The Department of State (DOS) last week published a final rule effective January 24, 2020, that states consular officers will deny applications for B nonimmigrant visas if the officer believes that the foreign national applicant intends to travel to the US for the primary purpose of obtaining US citizenship for a child by giving birth in the US, commonly referred to as “birth tourism.” The final rule states that the DOS is addressing the issue of “birth tourism” since it “creates a potential long-term vulnerability for national security” and since the “birth tourism” industry is “rife with criminal activity, including international criminal schemes.” The final rules states:
Under this rule, if a consular officer has reason to believe a B nonimmigrant visa applicant will give birth in the United States, the applicant is presumed to be seeking a visa for the primary purpose of obtaining US citizenship for the child. To rebut this presumption, the visa applicant must establish, to the satisfaction of a consular officer, a legitimate primary purpose other than obtaining US citizenship for a child by giving birth in the United States.
The final rule additionally codifies a requirement that “B nonimmigrant visa applicants who seek medical treatment in the United States must demonstrate, to the satisfaction of the consular officer, their arrangements for such treatment and establish their ability to pay all costs associated with such treatment.”
While the final rule includes the estimate that thousands of children are born annually in the US to B-1/B-2 nonimmigrants, the agency admitted they are not able to determine a precise number. State Department officials note that officers would not ask if B visa applicants are pregnant, nor will applicants undergo pregnancy tests. The final rule does not affect visitors from the thirty-nine countries that qualify for the Visa Waiver Program, which allows nationals of those countries to visit the US for short periods without the need to obtain a visa.
Kerri Talbot, the director of federal advocacy for Immigration Hub, an immigrants’ rights group, criticized the DOS for not clarifying exactly how consular officers would determine if the foreign national applicant was pregnant. “It is absurd that the Trump administration is turning embassy employees into reproductive policemen,” Talbot told the New York Times.
“It is largely symbolic,” Sarah Pierce, an analyst at the Migration Policy Institute, told BuzzFeed News about the final rule. “It’s not going to have a huge effect on the issue. This is mostly symbolic and another way to say the US is closed.”