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Foreign visitors who violate the terms of their visas by remaining in the United States indefinitely : hearing before the Subcommittee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, February 24, 1995 online

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of American citizens. One such example which I think everyone in this room can
identify with is the person accused of the World Trade Center Bombing, Mohammed
Salameh.

According to the New York Times, when "Mohammed Salameh, one of the two
main suspects in the bombing of the World Trade Center, entered the United States
as a temporary foreign visitor in 1987, he quickly slipped through a Federal immi-
gration bureaucracy that had no plan or hope of ever tracking him amid the nation's
vast tide of illegal aliens.

"He joined about 500,000 other visitors who drift from si^t annually as their
visas lapse. They usually are never traced or thou^t of again until such a moment
as now when startled, angry Americans begin questioning whether the United
States immigration system presents a model of sanctuar>' or of porousness for the
global throngs seeking entry."

This case exemplifies some of the worst problems of this nation's procedures for
dealing with the more than 20 million people who come to the United States as tem-
porary visitors each year, and I for one am ashamed to go home to the folks in Ten-
nessee and explain to them that their safety is in jeopardy because their govern-
ment cannot keep track of the people whom it lets in everyday.

Mr. Chairman, as you know, I am new to this Congress and to this Committee
and so I can only express my concerns at our inability to protect our borders. I do
not pretend to have any quick answers that would solve this problem and I look
forward to the testimony of these experts in the hopes that we will be abie to de-
velop some workable solutions, and I thank the chair.

Mr. Bryant of Tennessee. Professor Jordan, following up with
Mr. Gallegly's questions regarding other sponsorship, do you
have— any of you for that matter — have a recommendation as to
how we could make that sponsorship more binding legally, that re-
quires a sponsor to be responsible?

Ms. Jordan. I am going to ask Commissioner Hill if he would
comment on that response.

Mr. Hill. Congressman, we have not discussed any specific lan-
guage on the affidavit that would be used, but we would — the ex-
pectation is that the document, as Professor Jordan indicated,
would be a contractual obligation of the sponsor which could be en-
forced through mechanisms such as now being used to enforce child
support payments. Whereas the sponsor would actually be required
to pay — if necessary, through enforcement or liens on property or
payroll obligations — for the support of the individual for whom they
sponsored — whom they sponsored and petitioned.

Right now, the documents are used principally by consular offi-
cers and examiners in determining whether an individual is likely
to become a public charge, but once they have made that deter-
mination, they are no longer — unless there is a bond — adequate to
ensure against that eventuality.

Mr. Bryant of Tennessee. I know there is a category for students
that come in, and I know that there is abuse there, that people
come in under the auspices of going to school and they really don't
stay in school. Is this a category that requires a sponsor?

Mr. Hill. Interestingly, when a foreign student comes, the docu-
ment given them by the school, if th^y come as a student, they get
an 1-20; they have to demonstrate to the school that they have suf-
ficient resources in advance to cover things like tuition and living
expenses for the school year. So I don't believe it is as big a prob-
lem there, because the resources must be available and verified by
the school before that document is issued.



15

Mr. Bryant of Tennessee. I guess this issue of sponsorship and
legal responsibility would be limited generally to the issue of an il-
legal immigrant becoming a public charge.

Mr. Hill. Actually, a legal immigrant coming through family im-
migration or — ^yes.

Mr. Bryant of Tennessee. Could you estimate what percent of
the legal immigrants that overstay would fall into that category of
public charge? Is it 10 percent? Half?

Ms. Martin. There are no specific statistics on nonimmigrants,
tourists or business travelers who overstay their visit visas, or for-
eign students, and then obtain some form of public support within
the United States.

The issue that has been more of a problem has been people ad-
mitted as permanent residents who can stay as long as they — ^in-
definitely within this country and who, at some point prior to be-
coming citizens, require the use of public programs. And it appears
that the numbers who are — of this category who are using federally
funded programs within the first 3 or 5 years after their entry,
when the affidavits are supposed to be taken into account, is rel-
atively low.

Some larger number, though, find that they are eligible for State
or local programs because the States and localities are not able to
take the sponsor's income into account the way it is currently ar-
ranged, even though the Federal programs are able to. And that
number may be a bit higher in the period immediately after the
sponsors' incomes are deemed by Federal programs — and particu-
larly in the SSI program, the proportion using these programs —
does increase; particularly the proportion of older immigrants who
come in as parents of U.S. citizens, and there it is a fairly signifi-
cant part of the SSI caseload.

Mr. Bryant of Tennessee. So that is a step in the process where
you work from the other side. If someone goes in to apply for public
assistance, they know at that point, the organization does, to look
at the sponsor; and they are approaching it from that end too, the
back end?

Ms. Martin. Right, and a nonimmigrant is not eligible for most
of these programs; they are limited to permanent residents and
citizens.

Mr. Smith. I have a couple more questions and I believe Mr, Bry-
ant of Texas has another question as well, and we will try to be
brief.

In regard to the visa overstayers — and this is something that you
addressed in your 1994 report — one deterrent, of course, to the visa
overstayers is employer sanctions. But if that is our only line of de-
fense, so to speak, aren't we saying to visa overstayers that if you
overstay you are here to stay

Ms. Jordan. No.

Mr. Smith [continuing]. In the sense that, for example, if they
are not deterred because of not being able to get a job, are we real-
ly apprehending enough individuals to provide a deterrent to their
staying in this country? Or are we just saying, you get in here on
a visa and overstay it and nothing is going to happen; and the
word can get around and that is a real incentive to see that contin-
ued?



16

Ms. Jordan. Mr. Chairman, deportation must be a part of our
immigration policy. And if you have that visa and you have done
what you came here to do, if you don't voluntarily go back home,
we deport you and send you back. That is a part of our rec-
ommendations, and it certainly would enhance even the credibility
of saying this is a visa for this period of time. You would not be-
cause you would be sent back if you stayed too long.

Mr. Smith. I agree with you entirely. I think deportation has to
be a part of the solution, and one of tne questions I intend to ask
the INS is, how many people are actually being deported, which I
think is part of the problem there.

My last question, Professor Jordan, had to do with your testi-
mony where you say, "We recommend immediate reimbursement of
criminal justice costs, because these conditions can now be met, but
we urge further study of the costs of health care and education be-
fore impact aid is provided." I happen to agree with you, but how
do you distinguish, say, reimbursement by the Federal Grovemment
of the States for the cost of incarcerating criminals, but not reim-
bursement for education or welfare or wnatever else it might be?

Ms. Jordan. It has to do with the availability and credibility of
the numbers under each of those categories. We know what the
costs are related to the criminal alien. We do not have good data
on the other costs, of health and education, of that.

And I would like for Dr. Martin to add to what I have said in
filling out that response.

Ms. Martin. In addition to the concerns that the Commission
has about the very poor data on education and health care, because
of the very difficulty of identifying who is an illegal alien in those
categories, you can see a prisoner and ask them the right questions
and INS can check if they are an illegal alien or not and you have
an answer. With schoolchildren and emergency medical, it is quite
a lot harder.

The other thing that we are very concerned about is that we not
provide impact aid unless it is done in a means that actually helps
in the enforcement of our immigration laws, that we should not
have impact aid become an alternative to that type of enforcement,
that the first priority has to be spending the resources and the at-
tention on curtailing illegal immigration. And we are concerned
that most of the mechanisms that would enhance enforcement in
the schools or the hospitals would be counterproductive to accom-
plishing that goal.

Mr. Gallegly. Will the gentleman yield?

Mr. Smith. I will be happy to yield to my colleague from Califor-
nia.

Mr. Gallegly. Ms. Martin, I am a little perplexed. You are say-
ing that it is easier to ascertain immigration status on a prisoner
than a child enrolling in school or someone applving for medical
care. But, you know, our children have to provide either a birth
certificate, I think, in most places when they enroll in school, in-
oculation verifications and so on and so forth. How much more dif-
ficult is it to ascertain the status of their

Ms. Martin. We have obtained quite a lot of testimony from offi-
cials within school systems who are concerned that under the
terms of the Supreme Court decision that requires that illegal alien



17

children receive primary and secondary education that they are un-
able to ask specific questions about legal status.

Mr. Gallegly. That has nothing to do with ascertaining — if you
have a birth certificate, why do I need provide a birth certificate
for my child to enroll and then

Ms. Martin. We are concerned about the proliferation of fraudu-
lent documents, including birth certificates, as a mechanism. And
if there is not a really good verification process within the school
systems and the hospitals, we will have the same problems emerg-
ing there that have already emerged at worksites in terms of even
more proliferation of those documents. We are not satisfied that we
have the information

Mr. Gallegly. You don't think that will happen with the crimi-
nal alien aspect?

Ms. Martin. Because of the fact that the criminal alien is incar-
cerated and in a more confined circumstance, the ability to get the
information on that individual has proven, at least up to this point,
to be much more feasible; and we are concerned that there not be
a use of Federal resources prior to a point where we feel that the
data that are being used to justify that use are as accurate and as
good as the data can be.

Mr. Gallegly. Mr. Chairman, thank you. I know that this goes
on and on and on, but I would like to follow up.

Mr. Hill. May I add one point that I think is very important in
our report?

We have conditioned our recommendation in the report on the co-
operation of State and local authorities in enforcing the immigra-
tion laws. One of the things that we were very concerned about are
various State and local laws, regulations, policies, et cetera, that
actually prohibit such cooperation, and we believe that in order to
benefit from any impact aid whatsoever, that must be a condition.

Mr. Smith. Thank you, Mr. Hill.

I will yield to my colleague from Texas for his questions,

Mr. Bryant of Texas. Thank you.

A favorite sport for many years has been beating up on the Im-
migration and Naturalization Service, as you know, and some of
that is due to the fact that we, as a nation, have a hard time mak-
ing up our mind what we want out of them.

On the other hand, some of it is — I think, has been deserved; and
I wonder if — in the course of your work, have you identified any-
thing that is innate to the structure of this agency that needs to
be changed or that lends itself to the problems that we continually
go after it about?

Ms. Jordan. Congressman Bryant, I believe that our present
Commissioner of INS has the right mindset to make that agency
the kind of functioning, effective and efficient agency that it could
be. She has a very difficult task ahead of her. But I believe she has
attacked it quite directly and understands what needs to be done
to enhance the credibility and efficacy of that agency. And what we
really need to do, in my opinion, is to be supportive of the initia-
tives which have been put underway and are now led by Commis-
sioner Meissner.



18

Mr. Bryant of Texas. There are no departmental rivalries within
the agency that have you identified that are going to always be
there, that create problems or any such thing as that?

Ms. Jordan. Congressman, I am not competent to respond to
that question because I am not there. But it is nw feeling that
there is always a little internecine warfare over turf; but I believe
that that is quite submerged under the necessity to really enhance
the effectiveness of the agency.

Mr. Hill. If I may, Congressman, we did indicate in our report
some areas of potential concern, if you will, with respect to coopera-
tive efforts on the border between the Customs Service and the Im-
migration Service in enforcement of employer sanctions between
the Labor Department and the Immigration Service. We just raised
preliminary concerns and indicated that it is something that we
would like to consider further in our deliberations.

One of the tasks we are mandated with under the Immigration
Act of 1990 is to examine implementation of the provisions of that
act, which I believe would cover the topics that you are now dis-
cussing, and that will be a segment of our final report.

Mr. Bryant of Te>.iiS. That work >yill be welcome because this
has just been ongoing. I have been involved in this area a long
time, and it never ceases, no matter who the President is and no
matter who is in charge of the Congress; and I began to wonder
if there was something about the agency that we ought to examine
in terms of its fundamental structure.

Thank you.

Mr. Smith. Professor Jordan, thank you for being with us today.
And, Dr. Martin and Mr. Hill, thank you for accompanying Profes-
sor Jordan. We look forward to your reports.

Ms. Jordan. Thank you, Mr. Chairman.

Mr. Smith. I would like to welcome our second panel and if you
all would please come forward to the table. Let me welcome yc . all.
We have Diane Dillard, Deputy Assistant Secretary for Visa Serv-
ices, Bureau of Consular Affairs for the Department of State;
James Puleo, Executive Associate Commissioner for Programs, Im-
migration and Naturalization Service, accompanied by Robert War-
ren, Director of the Statistics Branch.

If I could ask you to summarize your testimony in 5 minutes to
get to the questions as quickly as possible.

STATEMENT OF DIANE DILLARD, DEPUTY ASSISTANT SEC-
RETARY FOR VISA SERVICES, BUREAU OF CONSULAR AF-
FAIRS, DEPARTMENT OF STATE

Ms. Dillard. I would nKe to emphasize a few points from my
written testimony.

Consular officers are conscientious and committed to carrying out
the provisions of the Immigration and Nationality Act. One provi-
sion of the law, section 214(b), is paramount in our determination
as to whether or not we issue a nonimmigrant visa. It instructs us,
first, that an alien is presumed to be an immigrant until ^'^ or she
convinces us otherwise, and second, that our decision is to oe made
by gauging the applicant's intent at the time of application.

How do consular officers learn to make these decisions? The first
training takes place shortly after the officer enters the Foreign



19

Service in the 26-day consular course. This course employs simu-
lated interviews, video instruction, and a number of other training
tools, as well as visits to INS installations at ports of entry. Offi-
cers also participate in area studies programs to learn about the
cultural, economic, and political realities impinging upon the life of
the average citizen of the country where he or she will serve.

At-post training is an important part of the officer's preparation
to adjudicate visa requests; post-specific concerns such as overstay
rates, adjustment rates, et cetera, are covered in that training, and
the officer's decisions are reviewed by a supervisor. Advanced train-
ing on consular issues is offered as officers move to supervisory
roles after two or three tours, and the visa office is a continuing
resource for advice responding to pleas for guidance by fax, phone.
E-mail and cable.

The consular officer is not only concerned with keeping out the
nonbona fide applicant but also with helping the legitimate trav-
eler to obtain the right visa speedily. The balance of trade and
m.oney spent by visitors to the United States is our one area of sur-
plus, $20-plus million in 1993.

We are concerned about overstays, of course. Whether that figure
is less than 1 percent of the 22 million visitors each year, or 2.5
percent of that figure, it is still very low. Any system right 97.5 to
99 percent of the time is a very good system. Nonetheless, we con-
tinue to work at finding the right balance of keeping out the in-
tending immigrant while assisting the valid visitor.

As Mr. Puleo noted in his written testimony, circumstances do
change; some aliens who arrived planning to depart on time change
their minds. Family friends and economic opportunity are powerful
influences not easy to resist.

Thank you, Mr. Chairman.

Mr. Smith. That was quick. Thank you.

[The prepared statement of Ms. Dillard follows:]

Prepared Statement of Diane Dillard, Deputy Secretary for Visa Services,
Bureau of Consular Affairs, Department of State

Chairman Smith, Members: Thank you for inviting me to testify before your com-
mittee.

In most parts of the world, nonimmigrant visa issuance constitutes the first line
of defense in establishing border security. The gravest problems we have with bor-
der security occur when geographic or other conditions make it easy to circumvent
the visa process. Where visas work, the borders are safer. Today, I would like to
talk with you about that first line of defense, the nonimmigrant visa process.

The Immigration and Nationality Act assumes all aliens coming to this countiy
are immigrants unless they establish, with adequate evidence, that they are not. It
is only when they can establish their qualification for one of the 57 classes of non-
immigrant visa that such a visa is issued.

Of those, over 80% of the visas issued are in the B category, temporary visitor
for business or pleasure. Student, exchange and the various categories of temporary
worker visas constitute most of the rest.

In adjudicating a visitor or student visa, the INA requires the consular officer to
find that the applicant has a residence abroad he or she has no intention of aban-
doning. To do tnis, consular officers most often examine evidence of occupation, fam-
ily, property or social position to see if the applicant has the ties that would likely
impel a return home at the end of a lawful, temporary stay in the United States.

m making this adjudication, the consular officer has a fine line to walk. On one
hand, the consular officer must be aware that he/she is serving on the front line
of protecting our country against not only iUegal immigration but also against those
whose coming would l>e inimical to the country's interests, as described in the
grounds of ineligibility found in section 212(a) of the INA. On the other hand, the



20

United States has an interest, indeed, has committed itself to furthering inter-
national travel. We are all acutely aware that travel and tourism is one of the coun-
try's principal earners of foreign exchange. It must also be noted that many Amer-
ican companies and individusQs have legitimate interests in bringing friends, rel-
atives, employees and business associates into this country for temporary visits. And
nothing has proved as successful in spreading American values of democracy and
a free market as have our student and exchange programs.

Moreover, the consular officer evaluates an applicant according to present inten-
tion. We are not able, indeed we consciously avoid speculating about what changes
of plans might result from dianges of circumstances. Nowhere is this more apparent
than in issuing student visas. How many eighteen year olds entering college know
what their intentions will be four years later? So long as they harbor no intention
of abandoning their residence abroad at the time of visa application, we are not in
the position to predict the future for them.

Walking this fine line of issuing visas to those we can and refusing them to those
we must is the art we practice. This results in a variety of results around the world
according to the economic, political and social conditions of various societies. People
from some societies are simply more inclined to abuse visa status than others, so
greater care must be taken in those circumstances. This can result in the non-
immigrant visa waiver for some nationalities and refusal rates over 80% for others.
By the way, we have undertadcen an informal project with the Italian and Por-
tuguese consuls in Washington to assure that aU aliens departing the United States
on their national airlines will have turned in an 1-94 or a form letter including all
bio data to be forwarded to INS in lieu of the 1-94. We have also reinforced to all
our posts the importance of collecting 1-948 they find still in the possession of re-
turned travelers, and forwarding them to INS.

Our embassy in Rome has launched a strong effort to educate the traveling Ital-
ian public, urging them to seek visas when planning a stay longer than 90 days and
reminding them to turn in their I-94s to the airline. Our consul general has also
met with Alitalia officials to stress the importance of collecting the I-94s and send-
ing them to INS. At this meeting, one of the officials took the opportunity to hand
over his mother's 1-94 which Alitalia had neglected to collect when she left the U.S.
Although the overwhelming number of nonimmigrant visa decisions are made on
the grounds of intention to observe status, certainly the most significant refusals are
made on the basis of excluding those whose entry is contrary to the country's inter-
est. Congress has enumerated grounds of visa refusal based on health, criminal,
moral, and public charge reasons. Whenever it is known that an alien is ineligible
on one of these grounds, the alien's name is placed in the visa lookout system indi-
cating either that the applicant is ineligible for a visa or that further inquir>' into
eligibility is indicated. This lookout system entry is available to all consular sections
and ^1 n»JS officers at our ports of entry.

With the money Congress made available to us in the authorization act of 1994,
we are in the process of installing the machine readable visa in every visa issuing
post. Already, over 70% of the nonimmigrant visas issued are issued by this method.
Over 97% of all nonintimigrant applications are now vetted through an automated
system.

The machine readable visa has two capabilities significant to border security. The
first is that it is an extremely difficult document to alter or counterfeit. The second
is that it is also machine issued, and the process requires that the visa lookout sys-
tem be consulted before issuance. During 1994 twelve thousand nonimmigrant visas
were refused under one of the provisions of section 212(a). That is not many, but
their denial is important.

As I mentioned earlier, the machine readable visa application fee of $20 which
Congress has authorized us to levy on a temporary basis has been invaluable in pro-
viding us with the resources to connect every issuing post, no matter how low its
visa volume, to an automated name check system. We hope to see this authorization
made permanent to assure a source of funding so we may continue with the en-
hancement of our visa systems and document security to counter the ever more so-
phisticated counterfeiting techniques being developed.

The Department of State recognizes the importance of the visa issuance process


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Online LibraryUnited States. Congress. House. Committee on the JForeign visitors who violate the terms of their visas by remaining in the United States indefinitely : hearing before the Subcommittee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, February 24, 1995 → online text (page 3 of 7)