The State Department plans to publish a regulation tomorrow that targets “birth tourism” by foreign visitors seeking to confer U.S. citizenship on their child by giving birth while visiting the U.S. A prepublication version of the rule was published today.

Key points:

  • The final regulation is expected to be published tomorrow and take effect immediately.
  • The rule will amend existing regulations to explicitly state that traveling to the U.S. with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the U.S. is an impermissible activity on a B visitor visa.
  • The rule will establish a presumption that a B visa applicant is traveling to obtain U.S. citizenship for a child if a consular official has reason to believe she will give birth during her stay in the U.S. The applicant would have to rebut the presumption in order to obtain a visa.
  • The rule will also require that individuals applying for B visas to obtain medical treatment in the U.S. prove to a consular officer that they have a legitimate reason for the medical treatment, that a medical provider in the U.S. has agreed to provide the treatment and that they are able to pay all costs, including the medical treatment, travel and living expenses, during their stay.

BAL Analysis: U.S. consular officers already have wide latitude to deny applications for visitor visas, and the regulation signals greater scrutiny on new applicants for visitor visas. Although the State Department is issuing this rule without a companion regulation from the Department of Homeland Security, travelers should note that Customs and Border Protection officers at land borders and airports (who fall under DHS) may also increase their scrutiny of pregnant women entering the U.S. on visitor visas.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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