FAQ on New Birth Tourism Rules

Posted on January 28, 2020

The Trump Administration announced new rules regarding birth tourism, which took effect on January 24, 2020. Already, misinformation has cropped up. So to provide some clarity, the below FAQ is provided:

Whom do the new rules affect?

They only affect applicants for B visitor visas; they do not impact current holders of visas nor citizens of Visa Waiver Program countries who can enter the US without a visa.

May current holders of visas and those who hold passports from Visa Waiver Program countries enter the United States to give birth?

The Department of Homeland Security, which include Customs and Border Protection inspectors at ports-of-entry, has not announced any new policies or reinterpretations of allowing entry for those who enter to give birth. In the past inspectors permitted women to enter the US to give birth as long as they could show the ability to cover the cost of birth. However, one can anticipate that DHS will announce new rules soon making it more difficult for “birth tourists”. If new DHS rules are not forthcoming, one can foresee inspectors becoming more strict in allowing visitors to enter the US for the explicit purpose of giving birth. In any event, birth tourists are well-advised to be honest in their dealings with CBP: even if they are successful in entering the US, at some point in the future, they could be held accountable for any misrepresentations, i.e. their visa could be revoked and a consular officer or CBP inspector could find them inadmissible permanently for lying to a CBP inspector.

Why did the Department of State change its rules?

The Department of State cites to potential security threats in the future, that unfriendly countries could “activate” such US born citizens at some point and use them against the US. Because such individuals are not screened nor obliged to spend any time in the US, as those who apply for US citizenship through the naturalization process are, DOS believes that this could lead to a backdoor threat from those who have no loyalties to the United States. The Department of State also justified the need for these new rules to counteract scammers and fraud in the visa process, as well as to address the problem of foreign nationals not paying hospital bills, leaving US taxpayers to foot the bills.

Which visa applicants will these new rules apply to?

They only apply to those whose primary purpose for making the visa application is to give birth in the United States. If the consular officer has reason to believe that the visa applicant will give birth during her visit to the United States, then the consular officer will assume that the primary purpose of the visa is to obtain US citizenship for the child. It is then up to the applicant to overcome this assumption.

The rules do not apply in four specific situations. Firstly, if the applicant has a different primary purpose — e.g., visit a sick relative or a business conference — then the visa should be issued. According to the Department of State, “An applicant who is pregnant, who has no desire or no plan to give birth in the United States, would certainly be issued a visa for whatever their other primary purpose of travel is." In addition, if the applicant’s primary purpose is “medical” — e.g., she may endure complications in the delivery process — then that may allow for issuance of the visa if 1) there is a doctor/hospital letter agreeing to provide for treatment and 2) the visa applicant has the money to cover the expenses. Thirdly, if a female applicant applies for a visa, is not pregnant, receives the visa, and later becomes pregnant, the new rules do not apply to her. It is the current intent of the visa applicant that is examined at the time of the visa application. Finally, these new rules do not apply to those applying for student or employment visas: either as the principal applicant or accompanying spouse.

When will the consular officer have reason to believe that the applicant will give birth in the US?

A “reason to believe” means not just being suspicious. There has to be some evidence. According to the new rules, a consular officer “must not ask a visa applicant whether they are pregnant unless” there is a “specific articulable reason to believe they may be pregnant and planning to give birth in the United States." The consular officer is prohibited from asking “all female applicants (or any specific sub-sets of applicants) whether they are pregnant or intend to become pregnant." Similarly, the consular officer cannot require women to take a pregnancy test, i.e, “provide evidence that they are not pregnant." However, if a woman “looks pregnant” or indicates that she is traveling to the US for medical purposes in her DS-160 form, this may open up questioning by the consular officer.

Tags: 212(a)(6)(C), B Visa, Birth Tourism, F-1 Visa, Misrepresentation, Public Charge, Revocation, Visa Denial, Visa Refusal, Visa Revocation, Visa Waiver Program (VWP)