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01.28.20

New DOS rule to address so-called “birth tourism”

BY Jason Gerrol

By notice dated January 24, 2020, the Department of State (DOS) amended its regulations governing the issuance of B visitor visas. The B visa category is commonly used for short-term visits to the U.S. for "business" (B-1) or "pleasure" (B-2), as those terms are defined in the regulations. Under the new DOS rule, the definition of "pleasure" will be revised to (1) expressly exclude "travel for the primary purpose of obtaining United States citizenship for a child by giving birth in the United States," and (2) impose stricter standards on B visa applicants wishing to travel to the U.S. for medical treatment. The rule is effective as of January 24, 2020.

Under the 14th Amendment, any person born on U.S. soil is a U.S. citizen by birth. The DOS rule uses the term "birth tourism" to describe individuals who travel to the U.S. for the primary purpose of giving birth, creating what the DOS describes as "a potential long-term vulnerability for national security." As such, the rule creates a rebuttable presumption that birth in the U.S. is the primary purpose of travel, meaning expecting mothers applying for a B visa must be able to demonstrate an alternative reason for travel to the satisfaction of the consular officer. The DOS rule states traveling to the U.S. for necessary medical treatment, even if likely to give birth in the U.S., may be acceptable, albeit under the stricter medical treatment guidelines imposed by the rule.

The rule does not change Department of Homeland Security (DHS) regulations, including eligibility for travel under the Visa Waiver Program, or entering the U.S. on a previously issued and valid B visa.

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Jason Gerrol

Of Counsel

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