The United States is — by far — one of the most heavily visited countries in the world. In 2018, nearly 80 million people visited the U.S., pumping over $1 trillion into its economy. Most business travelers and tourists are allowed to stay anywhere from 90 days to six months before returning home. While the vast majority do just that, a few never actually leave.
They become “overstayers,” and although it’s a tiny percentage of visa-holders — less than 2 percent —the numbers add up pretty quickly. According to the Department of Homeland Security, more than 700,000 people overstayed their visas last year. While many eventually leave, the aggregate numbers add up: It’s estimated that half of the 12 million undocumented immigrants in the U.S. are visa overstayers. They didn’t cross the border illegally; they arrived legally but then just did not go home when they were supposed to.
Overstayers don’t get nearly the attention that illegal border-crossers do, but they amount to such a big chunk of the undocumented- immigrant population that they shouldn’t be ignored in the immigration debate. President Donald Trump has a plan for them: He announced a crackdown on tourists and business travelers from countries with high overstay rates.
This administration is the first one in recent memory that has taken up the visa compliance issue intentionally and seriously, and in principle, this focus should be welcomed by consular officers serving at our embassies and consulates overseas. But one proposal the president has asked the State Department to adopt — using “admission bonds” to induce better visa compliance — is problematic. They are resource-intensive and cumbersome — plus, experience shows they don’t work.
The bonds work a little bit like bail: A traveler arriving from a specified country would have to post money, which is then held by the government or a third party. When the traveler leaves the U.S., the bond would be canceled and the collateral returned.
If the U.S. were to adopt an admission bond, it would likely apply to only some travelers.
Visitors from countries with historically low overstay rates (such as France, Germany and Japan), use an online application called the Electronic System for Travel Authorization (ESTA). For citizens of other countries (such as Mexico, India and the Philippines) and for those refused approval through ESTA, a visa is required, which includes an interview with a U.S. consular officer at one of our embassies or consulates worldwide.
Admission bonds would presumably come into play after the visa application. In theory, it sounds pretty simple: If requested, a traveler (or a sponsor) puts up money for entry into the U.S. and gets it back when they leave. If the bondholder is the U.S. government, then the feds would keep the money and be on the hook for finding the absconder through their regular enforcement mechanisms. It’s less clear how it would work with a third-party bondholder; if the bondholder is a surety company that forks over the money to Uncle Sam on behalf of the traveler, then the firm would be out that money and have the incentive to find the absconder somehow or seize other assets or collateral. Either way, the U.S. government would keep the cash.
The problem is, there’s already a track record for this idea, and it’s not especially successful, having little effect on visa compliance.
Several countries around the world with a high attraction to immigrants have put bond programs in place that haven’t solved their overstay problems. The Gulf states, with their huge reliance on foreign labor, employ the use of a controversial third-party bond for their guest workers. The United Arab Emirates would appear to be an ideal state for such a system: It has a vast immigrant workforce, strict immigration policies and a highly developed surveillance system employing the latest in biometric technologies. However, occasional government amnesties reveal that tens of thousands of workers manage to evade the system and work in the shadows — bond or no bond. While Singapore is frequently touted as a model state that has successfully integrated foreign workers (also using a bond system), differences abound: It’s a small island country (about the size of the greater D.C. area) and illegal employers are subject to significant penalties. Its draconian punishment system may also be a factor. Germany requires a “letter of commitment” from sponsors to vouch for certain foreign visitors. No hard data on its efficacy exists but, judging from the current immigration debates in Germany as well as anecdotal information, the German government seems to have the same challenges with enforcement that we do.
As it happens, current U.S. regulations already permit the use of such bonds — and skepticism about their effectiveness is actually built into the code. State Department policy already allows consular officers to require visa applicants to post a bond with DHS to ensure their departure. But the same policy notes that bonds should “rarely, if ever, be used” because “possible forfeiture of a bond is little deterrence, and sometimes might be cheaper than other means of illegal entry.” The regulations also note that the mechanics of posting a bond are tedious, DHS offices may not be equipped to accept the bonds and in some countries, they could be confused with a bribe. It’s not clear whether or how the Trump administration might change the existing regulation.
Ultimately, experience shows that for many visitors, no price is too high for a chance to come to the U.S. Determined immigrants would happily write off the money as a loss, confident in earning it back and more, for a shot at working in the States. Likewise, family members and unscrupulous employers are hardly deterred by upfront financial costs. Criminal immigration gangs could find themselves with another way to enhance their revenue streams. Immigrant smugglers could exploit any bond scheme to sponsor victims, only to have them work off their bond under indentured servitude. Visa applicants have been known to pay smugglers tens of thousands of dollars to receive a tourist visa — far more than the U.S. government is likely to demand in a bond.
Additionally, strict enforcement of such a program would have to overcome the usual hurdles: cumbersome processes, legal challenges and limited resources. For instance, in spite of the elaborate registration system for international students — introduced in the aftermath of 9/11 — overstay rates for students remain significantly higher than those for tourists and business travelers. The elaborate online apparatus appears to keep track of law-abiders but loses track of absconders.
As someone who’s worked in multiple high-volume visa posts, I know that consular officers already have a powerful tool to make decisions about visitor visa applicants: the Immigration and Nationality Act. Visa applicants are routinely refused under Section 214(b) of the law, which requires visa applicants to prove that they do not intend to be immigrants. If a consular officer thinks an applicant is unlikely to return home, they must refuse the visa application. In contrast, an admission bond may have a counterproductive result. It may instead give some officers a reason to give some applicants the benefit of the doubt, tempting them to outsource or hedge decisions based on the false hope that a financial consequence might improve compliance.
At our busiest visa sections, officers make hundreds of visa decisions every week. Interagency information sharing helps officers to quickly home in on known security issues. But beyond that, it becomes a judgment call. As every consular officer knows, each visa decision is a national security decision, and it’s not one we take lightly. Few things cause more aggravation and dismay to a consular officer than the visa applicant that gets away. And sometimes the overstayers aren’t who you think, not the most poor or desperate but sometimes the middle class or well-to-do with aspirations for more.
A better way to address the question of visa overstays might be to drill down and see why visa issuances in certain countries result in higher overstay rates than others. Are there pressures stemming from certain bilateral relationships? Do presidential orders, such as President Barack Obama’s now rescinded order to reduce visa wait times, send a subtle message to officers to approve more visas? Would higher denial rates cause an outcry from some foreign countries and/or members of Congress?
Finally, it’s worth keeping in mind that the current system is working the vast majority of the time —a 2 percent overstay rate means that consular officers and immigration agents are making the correct calls 98 percent of the time. An admission bond system would only further complicate the process for the law-abiding 98 percent while having little impact on the 2 percent who break the rules. The best way to help consular officers do even better is to provide them additional data and analysis to make better informed decisions.
Efforts to address visa overstayers are as important as what’s happening at our land borders. With immigration reform at a standstill, we need to give the administration’s proposals a fair hearing. But let’s not get distracted by initiatives — like admission bonds — that will ultimately result in little real progress.
Martin L. Oppus, a foreign service officer with the State Department, is a national security affairs fellow at the Hoover Institution, Stanford University. He has served as a consular officer in the Philippines, Mexico, Vietnam and India. His views are his own and do not represent those of the State Department.
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