In-Depth: Sen. John Kennedy (R-LA) introduced this bill as part of a legislative package meant to address loopholes in the U.S. immigration system. When he introduced the three-bill package, Sen. Kennedy said:
“We need effective immigration laws that look like they were designed on purpose. This package of bills contains simple solutions to ongoing issues with our immigration system in the United States. Our immigration system is at a breaking point, and it’s about time we take action.”
The two other bills in the package are:
When he ran for the 2016 Republican presidential nomination, Sen. Ted Cruz (R-TX) supported criminalizing visa overstays as part of his “Cruz Immigration Plan”:
“Criminalize visa overstays. It has been estimated that approximately 40 percent of the illegal immigrants currently in the United States originally came here legally, but are overstaying their visas. Although it is a federal misdemeanor to illegally enter the country, it is not currently a federal crime to overstay a visa. I will work quickly with Congress to change that. We will make it a misdemeanor for a first offense, and a felony for any subsequent offense, for any individual to be unlawfully present in the United States after the expiration of a visa. This will help us remove people who abuse our goodwill, deter others from doing so, and eliminate a major national security vulnerability."
NumbersUSA, an organization that advocates for reduced immigration levels into the U.S., expressed support for similar legislation in the 115th Congress, the Visa Overstay Enforcement Act of 2017.
In a 2018 article in the National Review, Michelle Malkin argued that failing to take action on visa overstays dishonors the memory of those who died on 9/11 (some of the hijackers were visa overstayers):
“For 17 years, America has engaged in a collective ritual every September 11: Hang flags, light candles, bow heads, and make vows to ‘Never forget.’ Then, every September 12, it’s back to business as usual: See something, do nothing. Did you remember that five of the 9/11 hijackers — Mohamed Atta, Marwan al-Shehhi, Hani Hanjour, Nawaf al-Hazmi, and Satam al-Suqami — carried out their killer plot after overstaying their visas, evading detection, and avoiding deportation?... Did you remember that a year after the jihadist attacks that stole nearly 3,000 innocent lives, the 9/11 Commission urged our government to build a biometric entry-exit program to track and remove visa overstayers — who make up an estimated 40 percent of the total illegal-immigrant population?... All remembrance and no action dishonors the 3,000 who died 17 years ago — and endangers us all.”
In a 2005 press release, House Speaker Nancy Pelosi (D-CA) opposed criminalizing visa overstays:
“[Making visa overstays] a federal crime, instead of a civil offense… would turn millions of immigrants currently here into criminals, hindering their ability to acquire any legal status - and would effectively frustrate the proposals that would provide real immigration reform… [Such proposals call] upon the worst political and most craven impulses. [They are] a failure of leadership — a failure of moral leadership."
Liam Brennan, a former federal prosecutor and head of the Public Corruption Task Force in Connecticut, argued against criminalizing immigration violations in a May 2018 article in The Washington Post:
“For more than 100 years, the United States imposed no restrictions on entry into the country… Then, in 1882, the federal government imposed its first immigration restrictions, passing the Chinese Exclusion Act and the Immigration Act, which prohibited the entry of criminals, the mentally ill, and those likely to become public charges. The government continued to enact further restrictions — often aimed at reducing Asian immigration — through the early 20th century... Despite this, being present illegally (through, for example, overstaying a visa) remained (and remains) a civil immigration matter. Indeed, until 1996, immigrants unlawfully in the United States — even those who entered illegally — could legalize their status after seven years, in part, by paying a civil fine. Although immigration ‘crimes’ have been on the books since 1929, the government typically declined to enforce them in the ensuing decades. Criminal law enforcement was historically reserved for offenses against people or property — in other words, physical harm and theft. While the modern era has seen a rise in crimes that pose systemic threats — such as antitrust, public corruption or insider-trading offenses — even in these cases, the government has used criminal law to sanction defendants who commit acts with wicked or evil intent. Immigrants seeking a better life in the United States have never fallen into that category. Government prosecutions reflected that understanding until the start of the 21st century. In 1986, the federal government apprehended over 1.7 million migrants but only criminally prosecuted 6,635 illegal-entry cases and 391 illegal-reentry cases. In 1993, it apprehended over 1.3 million migrants but prosecuted only 801 illegal-entry cases and 2,361 illegal-reentry cases. However, anti-immigrant fervor flared again in the late 1990s, resulting in the punitive immigration reforms of 1996. After the Sept. 11, 2001, attacks, the government significantly increased the criminal prosecution of migrants. By 2013, the government apprehended about 660,000 migrants, but prosecuted more than 91,000 for illegal entry or reentry… The idea that undocumented immigrants are more likely to commit crimes has been repeatedly debunked… Immigrants coming to the United States are attempting to take part in the American way of life, not destroy it. These aren’t hardened criminals, but tempest-tossed souls seeking better lives for themselves and their families. Prosecuting these cases presents a systemic danger to the American legal system because it so thoroughly divorces moral wrongdoing from criminal prosecutions.”
This legislation doesn’t have any cosponsors.
Of Note: An “overstay” is a non-citizen who was lawfully admitted to the U.S. for an authorized period, but then remained in the U.S. beyond their authorized period of admission. Sen. Kennedy’s office reports that nearly 50% of unauthorized immigration stems from visa overstays. A January 2019 report by the Center for Migration Studies of New York (CMS) corroborates this claim, as it found that from 2016-2017, visa overstayers accounted for 62% of next unauthorized immigrants, while 38% of unauthorized immigrants had illegally crossed a border. This finding matched the CMS’ previous six years of data, all of which also showed that visa overstays substantially exceeded unauthorized immigration as a source of unauthorized immigrants.
In a statement about the report, the CMS’ executive director, Donald Kerwin, said:
“It is clear from our research that persons who overstay their visas add to the US undocumented population at a higher rate than border crossers. This is not a blip, but a trend which has become the norm. As these numbers indicate, construction of hundreds of more miles of border wall would not address the challenge of irregular migration into our country, far from it.”
The CMS study’s author, CMS senior fellow Robert Warren, who was the director of statistics at the Immigration and Naturalization Service (INS) from 1986-1995, also noted that the findings showed that the U.S. has “made tremendous progress since the year 2000 in reducing undocumented immigration into this country.” He argued that “[i]n another era, we would be celebrating our success” at reducing illegal immigration.
Kerwin argued that comprehensive immigration reform is the best way to address unauthorized migration:
“Not only is a wall expensive, it fails to address the issue at hand. Our elected leaders in Washington need to reopen the government and begin reforming our broken system in a humane, effective, and balanced manner, including through legalization of DACA recipients and long-term beneficiaries of Temporary Protected Status.”
In its Fiscal Year 2018 Entry/Exit Overstay Report, the Dept. of Homeland Security (DHS) reported a total overstay rate of 1.22% (666,582 overstay events) out of 54,706,966 in-scope nonimmigrant admissions to the U.S. through air or sea points of entry. In other words, 98.78% of people left the U.S. on time in accordance with the terms of their admission. Due to continuing departures and adjustments of status, the overstay rate had decreased to 0.76% by March 1, 2019 — so over 99.24% of those scheduled to depart in FY2018 via air and sea had done so on time. The FY2018 overstay rates that DHS reported were a decline over 2017 overstay rates, marking a second straight year of decline in the overall overstay rate.
DHS reports overstay rates for Canada and Mexico separately from its overall overstay rates, since the majority of travelers from those countries enter the U.S. by land. For Canadian travelers, the FY2018 Suspected In-Country Overstay rate for those traveling through air and sea was 0.88% of 9,669,759 expected departures. For Mexican travelers, the FY2018 Suspected In-Country Overstay rate for those traveling through air and sea was 1.4% of 3,140,762 expected departures. This data doesn’t include data on land border crossings.
There have been cases of unauthorized immigrants harming, or threatening to harm, Americans after overstaying their visas. Most notoriously, two of the 9/11 hijackers, Satam al-Suqami and Nawaq Alhazmi, had overstayed their visas. Additionally, 1997 New York subway bomber Lafi Khalil, the 1993 World Trade Center bombers (Mahmud Abouhalima, Mohammed Salameh, and Eyad Ismoil), 1993 New York landmark bombing plot conspirator Fadil Abdelgani, convicted Times Square bomb plotter Faisal Shahzad, and U.S. Capitol bomb plotter Amine El Khalifi (whose visa expired in 1999 and who wasn’t noticed by DHS for 12 years until his arrest in 2012, just blocks from the Capitol, donning what he thought was a suicide bomb vest) were all also visa overstayers.
Visa overstayers who threaten the public safety are also not exclusively Muslim: in July 2018, police in La Marque, Texas apprehended 22-year-old Xiangyu Zhang with two loaded rifles, including an AM-15 semi-automatic, after he threatened to shoot schoolchildren in an online chatroom for troubled military veterans. Zhang — who plead guilty to possessing a firearm while in the country without papers in December 2018 — had lived undocumented in the U.S. for two years after overstaying a temporary visa.
Summary by Lorelei Yang(Photo Credit: iStockphoto.com / belterz)