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State Department Rule Prohibiting Birth Tourism

30 Jan

The U.S. Department of State (DOS) published a final rule effective January 24, 2020 to amend regulations for B-2 temporary visitors for pleasure. The rule explicitly provides that Consular Officers should deny B visa applications found to be made with “the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States,” referred to as “birth tourism.”  While U.S. Consular Officers applied and continue to apply the rebuttable presumption that all foreign nationals who apply for a B visitor visa intend to immigrate to the United States, the concept of “birth tourism” was not clearly impermissible before this regulation.

Pregnancy creates a rebuttable presumption by U.S. Consular Officers that the primary purpose of U.S. travel is impermissible “birth tourism,” so pregnant women seeking to apply for a B-1/B-2 visa for business or tourism unrelated to giving birth are recommended to consult with an immigration attorney prior to their consular visa application.  Seeking medical treatment remains a permissible B-2 visitor activity along with other visitor activities outlined in the U.S. Department of State Foreign Affairs Manual.

This change should not impact other U.S. nonimmigrant visa classifications, such as H-1B Specialty Occupation or L-1 Intracompany Transferee visas, but it is unclear how this rule may impact B-2 visa applications by cohabitating partners of those in H-1B or L-1 status who may be or may become pregnant in the United States while accompanying their cohabiting partner to the United States. This permissible purpose for B-2 visa classification is utilized by unmarried cohabitating partners of such H-1B or L-1 visa holders who do not qualify for H-4 or L-2 status as not married to the H-1B or L-1 visa holder.

Foster will continue to monitor changes to consular visa requirements and procedures and will make updates about future developments available via our Firm’s website at www.fosterglobal.com and in Immigration Updates©.