Last updated on: 10/25/2016 | Author:

Should Overstaying a Visa Be Considered a Federal Crime instead of a Civil Offense?

General Reference (not clearly pro or con)

The Congressional Research Service (CRS), in an Apr. 6, 2006 report entitled “Immigration Enforcement Within the United States,” offered the following:

“The INA [Immigration and Nationality Act] includes both criminal and civil components, providing both for criminal charges (e.g., alien smuggling, which is prosecuted in the federal courts) and for civil violations (e.g., lack of legal status, which may lead to removal through a separate administrative system in the Department of Justice). Being illegally present in the U.S. has always been a civil, not criminal, violation of the INA, and subsequent deportation and associated administrative processes are civil proceedings. For instance, a lawfully admitted nonimmigrant alien may become deportable if his visitor’s visa expires or if his student status changes. Criminal violations of the INA, on the other hand, include felonies and misdemeanors and are prosecuted in federal district courts. These types of violations include the bringing in and harboring of certain undocumented aliens, the illegal entry of aliens, and the reentry of aliens previously excluded or deported.”

Apr. 6, 2006

PRO (yes)


Ted Cruz, JD, US Senator (R-TX), in his 2016 presidential campaign statement, “Cruz Immigration Plan,” available at, accessed on Oct. 25, 2016, stated:

“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.”

Oct. 25, 2016


James Sensenbrenner, JD, U.S. Representative (R-WI), in a Dec. 16, 2005 statement on the House of Representatives floor regarding his proposed bill H.R. 4437, argued:

“[U]under current law, illegal entry into the United States makes an alien subject to a Federal criminal misdemeanor with a maximum penalty of 6 months in prison. However, unlawful presence itself, such as by overstaying a visa, is not a criminal offense, but only a civil ground of inadmissibility…

Aliens who have disregarded our laws by overstaying their visas to remain in the United States illegally should be just as culpable as aliens who have broken our laws to enter and remain here illegally. In the base bill, the maximum penalty for illegal entry was increased to a year and a day, and the same penalty was set for unlawful presence, to make the enhancements for these offenses consistent with the other penalty enhancements of the bill.”

Dec. 16, 2005


Daneen G. Peterson, PhD, anti-illegal alien activist, in an Apr. 13, 2006 article entitled “Illegal Alien Anarchy… Connecting the Dots!” retrieved from the United Patriots of America website, wrote:

“Ironically, the law [currently] defines the penalties for ‘aiding and abetting’ [illegal immigration] a felony. Where a felony is a penalty of more than one year in jail. Currently illegal aliens are supposed to receive a penalty of 6 months for illegally entering the United States, while those who ‘aid and abet’ those same illegal aliens can get up to five years. Does that make any sense?

The fact is that the lawbreaking illegal alien never receives that six month penalty. The local and state police can’t be bothered with the court process and filling their jails with those who will only receive a 6 months jail sentence and be charged with fines they will never pay. If the penalty were harsher and enforced then perhaps illegal aliens will be more reluctant to defy our laws.”

Apr. 13, 2006


Joseph George Caldwell, PhD, Financial Management Consultant, in a Feb. 18, 2006 article entitled “The US Government Wants Mass Immigration, Legal or Otherwise,” available on the Foundation website, wrote:

“If the U.S. government wanted to stop illegal immigration, it could do so, in about a week… an easy way to accomplish this is simply to make illegal immigration a capital crime, and publicly hang an illegal immigrant each day. Within days, illegal immigrants would be flooding back to Mexico and the other places they came from. In most countries of the world, illegal immigration is a serious crime. In the U.S., it is not a crime at all, but a civil misdemeanor. If the US government wanted to stop illegal immigration, it could do so in an instant.”

Feb. 18, 2006

CON (no)


Nancy Pelosi, U.S. Speaker of the House, in a Dec. 15, 2005 U.S. House official press release entitled “Pelosi Statement on National Immigration Policy,” stated:

“This provision [in H.R. 4437], …[to] make it a federal crime, instead of a civil offense, to be in the United States in violation of an immigration law or regulation… 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… Republicans have proposed a bill that is an abomination of the worst kind. It calls upon the worst political and most craven impulses. It is a failure of leadership – a failure of moral leadership.”

Dec. 15, 2005


Tom Tancredo, U.S. Representative (R-CO), in a Mar. 29, 2006 USA Today editorial opinion entitled “Myths vs. Facts,” wrote:

“[A] myth is that House Republicans want to make illegal presence in the USA a felony. The truth is Democrats voted for the felony provision, and a majority of Republicans (including me) voted against it. Right now, illegal presence in the USA is not a crime; it is a civil infraction.

The House Judiciary Committee voted to make it a felony but then was counseled that millions of new felons could clog our courts. Chairman James Sensenbrenner, (R-WI), wrote an amendment to his own bill [H.R. 4437] asking that the penalty be reduced from a felony to a misdemeanor; 191 Democrats and a few Republicans voted to keep the felony penalty in the hope that it would be a poison pill to defeat the measure.”

Mar. 29, 2006


The Immigrant Legal Resource Center (ILRC), in a Dec. 23, 2005 analysis entitled “Dangerous Immigration Legislation Pending in Congress!” stated:

“Dangerous immigration legislation is pending in Congress. Under current law, presence in the United States without valid status is a civil violation, not a criminal act. HR 4437 would create a new federal crime of ‘unlawful presence’ and would define immigration violations so broadly as to effectively include every violation, however minor, technical or unintentional, as a federal crime.

In addition to permanently barring the entire undocumented population – including 1.6 million children – from the United States, this would also lead to the tragic separation of families as undocumented members of mixed-status families would never be able to secure lawful immigration status in the United States.”

Dec. 23, 2005


Deseret News, a Salt Lake City, Utah, daily newspaper, in its Dec. 30, 2005 editorial entitled “Don’t Make Illegals Felons,” argued:

“Right now, illegal aliens are in violation of immigration regulations. Freeway speedsters are bigger scofflaws. But to jack unlawful residency violations up to felonies shows not only callousness, but a lack of imagination on the part of lawmakers. It also displays a complete lack of understanding of the havoc the move will create.

If the House has its way, when the student visa of a father of four from India expires, when a tourist from England overstays her welcome or a contracted worker from Colombia doesn’t get his papers renewed on time, they become ‘desperadoes’ — desperate criminals on a par with the thugs who rob liquor stores at gunpoint. Please. The only desperate souls here are the lawmakers who choose to throw good people in the clink and throw up their hands because they are bankrupt of ideas.”

Dec. 30, 2005