On April 22, 2019, President Trump issued a new written policy entitled “Presidential Memorandum on Combating High Nonimmigrant Overstay Rates.” While the memorandum focuses on visitor visas, it also includes language that can impact all nonimmigrant visa holders and applicants.
The memorandum was issued after the Department of Homeland Security (“DHS”) released its Fiscal Year 2018 Entry/Exit Overstay Report last week. The report focuses primarily on visitors for business or pleasure, namely B-1 or B-2 visa holders or Visa Waiver Program (“VWP”) entrants, but also includes data and information related to international students and scholars as well. The report noted the overstay rates of visitors from specific countries throughout the world, however, the overstay rates include those nationals who are seeking a change of status or extension of status, but who had not received an approval before their period of authorized stay had expired, and also includes those who overstay their period of authorized stay but who later seek asylum or another legal immigration benefit.
Based on the number of visitors the United States receives each year, on average, only 2% of visitors overstay their period of authorized stay. However, the report also lists certain countries’ citizens that have higher overstay rates.
President Trump’s memo directs the Secretary of State to engage with governments that have a higher than 10% overstay rate in the B-1 and B-2 category based on the DHS’s report. These countries are predominantly located in Africa, the Middle East, and Southeast Asia. Within 120 days of the memo, the Secretary of State, in consultation with the Attorney General and the Secretary of Homeland Security, shall provide recommendations to the President on how to reduce these overstay rates. The recommendations can include “suspending or limiting entry of those countries who hold B-1 or B-2 visas; targeted suspension of visa issuance for certain nationals; limits to duration of admission…; and other documentary requirements.”
In addition to those countries that fall within the 10% overstay rate, the Secretary of Homeland Security is directed to provide a report to the President within 180 days of the memorandum on efforts “to reduce overstays from countries participating in the Visa Waiver Program…”
Finally, the Secretary of State and the Secretary of Homeland Security are also to develop measures “for imposing admission bonds” on all nonimmigrant visas, not just visitor visas. The Secretaries are tasked with providing this report within 120 days of the memorandum.
Citizens from countries with the 10% overstay rate who have B-1 or B-2 visas or are applying for these visas should be prepared to potentially have their applications denied, their visas cancelled, or their periods of authorized stay to be short in duration. Additionally, those from VWP countries should also look out for any news on changes to the VWP. Finally, employers, employees, scholars, and visitors who may have a nonimmigrant visa currently or in the future should be aware of any requirements to post an “admission bond” before being allowed entry into the US.
