The Department of State has published its final rule on changes to the issuance of nonimmigrant temporary visas for business or pleasure (B-1/B-2 visa). The rule establishes that traveling to the US for the primary purpose of obtaining US citizenship for a child by giving birth in the US — otherwise known as “birth tourism” — is an impermissible basis for the issuance of a B nonimmigrant visa. This rule is in immediate effect.
“A consular officer shall deny a B nonimmigrant visa to an alien who he or she has reason to believe intends to travel for this primary purpose.”
The Department of State reports several reasons behind its implementation of the rule. First, the Department of State seeks to clarify the ambiguous scope of activities covered by the phrase “visiting the US [. . .] temporarily for pleasure.”
For purposes of visa issuance, the term “pleasure” in INA §101(a)(15)(B) refers to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or services nature. Furthermore, the DOS seeks to clarify that traveling to the US for the primary purpose of obtaining US citizenship for a child by giving birth in the US is not a legitimate activity permitted for the issuance of a visa.
Within its publication, the DOS reports its awareness of many instances of birth tourism, citing that thousands of children are born in the US to B-1/B-2 nonimmigrants annually.
Through this phenomenon, the Department of State believes that birth tourism poses a threat to national security as it enhances both foreign governments’ and entities’ access to the US.
In addition, the rule promotes fairness as the publication addresses the stark difference between using a temporary visa for birth tourism to gain US citizenship versus the extensive, rigorous procedure that foreign nationals normally undergo during the process of naturalization.
Under the new rule, there is a rebuttable presumption that a B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the US is traveling for the primary purpose of obtaining US citizenship for the child. In order to rebut this presumption, the visa applicant must establish a legitimate primary purpose other than birth tourism.
For example, it is unlikely that an applicant will be issued a visa simply by showing receipts for a birth plan in the US. However, an applicant who identified a birth plan in the US based on specialized medical care for a complicated pregnancy could potentially rebut the presumption.
The final rule also requires that B nonimmigrant visa applicants who seek medical treatment in the US must demonstrate, to the satisfaction of the consular officer, their prior arrangements for such treatment subject to the medical provider’s approval, and established their ability to pay all costs associated with such treatment.
