New B-1/B-2 Visa Rules Target Birth and Medical Tourism

Today, the U.S. Department of State (DOS) published a final rule in the Federal Register that aims to prevent women from being issued B-1/B-2 visas for purposes of “birth tourism” – that is, traveling to the United States for the primary purpose of obtaining U.S. citizenship for a child. The rule also creates a number of barriers for B-1/B-2 applicants seeking medical care in the United States.

Note that the restrictions discussed in this article for B-1/B-2 visas also apply to B-2 visas.

Rule Prohibits “Birth Tourism”

The final rule explains that, in evaluating a B-1/B-2 visa application, the consular officer uses a “primary purpose test.” Under this test, a B-1/B-2 visa cannot be issued if the applicant either (a) primarily intends to engage in activities properly classified in a different visa category; or, (b) primarily intends to engage in any activity not permissible in the B-1/B-2 visa classification.

The DOS rule explicitly states that birth tourism is not a permissible purpose for issuance of a B-1/B-2 visa. Per the rule, if the consular officer has reason to believe the visa applicant will give birth while in the United States, there is a rebuttable presumption that the woman’s primary purpose for travel is to obtain U.S. citizenship for her child.

Overcoming Rebuttable Presumption

If a consular officer has reason to believe the B-1/B-2 applicant will give birth in the U.S., the preamble to the rule provides several examples of how an applicant may still be able to overcome the presumption that this is the person’s primary purpose for applying. For example, if a pregnant woman can demonstrate that the primary purpose for travel is to visit a dying relative in the U.S., even if this travel will mean that the child likely will be born in the U.S., this may be sufficient to overcome the presumption. Or, if a pregnant woman lives in a part of Mexico without proper medical facilities, and has a birth plan in the U.S. based on proximity to her residence in Mexico, this also may be a valid reason for the visa to be issued. Note that in this second example, the woman’s primary purpose of travel is to give birth in the U.S. – but, it is for medical reasons, not primarily for the child to be born as a U.S. citizen.

Restrictions on B-1/B-2 Visa Issuance for Medical Treatment

The rule also modifies the requirements to be issued a B-1/B-2 visa for purposes of seeking any form of medical treatment, including giving birth, in the United States. Per the rule, the applicant must satisfy several conditions for the visa to be issued. First, the applicant must satisfactorily explain the reason for coming to the U.S. to get the treatment. Second, the applicant must demonstrate that a medical practitioner in the U.S. has agreed to provide the treatment. Third, the applicant must demonstrate the availability of sufficient funds, obtained from lawful sources, and the intent to pay for all medical and related expenses.

Conclusion

This final rule went into effect upon its publication this morning. Note, however, that it only applies to those applying for B-1/B-2 visas at U.S. embassies or consulates. If a person requests admission to the U.S. in B-2 status based on B-1/B-2 visa that has already been issued, this new rule does not apply.

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