Last Friday, the Department of State published its final rule implementing new regulations regarding “birth tourism.” Effective now, the new rule amends how and whether B nonimmigrant, or tourist, visas are issued, particularly to those who may be pregnant. The new language clarifies that applying for or entering on a tourist visa for the primary purpose of granting a child US citizenship (via birth in the US) is not within the scope of permissible activity for a visitor’s visa. Pleasure may refer to legitimate activities such as sightseeing, amusement, visiting friends/family, even medical treatment-but not to give birth in the US so that the infant becomes a US citizen. This latter practice has become common enough that national security and law enforcement concerns are now implicated.
Through these new regulations, consular officers now may summarily deny visitor’s visas to those who appear pregnant and intent on coming to the US to give birth. To be specific: if the officer has reason to believe that an applicant will give birth in the US, it will be presumed that the applicant is applying for the main purpose of obtaining citizenship for the child. This will technically be a rebuttable presumption-in other words, an applicant can still furnish evidence to demonstrate that birth tourism is not the main motivation behind seeking to enter the US. But for all practical purposes, this presumption will likely be very hard to overcome, especially in the light of the current bias as well as notorious brevity of consular interviews. As an example, the Department of State notes that someone entering the US to visit a dying relative, and whose due date happens to coincide with the relative’s last days, may be able to overcome this presumption. Short of such an extreme example, though, many cases will presumably not pass muster. As is evident, these new rules inject a tremendous amount of subjectivity into the equation. If an officer, for whatever reason, doubts a pregnant person’s stated intentions, he/she will have increased legal authority under this rule to deny a visa.
This certainly does not mean the end of tourism to the US. However, it does signal an increased scrutiny of such applications. It is no longer just a simple matter of showing up at the consulate and applying for a tourist visa. One should be prepared to explain with specificity the primary reason behind the application as well as demonstrate one’s non-immigrant intent, that is, that one has a genuine intention to return to the native country.
For more information on how to obtain a visitor’s visa to the US for a loved one, please contact our office.