a wide range of services including strategic support, design and integration activities, technical solutions, deployment activities, training, and organizational change management, according to a department statement. 

The department awarded Accenture, whose parent company is based in the Bermuda, the contract over two other bidders, Lockheed Martin and Computer Sciences Corp. 

But Rep. Jim Turner, D-Texas, ranking member on the House Homeland Security panel, issued a statement following the department’s announcement questioning its lack of details. 

“Right now, we do not know how the system will work, who will be covered, what technologies will be deployed, and, how much the whole thing will cost,” said Turner. 

He also said the award gives “unprecedented authority to a private contractor to design and build a border security system for the United States that will have long term implications for our national security, our international relations, and the economies of border communities across the country.“ 

On May 11, 2006 I testified before a congressional hearing conducted by the House Committee on International Relations, Subcommittee on Oversight and Investigations on the topic, “Visa Overstays: Can We Bar The Terrorist Door?

I certainly agree with Governor Christie and strongly believe that this program must be fully implemented.  However, simply tracking aliens who violate the terms of their admission will achieve little if anything.  Now that he has raised this important component, of what should be a multifaceted interior enforcement program for Immigration and Customs Enforcement, he needs to specify how many thousands of agents and other personnel such as immigration judges, attorneys and deportation officers he would be willing to hire to use the tracking data to arrest these aliens and seek their removal from the United States.

Although much has been made about the cost of actually enforcing our immigration laws, hiring all of these new employees and dealing with all of the other related costs, the effective enforcement of our immigration laws will stench the flow of tens of billions of dollars each year that are wired from the United States by foreign workers (both legal and illegal), which hammers the American economy, displaces millions of American workers and suppresses the wages of American workers who still have jobs.  It is estimated that remittances amount to anywhere between $125 billion and $200 billion.

These massive numbers of foreign workers and their families also cause our healthcare system to shoulder huge expenses, as do our public school systems across the United States.  Simply stated, we often have to spend money to save money.  In the long run, effective immigration law enforcement would protect our nation, protect our citizens and actually save our economy huge sums of money.

The presence of a huge number of illegal aliens present in communities across the United States also stresses the infrastructure of many cities and create huge haystacks in which some truly deadly needles can hide.  These include transnational gang members, international fugitives and those associated with terrorist organizations.

These are aliens from the four corners of the planet and not just from Mexico or even Latin America. 

I hope that Christie follows up on his proposal and fleshes out how he will make certain that our government will have the capability to act on the information that his tracking system would provide.

Historically, huge pressure has been brought to bear to make certain that such a tracking program would never be fully implemented.  Before we consider how efforts to implement such a tracking system have been unsuccessful, we should also consider the challenges that Customs and Border Protect (CBP) inspectors face when they inspect aliens seeking entry into the United States.  We must also consider the challenges that face Immigration and Customs Enforcement (ICE) agents.

On May 31, 2010 I was interviewed by Casey Wain of CNN for a news report titled “Tacking Down Visa Violators.”  At the time of the broadcast, DHS claimed that all of 300 ICE special agents were assigned to tracking down aliens who had overstayed their visas.  It is important to note that there are other ways that aliens may also violate the terms of their admission into the United States.  For example, aliens who are admitted as tourists must not be gainfully employed.  When aliens accept such illegal employment, they become deportable (removable). When I was a new agent I joined my colleagues in conducting field investigations at factories and other employment sites and arrested such visa violators even if their authorized period of admission had not yet expired.

Aliens who are admitted to attend schools and then fail to attend those schools are similarly removable for violating their immigration status, as are aliens who are admitted to work in the United States and fail to go to their authorized jobs.

The point is that aliens may violate their terms of admission even before they overstay their authorized period of admission.

CBP inspectors have a minute or two to do the most cursory of interviews of people seeking entry into the United States.  This is a mission I am intimately familiar with, having begun my career with the former Immigration and Naturalization Service (INS) as an immigration inspector assigned to John F. Kennedy International Airport in New York City. I spent four years in that assignment before becoming a special agent.

The first issue is to make certain that the applicants for admission are who they claim they are. The next task is to separate aliens from citizens.  Citizens may never, under any circumstances, be denied entry into the United States. Aliens, on the other hand, must provide evidence that they are not on any watch lists that screen for terrorists, criminals and others whose presence, under our immigration laws, would be harmful to the United States or its citizens.  Aliens must prove they have the financial wherewithal to not be likely to work in the United States in violation of the law.  Aliens who seek to deceive the CBP officials may have “show money.”  Show money is the term we used to describe a wad of bills that do not belong to the alien presenting them, but will be given back to the person or organization that lent it to them to provide (false) evidence of financial self-sufficiency to pay for expenses in the United States. 

Aliens are supposed to provide an address in the United States, but when aliens seek to tour across the country, often those addresses are less than worthless.

When I was an immigration inspector our supervisors often suggested that we limit the period of time for which we admitted nonimmigrant visitors to a few weeks in the United States, rather than admit them for the maximum of six months for which tourists could be admitted.

My colleagues and I were frustrated beyond words because, as we would often tell our bosses, these aliens only wanted five minutes on the other side of the doors to the inspections facility so that they had a running head start.  For decades immigration has engaged in a game of “hide and seek” with illegal aliens and aspiring illegal aliens.  They would hide but we lacked the resources to seek.

In 2013 US-VISIT was supplanted by the Office of Biometric Identity Management (OBIM) which is described on the the DHS website this way:

The Office of Biometric Identity Management (OBIM) supports the Department of Homeland Security’s responsibility to protect the nation by providing biometric identification services that help federal, state, and local government decision makers accurately identify the people they encounter and determine whether those people pose a risk to the United States. OBIM supplies the technology for collecting and storing biometric data, provides analysis, updates its watchlist, and ensures the integrity of the data.

OBIM was created in March, 2013, replacing the United States Visitor and Immigration Status Indicator Technology (US-VISIT) Program. OBIM is part of the National Protection and Programs Directorate.

The DHS website makes it clear that this program is vital for our nation and our citizens, yet it is still not fully implemented.

There are a number of theories why our government is unable to fully implement this program.  I have a particularly cynical theory.  My theory involves the wrong-headed and dangerous Visa Waiver Program.

The U.S. State Department provides a thorough explanation of  the Visa Waiver Program on its website.  Incredibly, the official State Department website provides a link, “Discover America,” which advertises various corporations that are a part of the travel, tourism and hospitality industries that, with the leadership of the U.S. Chamber of Commerce and under the aegis of the Discover America Partnership, have applied incredible pressure to continue to expand the Visa Waiver Program.  This, in spite of the fact that it engenders serious national security vulnerabilities by enabling aliens from 38 countries to seek to enter the United States without first applying for a visa.  

The 911 Commission was clear about the need to tighten up on the procedures by which visas are granted. However, under the Visa Waiver Program citizens of those countries require no visas.  On September 11, 2001 citizens of 26 countries did not need visas for temporary visits to the United States. Today a dozen countries have been added to that list since the terror attacks of September 11, 2001, while additional countries may soon be added. 

The Summer Edition of the The Social Contract included my extensive analysis of failures of the immigration system to adhere to the findings and recommendations of the 911 Commission.  The title of my paper was, “The 911 Commission Report and Immigration: An Assessment, Fourteen Years after the Attacks.”  The Visa Waiver Program was one of many deficiencies of the immigration system that I focused on.

Considering the nature of the threats America and Americans confront today, it may be difficult to understand why US-VISIT or its successor program have yet to be fully implemented.  The nexus between such a tracking system and the Visa Waiver Program provides the incentive to make certain that such a tracking system never be fully implemented.

Under our immigration laws, a number of prerequisites must be met by countries that participate in the Visa Waiver Program.  Some of these have to do with the standards by which passports are issued and stolen passports are reported.  There are two other requirements that must be considered.  First of all, the citizens of countries that participate in the Visa Waiver Program must not have a high visa refusal rate.  Second, citizens of countries that participate in the Visa Waiver Program must not have a high overstay rate.

Visa refusal rates can be addressed by edicts issued by State Department officials demanding that consular officials not deny too many visa applications.  This is, in and of itself, outrageous and leads to the huge number of illegal aliens present in the United States who ultimately violate the terms of their admission.  This also may create opportunities for criminals and terrorists to enter the United States.

Now we come to the overstay rate for the citizens of Visa Waiver Program countries and my cynicism.  There is no way for the overstay rate to be tampered with so the only option is to make certain that we never have a true accounting of those overstay rates.  The way to make certain that this happens is to make certain that the tracking system is never fully implemented.

Below I have provided the section of law that addresses these components of the requirements for countries that participate in the Visa Waiver Program.  

8 U.S. Code § 1187 - Visa waiver program for certain visitors (Establishes the statutory requirements for countries to participate in the Visa Waiver Program.  Consider this excerpt from this section of law:

(B) Waiver After certification by the Secretary under subparagraph (A), the Secretary, in consultation with the Secretary of State, may waive the application of paragraph (2)(A) for a country if— 

(i) the country meets all security requirements of this section;

(ii) the Secretary of Homeland Security determines that the totality of the country’s security risk mitigation measures provide assurance that the country’s participation in the program would not compromise the law enforcement, security interests, or enforcement of the immigration laws of the United States;

(iii) there has been a sustained reduction in the rate of refusals for nonimmigrant visas for nationals of the country and conditions exist to continue such reduction;

(iv) the country cooperated with the Government of the United States on counterterrorism initiatives, information sharing, and preventing terrorist travel before the date of its designation as a program country, and the Secretary of Homeland Security and the Secretary of State determine that such cooperation will continue; and


(I) the rate of refusals for nonimmigrant visitor visas for nationals of the country during the previous full fiscal year was not more than ten percent; or

(II) the visa overstay rate for the country for the previous full fiscal year does not exceed the maximum visa overstay rate, once such rate is established under subparagraph ©.

© Maximum visa overstay rate

(i) Requirement to establish

After certification by the Secretary under subparagraph (A), the Secretary and the Secretary of State jointly shall use information from the air exit system referred to in such subparagraph to establish a maximum visa overstay rate for countries participating in the program pursuant to a waiver under subparagraph (B). The Secretary of Homeland Security shall certify to Congress that such rate would not compromise the law enforcement, security interests, or enforcement of the immigration laws of the United States.

(ii) Visa overstay rate defined In this paragraph the term “visa overstay rate” means, with respect to a country, the ratio of—

(I) the total number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa whose periods of authorized stays ended during a fiscal year but who remained unlawfully in the United States beyond such periods; to

(II) the total number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa during that fiscal year.

(iii) Report and publication 

The Secretary of Homeland Security shall on the same date submit to Congress and publish in the Federal Register information relating to the maximum visa overstay rate established under clause (i). Not later than 60 days after such date, the Secretary shall issue a final maximum visa overstay rate above which a country may not participate in the program.

That Governor Christie is bringing up the issue of visa violators and literally and figuratively moving the discussion away from the focus on the U.S./Mexican border is encouraging.  On February 5, 2015 FrontPage Magazine published my article, “The ‘Secure Our Border First Act’ Deception – _Why it’s no solution to the immigration crisis._”

The immigration system lacks integrity and credibility. America and Americans are paying the all too high price.

On March 20, 2013 I testified before a hearing conducted by the Senate Judiciary Committee on the topic, “Building an Immigration System Worthy of American Values.”

My prepared testimony ended with the following two paragraphs that will also serve as my final words for my article today:

Law enforcement is at its best when it creates a climate of deterrence to convince those who might be contemplating violating the law that such an effort is likely to be discovered and that if discovered, adverse consequences will result for the law violators. Current policies and statements by the administration, in my view, encourages aspiring illegal aliens around the world to head for the United States. In effect the starter’s pistol has been fired and for these folks, the finish line to this race is the border of the United States.

“Back when I was an INS special agent I recall that Doris Meissner who was, at the time, the commissioner of the INS, said that the agency needed to be ‘customer oriented.’ Unfortunately, while I agree about the need to be customer oriented what Ms. Meissner and too many politicians today seem to have forgotten is that the ‘customers’ of the INS and of our government in general, are the citizens of the United States of America.