As of January 24, 2020, some pregnant foreign nationals traveling to the United States will have more to overcome than tight seat-belts and inadequate bathrooms.
The Department of State has changed the rules for obtaining a B-2 “visitor for pleasure” visa. The new rule defines the term “pleasure” to not include gaining U.S. citizenship for a child by giving birth in the U.S. It also creates a “rebuttable presumption” that a woman who is pregnant and applying for a visitor-for-pleasure visa is doing just that.
The stated reason for the rule is to address the practice of “birth tourism.”
“Birth tourism” is the alleged practice of coming to the U.S. to have a baby so that the baby may obtain U.S. citizenship. The 14th Amendment holds that, "All 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." Thus, a person born on U.S. soil, waters, or airspace is a U.S. citizen.
The new rule
Whether or not you agree that giving birth involves “pleasure,” the new rule is rather awkward.
It directs consular officers who have reason to believe that a woman will give birth during her stay in the U.S. to deny a B-2 visa unless the woman proves that she has another “primary purpose” for her visit or that she is coming to the U.S. to receive necessary medical treatment.
The rule gives no guidance about how an officer would develop this “reason to believe” a pregnant woman is engaging in “birth tourism.” Social etiquette (and common sense) has long held that one should never ask a woman if she is pregnant.
Limited to B-2 visas
Note that the rule only applies to B-2 visas. Pregnant women using other visas should not be subject to the same scrutiny.
The preamble to the rule states that it does not affect visa waiver entries (i.e., entries by people from certain countries that are not required to obtain a visitor visa).
It also rather oddly notes that the change does not affect entries to the U.S., which are controlled by U.S. Customs and Border Protection (CBP) or effect any change to the 14th Amendment. While this is true - since CBP is a separate agency and the 14th Amendment is in the Constitution - these points are not usually stated. Whether they are meant to pre-empt litigation or signal that further rules are yet to come, only time will tell.
How will the rule affect me?
If you received a B-2 visa after January 24, 2020 (the date the rule became effective) and then gave birth to a baby in the U.S., it is possible that your statements during the visa application could be questioned later. This could happen in subsequent visa applications or during an application for “adjustment of status” to receive U.S. permanent residence.
It is important to answer consular officers’ inquiries truthfully and make a record of what you said in this situation (writing it down so you remember later) in case questions later arise.
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