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“B” Visitor Visa Rule Amended to Combat Administration’s Concern Over “Birth Tourism”

On Friday, January 24, 2020, the US Department of State published a final rule that amends part of the regulations governing the issuance of “B” visitor visas.  This regulatory amendment now establishes a rebuttable presumption that an applicant for a “B” visitor visa, who a consular officer believes will give birth during her visit to the US, is applying for the visa and traveling to the US for the primary purpose of securing US citizenship for the child.  The applicant may then be able to overcome this presumption; otherwise, the regulation requires consular officers to deny the “B” visa application.  This rule became effective on the date of publication—January 24, 2020.

So-called “birth tourism” has been a politicized phrase for many years.  Those who use it claim foreign national women travel to the US during their pregnancy to give birth to their child in the U.S.  Under the 14th amendment, any child born on US soil is automatically a U.S. citizen regardless of the parents’ citizenship or primary residence. 

This new rule is careful to explain that use of the “B” visa to utilize specialized U.S. medical services is still available—even for pregnant women, but that extra scrutiny and this shift of the burden to the applicant may occur if the primary purpose of travel to the US is to give birth in the U.S.  The rule implies that the need for such specialized medical treatment may be a primary reason for travel to the US, thus overcoming the presumption of U.S. birth for citizenship purposes.

State Department officials have confirmed that consular officers should not ask female visa applicants if they are or intend to become pregnant, nor will pregnancy tests be required.  However, as with all visa applications, this new rule places a lot of discretion in the hands of front line visa officers to make decisions about eligibility for visas.  The effectiveness of the rule must also be questioned, since for most countries, the “B” visa is valid for 10 years.

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William L. Coffman

Special Counsel

William L. Coffman focuses on immigration and nationality law at Mintz. He represents clients on immigration matters before the US Citizenship and Immigration Services, the Department of Labor, and US and foreign consulates.