New Restrictions Affect Pregnant Travelers to the U.S., to Deter "Birth Tourism"

"Birth tourism" might come to an end under changed State Department regulations.

** LEGAL UPDATE **

In January of 2020, the U.S. State Department (DOS) issued a major amendment to its regulations, to take effect immediately, restricting the ability of pregnant women to travel to the United States on B-2 tourist visas.

According to the DOS, the amendment's purpose is to prevent “birth tourism,” or the practice of coming to the U.S. to deliver one’s child so that the child can automatically obtain U.S. citizenship. These are sometimes called "anchor babies," based on the parents' possible (and incredibly long-term) plan of having the child assist them to immigrate after growing up.

The DOS cites concerns over criminal activity in the birth tourism industry, while critics charge it represents Trump's obsession with stopping the movement of people into this country altogether.

(For related information, see Will Having U.S. Citizen Children Prevent Deportation of Undocumented Immigrant? )

New Restriction Applies Only to People Seeking Tourist Visas

It is important to emphasize that the new rule will affect only people applying for a B visa (also referred to as a "tourist" visa) at a U.S. consulate abroad in order to travel to the United States.

The rule does not apply to people applying for lawful permanent residence in the U.S. (a “green card”) or for any other kind of temporary ("nonimmigrant") visa to come to the U.S., such as an F-1 academic or M-1 vocational student visa, or H-1B work visa.

The rule also does not apply to people who travel to the U.S. with visas they previously obtained or as tourists on the Visa Waiver Program.

Rule Establishes Presumption of Birth Tourism for Pregnant Women

Under the new rule, a noncitizen who will give birth during the period of time her tourist visa is valid will be presumed to be visiting the U.S. for the purpose of obtaining U.S. citizenship for her child.

If you are pregnant and applying for a tourist visa, you will have to overcome this presumption by demonstrating that you have another valid reason for visiting the U.S. or that you do not intend to give birth in the United States so that your child will obtain citizenship. If you have evidence of another reason that you are visiting the U.S. or proof you will return before your child is born, you should bring that evidence to your visa interview.

Women Entering the U.S. to Seek Medical Treatment Can Still Qualify for Tourist Visa, But Will Face Increased Scrutiny

Anyone applying for a tourist visa for the purpose of seeking medical treatment in the U.S. must show that a medical professional in the U.S. has already agreed to provide the needed treatment and that they have the financial means to pay for the medical treatment.

The new regulations don't change that, but they add a condition for pregnant woman. One who seeks to travel to the United States to obtain medical treatment will additionally need to prove to the consular officer that the medical treatment is the reason for her travel and she does not wish to travel to U.S. so that her child can obtain U.S. citizenship.

How Will Consular Officers Find Out That Women Are Pregnant?

Asking whether female visa applicants are pregnant will NOT become part of the consular interview. Beyond that, however, exactly how this rule is to be implemented is somewhat unclear. The State Department has been trying to assure people that being pregnant is not, by itself, a bar to entry, and that they will follow up only if they have reason to believe that giving birth in the U.S. is the primary purpose of a visa applicant's travel.

In any case, it is important to be honest if you are asked if you are pregnant during your visa interview and you know that you are pregnant. If you are dishonest with a consular officer when applying for a tourist visa, you could later be found to have committed visa fraud and be ineligible to enter the United States.

Effective Date: January 24, 2020