The Department of Homeland Security (“DHS”) released the “Fiscal Year 2017 Entry/Exit Overstay Report,” (the “Report”). The Report provides data on departures and overstays, by country, for foreigners who were expected to leave the U.S. from October 1, 2016, to September 30, 2017. The Report provides a better understanding of those who remain in the U.S. beyond their authorized period of admission. A high overstay rate can negatively affect whether applicants from such a country are approved for non-immigrant visas.
Background Information:
U.S. immigration law uses the term “non-immigrant” to refer to someone who seeks to enter the U.S. for a temporary period of time, such as for tourism, studies, temporary work, and more. In contrast, an “immigrant” is a person who seeks to become a U.S. Permanent Resident, in other words, obtain a U.S. Green Card. The Report applies to non-immigrants only.
The Report is especially important to non-immigrant visa applicants because of section 214(b) of the Immigration and Nationality Act (“INA”) which requires non-immigrants to overcome the presumption of immigrant intent. In other words, section 214(b) assumes that all temporary non-immigrant visa applicants actually seek to mislead the U.S. government and permanently immigrate to the U.S. Accordingly, non-immigrant visa applicants must show that they have strong ties to their home country that will compel them to depart the U.S. at the end of their authorized U.S. stay. If they cannot show this, the non-immigrant visa application must be denied.
For the purposes of the Report, DHS defines an “overstay” as a non-immigrant who was lawfully admitted to the U.S. for an authorized period of time but remained in the U.S. beyond his or her authorized period of admission. DHS identifies two types of overstays: 1) individuals for whom no departure has been recorded (Suspected In-Country Overstays), and 2) individuals whose departure was recorded after their authorized period of admission expired (Out-of-Country Overstays). The summation of both of these types of overstays is entitled “Total Number of Overstays.” It should also be noted that the Report separates Visa Waiver Program (“VWP”) country overstay figures, such as for France, United Kingdom, and Japan, from non-VWP country figures.
The 2017 Overstay Report Figures:
The following is a summary of the FY2017 overstay report. For specifics, please refer to the actual report here. For FY2017, there were approximately 52,656,022 non-immigrants admitted into the U.S. with expected departures occurring in FY2017. Of this number, DHS calculated a Suspected In-Country Overstay rate of 1.15% and a total overstay rate of 1.33%.
For persons admitted to the U.S. for business or pleasure from VWP countries, the Suspected In-Country Overstay rate was 0.51% and the total overstay rate was 0.58%. For persons admitted to the U.S. for business or pleasure from non-VWP countries, the Suspected In-Country Overstay rate was 1.91% and the total overstay rate was 2.06%. In contrast, for Vietnamese persons admitted to the U.S. for business or pleasure, the Suspected In-Country Overstay rate was 2.53% and the total overstay rate was 3.07%.
For persons admitted to the U.S. as students and exchange visitors, the Suspected In-Country Overstay rate was 2.35% and the total overstay rate was 4.15%. In contrast, for Vietnamese persons admitted to the U.S. as students and exchange visitors, the Suspected In-Country Overstay rate was 6.11% and the total overstay rate was 8.75%.
For persons admitted to the U.S. under all other non-immigrant classes, the Suspected In-Country Overstay rate was 1.90% and the total overstay rate was 2.66%. In contrast, for Vietnamese persons admitted to the U.S. under all other non-immigrant classes, the Suspected In-Country Overstay rate was 32.94% and the total overstay rate was 35.54%.
Conclusion:
As explained above, the overstay report is important because it can negatively affect whether visa applicants from countries with high overstay rates are approved for non-immigrant visas. This is so because section 214(b) of the INA requires non-immigrant visa applicants to overcome the presumption of immigrant intent by showing that they have strong ties to their home country that will compel them to depart the U.S. at the end of their authorized U.S. stay. Failure to make this showing will result in a visa denial.
The “Fiscal Year 2017 Entry/Exit Overstay Report” shows that Vietnam’s Suspected In-Country Overstay rates and Vietnam’s total overstay rates are higher than the average in every noted category. The good news is that for the business and pleasure category, Vietnam’s overstay rates are only slightly higher than the average overstay rates for this category. As for the student and exchange visitor category, Vietnam’s overstay rates are noticeably higher than the average overstay rates for this category (Vietnam: 6.11% Suspected In-Country Overstay rate and 8.75% total overstay rate; and, average: 2.35% Suspected In-Country Overstay rate and 4.15% total overstay rate). The bad news is that for all other non-immigrant classes, Vietnam’s overstay rates are a lot higher than the average overstay rates for this category (Vietnam: 32.94% Suspected In-Country Overstay rate and 35.54% total overstay rate; and, average: 1.90% Suspected In-Country Overstay rate and 2.66% total overstay rate). The foregoing helps explain why certain non-immigrant visa applicants from Vietnam are denied for visas. It should also be noted that the Report does not consider fraud rates. To view the actual report, please click here.
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