The New York Times recent article, "U.S. Can't Trace Foreign Visitors on Expired Visas" highlights the case of a former Silicon Valley teen, now facing criminal charges for attempting to use weapons of mass destruction in Dallas. Mr. Hosam Maher Husein Smadi, a 19 year old Jordanian citizen, came to the U.S. in 2007 on a six month tourist visa. He briefly stayed in San Jose and Santa Clara, California, before moving to Texas. Last month Mr. Smadi was arrested after placing what he believed to be a car bomb in the garage of Dallas high-rise. The FBI had been monitoring Mr. Smadi, and provided him with the inert car bomb.
The New York Times article uses this case to highlight the problem with immigration enforcement when legitimate visitors stay longer than authorized. Mr. Smadi entered the U.S. legally, but most likely overstayed his visitor's visa by at least 18 months. Most foreign nationals wishing to visit the U.S. as a tourist or on brief business must obtain a visitor's visa at the U.S. Consulate in their home country. At the border, the Customs and Border Protection officer will often permit a tourist to stay in the U.S. for up to six months. Tourists from many countries with low rates of visa fraud and low rates of visa overstays can come to the U.S. without first obtaining a visitor's visa, but they can only be admitted up to 90 days.
The article highlights the problem of visa overstays by using a shockingly misleading statistic that last year 2.9 million temporary visitors legally entered the U.S. but never "officially checked out". This statistic allows readers to presume that all those visitors who stay longer than initially authorized are here illegally. To the contrary, many visitors come and find legal employment, decide to go to school, experience a whirlwind romance and decide to marry, or simply decide to tour the U.S. longer. It is perfectly legal and common to apply for a "change of status" to a different immigration status, such as to a temporary professional worker (H-1B), or to a student (F-1, J-1). Those who wind up married to a U.S. citizen can apply for an "adjustment of status" and begin the green card process. Those who want to stay longer than six months can apply for an "extension of status". The figure does not mean that 2.9 million people entered the U.S. and are now here illegally. Those that applied to change or extend their status would not have "checked out" yet.
The article does go on to state that about 200,000 visitors are believed to have overstayed their visitor's visa last year. Although this is an estimate, there is no question that many people comprising the total number of illegal immigrants did enter on a legitimate visa and simply overstayed. While Immigration and Customs Enforcement (ICE) is tasked with apprehending and removing (deporting) illegal immigrants the case of Mr. Smadi highlights the challenges of immigration enforcement.
Two weeks before Smadi's arrest, he was pulled over for a broken tail light and arrested for driving without a license or insurance. His name showed up on an FBI watch list, but the background check turned up no immigration record. The deputy called the F.B.I. and was told there was no outstanding arrest warrant for Mr. Smadi. So Mr. Smadi paid a $550 fine and walked out of the county jail.
While I am certainly critical of sensational statistics that make it look like lawful entry on a visa is the easy access point for illegal immigration, I do want people like Mr. Smadi apprehended. So why was there no immigration record for Mr. Smadi when the deputy performed a background check? Even if there is no system for tagging a record when a visitor overstays, shouldn't there have been a record of his entry as a visitor? And how could the FBI, who was watching him, not know his immigration status? Better record keeping and inter-agency connectivity are critical for immigration enforcement to succeed.