Birth Tourism or Pregnant while Vacationing?

Visiting the United States to have a baby is not a legitimate activity for pleasure or an activity of a visitor’s visa recreational nature according to the US State Department.

The regulation governing the issuance of visas for temporary visitors for pleasure, or B Visas, has been amended to deny tourist visas to pregnant women if officials believe they are traveling to the US to secure American citizenship for their child by giving birth on US soil. 

The amendment to the visa, 22 CFR Part 41, gives consular officials the authority to deny a visitor visa if they have reason to believe the applicant intends to travel to the US for the “primary purpose” of giving birth. Moreover, if that consular official believes the applicant will give birth during her stay in the US, the regulation states that the officer’s only conclusion is that the primary purpose for the trip is obtaining US citizenship for the child. This forced conclusion is the result of the rebuttable presumption built into the regulation. Using this term when writing the regulation results in a situation wherein the woman who gives birth during her visit to the US is presumed guilty of birth tourism until she can present evidence to prove otherwise. 

This rule applies only to countries whose citizens must acquire a visa before visiting the US; it does not affect the 39 countries whose citizens can visit the US for up to 90 days without a visa. A list of those countries not affected by the rule is found in the Visa Waiver Program.

The rule defines and gives examples of what is “pleasure”, a term essential to the B visa. Pleasure, for purposes of visa issuance, refers to the legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or services nature. It will be the consular official’s decision whether an applicant’s primary purpose of travel is for pleasure, and he shall consider all the applicant’s intended activities in the US to make this determination. As with most applications or petitions evaluated by consular officials, the burden of proving her primary purpose lies with the applicant. 

A pregnant applicant can still enter the U.S. for the purpose of giving birth if proves that it is medically necessary for her to do so.  The regulation update gives examples of establishing to the satisfaction of a consular officer a legitimate primary purpose of entering:

1. An applicant from a part of Mexico lacking appropriate medical facilities who arranged a birth plan in the US based on proximity to her residence in Mexico.
2. An applicant who identified a birth plan in the US based on specialized medical care for a complicated pregnancy. 
3. An applicant who visits her dying parent, and during the visit may give birth in the US because her due date overlapped with her parent’s last expected months of life. 
4. An applicant’s child would acquire US citizenship if born outside the US based on the husband’s US citizenship and prior physical presence in the US. 

Navigating the pathways of immigration in the United States is difficult. For the best success in visiting or immigrating to the US, consult an experienced immigration attorney to assess your visa eligibility, advise you on the forms and documents to submit, and assist you with the application process to get the B-2 or combined B-1/B-2 visa.

This article provides general information only. It is based on laws, regulations, and policies that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship