Trump has recently announced its changes to the B-1/B-2 tourist visa in its effort to “eliminate the criminal activity associated with the birth tourism industry.”
Trump has recently announced its changes to the B-1/B-2 tourist visa in its effort to “eliminate the criminal activity associated with the birth tourism industry.” According to the administration “an entire “birth tourism” industry has evolved to assist pregnant women from other countries to come to the United States to obtain U.S. citizenship for their children by giving birth in the United States, and thereby entitle their children to the benefits of U.S. citizenship.”
The Fourteenth Amendment to the U.S. Constitution provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Section 301(a) of the INA, 8 U.S.C. 1401(a) states that “a person born in the United States, and subject to the jurisdiction thereof” shall be a national and citizen of the United States at birth. There is no statute criminalizing travel to the U.S. with the intent to acquire U.S. citizenship at birth. Thus, it is not against the law to come to the U.S. with the intent of having a child that will acquire U.S. citizenship at birth.
Parents obtaining a visitor visa for the purpose of obtaining U.S. citizenship for their children to avoid the extensive requirements applicants must meet to pursue a green card and naturalization is of course understandable. Parents want to give their children the advantage of U.S. citizenship for the inconvenience of traveling to a foreign country to give birth. Unfortunately, there are those that exploit these parents’ good intentions for their own personal gain and the administration is correct in its crackdown of these individuals.
Still, this new policy is a misstep that opens up the possibility that female tourists will be targeted and persecuted by consular officers. Under this new rule, if a consular officer has reason to believe a B non-immigrant visa applicant will give birth in the United States, the applicant is presumed to be seeking a visa for the primary purpose of obtaining U.S. citizenship for the child. To rebut this presumption, the visa applicant must establish, to the satisfaction of the officer, a legitimate primary purpose other than obtaining U.S. citizenship for a child by giving birth in the United States.
This new policy creates an additional hurdle for female travelers that are pregnant. A pregnant tourist’s “primary purpose” of travel will be determined by the consular officer based on what the consular officer concludes is the tourist’s principal objective for traveling to the United States.
Existing policies already make it difficult to obtain a B visa. B visa applicants are already required to demonstrate that their trip to the United States is for a legitimate purpose. They must demonstrate that they plan to remain in the U.S. for a specific limited period of time. They must show that they have sufficient funds to cover the expenses of the trip and their stay in the United States. They must also have a residence outside the United States they have no intention of abandoning.
This new policy also creates an additional hurdle for female travelers that are not pregnant. A consular officer that suspects a traveler is pregnant and entering the U.S. for the purpose of giving birth in the United States must prove to the officer that they are not pregnant. There have already been cases reported where consular officers forced a woman to take a “fit-to-fly” medical assessment pregnancy test because they were observed to have a body size/shape resembling a pregnant lady.
Finally, it must be noted that this rule is exempt from notice and comment under the foreign affairs exemption of the Administrative Procedure Act (APA), 5 U.S.C. 553(a). Notice and Public content would certainly affect the implementation of this new requirement. The lack of this process further demonstrates the arbitrariness and capriciousness of this new rule.
See Woman forced to take pregnancy test for flight to Saipan, Saipan Tribune, https://www.saipantribune.com/index.php/woman-forced-to-take-pregnancy-test-for-flight-to-saipan (Nov 22, 2019); Neil Vigdor, Airline Apologizes for Requiring Passenger to Take Pregnancy Test Before Flight, The New York Times, (Jan. 16, 2020).