A new US Department of State policy that took effect on January 24 makes it more difficult for pregnant women to obtain B nonimmigrant visas to visit the United States if the consular officer has reason to believe that the primary purpose of their travel is to give birth in the United States for their child to become a US citizen – a practice commonly known as “birth tourism.”
The rule establishes a rebuttable presumption that an applicant who a consular officer has reason to believe will give birth during the stay in the United States is traveling for the primary purpose of obtaining US citizenship for the child. This does not apply to foreign nationals from countries who are part of the Visa Waiver Program and are therefore eligible to apply for an ESTA for temporary visits for tourism or business.
US consular officers are now required to determine whether there is a reason to believe a B nonimmigrant visa applicant will travel for the primary purpose of giving birth in the United States. If the consular officer has reason to believe the applicant will give birth in the United States during their intended stay, the consular officer is instructed to continue to evaluate the credibility of the applicant’s claimed purpose of travel by asking all necessary questions. However, officers must not ask a visa applicant whether they are pregnant unless the officer has “a specific articulable reason to believe” they may be pregnant and planning to give birth in the United States.
As part of this new policy, applicants who are applying for B nonimmigrant visitor visas for the purposes of seeking medical treatment in the United States will be required to demonstrate to the consular officer that they have arranged for the treatment and have the ability to pay the costs associated with such treatment. Employers with offices globally may experience additional difficulties for targeted employees who need to apply for B nonimmigrant visitor visas to conduct business trips to US offices.
If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
Laura C. Garvin