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US DOS Amends B Tourist Visa Regulations to Prohibit “Birth Tourism”

US DOS Amends B Tourist Visa Regulations to Prohibit “Birth Tourism”

On January 24, 2020, the Bureau of Consular Affairs for the U.S. Department of State (DOS) published a final rule establishing a “rebuttable presumption” that a foreign national applicant for a B nonimmigrant visa for pleasure, who a consular officer has reason to believe will give birth during her stay in the United States, is traveling for the primary purpose of obtaining U.S. citizenship for the child. The rule requires consular officers to deny B nonimmigrant visas to applicants who do not overcome the presumption. The rule does recognize that some foreign nationals may seek to travel to the U.S. for childbirth because of specialized medical needs, but these applicants are required to establish that they have the means and intent to “pay for the medical treatment and all incidental expenses.” 

This rule does not affect citizens of the 39 countries that are part of the Visa Waiver Program administered by the Department of Homeland Security (DHS). 

While language in the rule specifies that it applies to applicants B nonimmigrant visas “for pleasure” – B-2 visas – the revised authority itself includes broad language stating: “Any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.” (Emphasis added.) It is possible that women seeking entry for business purposes with a B-1 visa may also be subject to this presumption. 

The DOS justifies this rule based on their “estimate” that thousands of children are born in the U.S. as a result of so-called “birth tourism,” creating a “potential long-term vulnerability for national security.”  

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