Practice Alert: New DOS Final Rule Concerning “Birth Tourism” and Medical Treatment for B Visa Applicants

Update - January 24, 2020

Today, January 24, 2020, the final rule was posted in the Federal Register and subsequently became effective.

In addition, AILA’s CBP Liaison Committee has confirmed with the CBP that as of January 23, 2020, no guidance has been issued by CBP HQ to ports of entry concerning the final rule.

On January 23, 2020, the Department of State posted for public inspection a final rule in the Federal Register amending its current regulation concerning the issuance of B nonimmigrant visas for individuals on a visit for “pleasure.” The rule will be effective as of publication in the Federal Register on January 24, 2020. According to the Department of State, this rule is exempt from notice or comment based on the foreign affairs exemption of the Administrative Procedure Act (APA) and is necessary to address national security and law enforcement concerns related to the “birth tourism industry.”

This rule is specific to the Department of State and the issuance of B nonimmigrant visas. The rule specifically states that this does not change the Department of Homeland Security’s regulations on inadmissibility or impact the Visa Waiver Program. AILA will continue to monitor the actions of other agencies, such as Customs and Border Protection (CBP), in this regard.

Summary of Rule

The rule amends 22 CFR 41.31 to include three paragraphs.

The first paragraph, amends the Department of State’s regulations on B nonimmigrant visas to clarify that tourism for the purpose of obtaining U.S. citizenship for a child by giving birth in the United States, or “birth tourism,” is not a permissible activity for a temporary visitor visa, or B visa.

The second paragraph codifies current standards for obtaining a B nonimmigrant visa for the primary purpose of obtaining medical treatment, requiring such individuals to provide documentation showing that a physician and/or hospital has agreed to provide the treatment and that the applicant has the means to provide payment for all expenses, including incidentals, either independently or with prearranged assistance of others.

Lastly, in 22 CFR 41.31(iii), the Department creates a rebuttable presumption “that any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is traveling for the primary purpose of obtaining U.S. citizenship for a child.” This assumption is considered fact until disproved. In order to rebut this assumption, the applicant must establish that her primary purpose for entering the United States is not to give birth to a U.S. citizen child. The Department does acknowledge that medical treatment for a complicated pregnancy, when demonstrated, may be sufficient to overcome this assumption, though it is not a guarantee.

Moving Forward

AILA will continue to monitor the rollout and implementation of this rule, as well as its consequences on both stakeholders and the policies of other government agencies.

Cite as AILA Doc. No. 20012361.