Tackling the Visa Overstay Problem by Requiring Nonimmigrants to Post Bonds

By Dan Cadman on August 27, 2018

Rep. Steve King (R-Iowa) has introduced a bill, H.R. 6089, entitled the "E-bonding for Immigration Integrity Act of 2018".

The bill tackles, head-on, the issue of visa (and visa waiver) overstayers who simply don't leave when required and instead blend into the rest of the illegal alien population of give-or-take 11 million already in the United States. Estimates these days put overstayers at about 40 percent of that population overall, which is one reason why, even if the president gets the border wall constructed, mass illegal immigration will remain a troubling phenomenon.

In a series of recent tweets, my colleague Jessica Vaughan put a spotlight on exactly how troubling this problem of visa overstayers has become. Here is a sampling:

Even the most cursory review of these figures suggests that Vaughan is being both understated and kind when she says "Adjustments needed by State Dept.", whose consular officers are responsible for all immigrant and nonimmigrant visa issuances abroad.

Optimists looking for a glimmer of hope will point out (as Vaughan notes) that the total number of overstays actually declined by 5 percent from 2016 to 2017. But my own gauge is that this salutary decline is attributable to the fact that when Donald Trump took office, he curtailed the absurd Obama-era Executive Order (EO) 13597, which mandated that consular officers increase the number of visas being issued globally, including specifically to countries such as Brazil and China. Section 2(b) of that EO obliged the State Department to "increase nonimmigrant visa processing capacity in China and Brazil by 40 percent over the coming year."

Juxtapose the massive increase in nonimmigrant visas issued to those two countries from January 2012 (when the EO took effect) onward — and then see what happened as a result by glancing back at Vaughan's tweets. Brazilian and Chinese nationals are among the most flagrant visa violators. It is as if the Obama administration either lived in a bubble of unreality or, equally distasteful, simply didn't care if visa recipients from Brazil or China (or indeed anywhere else) violated the law by overstaying their visas. Consular officers were under great pressure to issue-issue-issue, which is no surprise since immigration adjudicators were under the same pressure to approve-approve-approve benefits for aliens here in the United States.

King's bill proposes to up the ante (literally, in a monetary sense) by establishing a requirement that visa applicants post bonds ranging in amount from $2,500 to $10,000 as a way of guaranteeing that they will depart when expected, or lose the money. King's bill would make it mandatory for specified categories of nonimmigrants, as well as other nonimmigrants who are yearly determined as a class to be overstaying their visas by more than 1.5 percent.

The bill also provides that when bonds are forfeited, the money will go into a newly created E-bond Enforcement Fund, which will be used by the Department of Homeland Security (DHS) to "(1) ensure compliance with this Act; and (2) administer enforcement programs."

Having examined the bill, it seems to me that perhaps it merits tinkering around the margins. For instance, the law already requires the DHS secretary to issue a yearly report with much the same information as would be required of the secretary of State. Such redundancy could be eliminated by expanding that report if needed, and making it the basis for the actions required of consular officers in this bill.

It also seems to me that the purposes of the E-bond Enforcement Fund, as articulated, are a little too loose and virtually guarantee that money from the fund will end up being used for things with only the barest nexus to identifying potential overstays, or for locating and arresting overstays within the country.

One can also anticipate that the State Department will itself seek access to the money on the theory that since it is additional work for consular officers, this would help offset the increased burden. At the risk of appearing partisan, I believe that would be a bad idea, since the costs of detecting and removing each and every overstayed alien is tremendous, and far outweighs the State Department's equities in that regard.

Despite my observations about strengthening some of the provisions, this bill merits consideration. Whether it will get the attention it deserves remains to be seen, and almost certainly will depend in part on the outcome of the midterm elections. Even in the event Republicans retain the House, there is little reason to believe that King's bill will succeed when so many other meritorious pieces of immigration legislation have already languished before it.

Here is an interesting thing though: What King is proposing legislatively could be done by regulation. I say this guardedly; having observed the excesses taken in the name of "executive action" by the Obama administration, I have become a convert in believing that legislative fixes are often the preferred course. Unfortunately, our Congress has shown itself capable of almost nothing in the immigration arena.

How is what I'm suggesting possible?

First, because "maintenance of status" bonds of the type encompassed in this bill are already permitted by existing provisions in the Immigration and Nationality Act, and may be demanded either by consular officers as a condition of visa issuance, or even Customs and Border Protection inspectors at ports of entry as a condition of admission. Unfortunately, the mechanism is rarely utilized.

That bring me to the second point, something I've noted before: The Homeland Security Act of 2003, which brought DHS into existence, fundamentally changed the law relating to authority over visa issuance by granting to the DHS secretary a final say in 1) crafting the policies to be implemented; and 2) whether or not any individual visa is granted or denied. Prior to that act, the secretary of State exercised sole and exclusive jurisdiction.

For political reasons, prior DHS secretaries have been loath to tread on the toes of secretaries of State, even though some observers have gone so far as to propose that all consular matters should be moved jurisdictionally to DHS.

I don't think such a reorganization would achieve much, but I do think that the DHS secretaries have serially been remiss in not exercising their policy-making authorities over visa issuance processes.

If the current DHS secretary were so inclined, she could issue policies mandating that both consular officers and inspectors at ports of entry insist on the posting of maintenance of status bonds — not just in the case of visa recipients, but also even in the case of nationals from visa waiver countries when the overstay rates reflect a problem such as is evident with France and the United Kngdom (refer back to Vaughan's tweets regarding these two countries).

In the end, what is clear is this: If nothing substantive is done, each and every year hundreds of thousands of visa overstayers will compound the burden already placed on federal, state, and local social service, safety, and health networks by the existing population of illegal aliens.