The Department of State’s Bureau of Consular Affairs has amended its regulation governing the issuance of visas in the ‘‘B’’ nonimmigrant classification for temporary visitors for pleasure. The final rule, effective immediately, establishes that travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B nonimmigrant visa. Consequently, a consular officer “shall deny a B nonimmigrant visa to an alien who he or she has reason to believe intends to travel for this primary purpose,” the rule states, noting that this rule is an effort to combat the “birth tourism industry” as a matter of national security.

The final rule also codifies a requirement that a B nonimmigrant visa applicant who seeks medical treatment in the United States must demonstrate, to the satisfaction of the consular officer, the arrangements for such treatment and establish the ability to pay all costs associated with such treatment. The rule establishes a “rebuttable presumption that a 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 the child.”

Although the regulation amends the part pertaining to visitors for pleasure, the language is broad enough to subject B-1 business visitor applicants to the rebuttable presumption. The rule would thus also adversely affect women who seek to come to the United States to engage in legitimate business activities, which includes business meetings and entrepreneurial activities. The rule only applies to visa applicants at U.S. consular posts and not to visa waiver applicants whose first opportunity to establish their eligibility as visitors is at a U.S. port of entry. As of January 23, 2020, no guidance has been issued by U.S. Customs and Border Protection HQ to ports of entry concerning the final rule.

The Department said the rule is exempt from notice and comment under the foreign affairs exemption of the Administrative Procedure Act: “Opening this pronouncement of foreign policy to public comment, including comment from foreign government entities themselves, and requiring the Department to respond publicly to pointed questions regarding foreign policy decisions would have definitely undesirable international consequences.”

Details: Final rule,