State Department Publishes Final Rule to Curtail Birth Tourism and to Codify Requirements on Foreign

On January 23, 2020, the U.S. Department of State (DOS) released an advanced copy of the final rule that amends its regulation governing the issuance of B visas. Effective January 24, 2020, the rule aims to limit the practice of “birth tourism” by women who enter the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the country. The rule establishes that birth tourism is not a permissible, legitimate activity for issuance of a B tourist visa. The DOS states the new rule reflects “a better policy, as birth tourism poses risks to national security.” Per the DOS, the industry associated with birth tourism is “rife with criminal activity, including international criminal schemes.” Furthermore, the new rule “would help close a potential vulnerability to national security that would be posed by any foreign government or entity that sought to exploit birth tourism to enhance access to the United States.” The DOS did not provide data on the number of children born in the United States due to birth tourism.

Under the new rule, an application for a B-1 /B-2 nonimmigrant visa for business or pleasure may be denied if the consular officer has reason to believe that a pregnant women’s “primary purpose” to travel to the United States for “birth tourism.” However, the rule provides little guidance on how consular officers will make this determination. Given the seemingly wide discretion granted to consular officers under this rule, it may be very difficult to challenge the denial of an application.

In addition, the new rule provides that any visa applicant who seeks medical treatment in the United States shall be denied a visa if he or she is unable to establish, to the satisfaction of a consular officer, (1) a legitimate reason why he or she wishes to travel to the United States for medical treatment, (2) that a medical practitioner or facility in the United States has agreed to provide treatment, and (3) that the applicant has reasonably estimated the duration of the visit and all associated costs. The applicant will also be denied a visa if he or she is unable to establish to the satisfaction of the consular officer that he or she has the means derived from lawful sources and intent to pay for the medical treatment and all incidental expenses, including transportation and living expenses, either independently or with the pre-arranged assistance of others.