The Trump Administration is turning its attention to birth tourism again. President Trump was reportedly considering trying to end the practice with an executive order or by way of a constitutional challenge. But accomplishing the goal through regulation has been on the Department of State’s (DOS) agenda. DOS published a final rule on January 24, 2020 that clarifies that an individual cannot obtain a B visa in order to enter the United States to give birth to a child who will automatically obtain U.S. citizenship.
This move can be seen as part of the Trump Administration’s “extreme vetting” efforts. According to one DOS official: “This change is intended to address the national security and law enforcement risks associated with birth tourism, including criminal activity associated with the birth tourism industry . . .” Officials have already made arrests and charged operators of birth tourism companies with conspiracy to commit immigration fraud and money laundering. The new regulation would do more to try to stem the tide at its source – making it illegal to enter the United States for the purpose of birth tourism. The Administration recognizes that this would not prevent women who already have B visas from entering the United States, at a later date after they become pregnant. Despite that, the Administration sees this as a first step toward establishing that the practice is wrong. As a second step, such regulations could also be used by Customs and Border Protection (CBP) to deny admission to some pregnant women at the ports of entry if they are suspected of coming to the United States to give birth to a new U.S. citizen.
Birth tourism made it into the news in early January 2020, when Hong Kong Express Airways would not let a Japanese woman board a flight to Saipan because they suspected she was pregnant and wanted to give birth on U.S. soil. Saipan is the largest island in the Commonwealth of the Northern Mariana Islands, U.S. territory. It has become a popular birth tourism location in part because Chinese nationals can visit Saipan without obtaining a visa. Chinese tourists have been able to enter Saipan without visas since 2009. In 2009, 12 Chinese tourists gave birth on the island. By 2018, the number was 575. Authorities in the Commonwealth have resolved to limit birth tourism. Due to health concerns and concerns about tourism in general, the length of stay for Chinese tourists has been cut to 14 days – down from 45 days.
Knowing that pregnant women might be turned back at the border and because airlines have the obligation to fly such passengers back to their departure locations, airlines themselves have initiated various pre-screening efforts. Hong Kong Express went quite far and required the Japanese woman to take a pregnancy test because she looked as though she might be pregnant. She was not. The airline apologized and has suspended this practice.
Under the new B visa regulations:
- Travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B visa;
- B visa nonimmigrant applicants who seek medical treatment in the U.S. must demonstrate that a medical practitioner or facility has agreed to provide treatment, the projected duration and cost of the treatment, and that arrangements have been made for payment for the treatment as well as incidental costs;
- There is a rebuttable presumption that a B nonimmigrant applicant who a consular officer has reason to believe will give birth during her stay in the U.S. is travelling for the primary purpose of obtaining U.S. for the child; and
- That rebuttable presumption may be overcome based upon specialized medical treatment or other reasons such as visiting a dying relative or a showing that the child has other access to the U.S. citizenship.
If you have questions about how the effect of this new Final Rule, please reach out to your Jackson Lewis attorney.