New Rule Allows Visitor Visa Denials to Pregnant Women

In a final rule issued and effective on January 24, 2020, the State Department has created a new presumption that any woman applying for a visa to visit the United States whom a consular officer “has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.”   Unless that “primary purpose” presumption is rebutted, a visa will be denied.

The new rule will give consular officers license to grill visibly pregnant women about their intent in seeking a visa to the U.S., and to make women feel harassed and vulnerable.  It will likely depress tourism from overseas.   Overseas “long haul” travel to the U.S. has already declined in recent years, with the U.S.’s share of that market declining from 13.7% in 2015 to 11.7% in 2018.   This new rule likely will further jeopardize the U.S. share of international travel, an industry that generates billions of dollars of revenue and directly supported 1.2 million U.S. jobs in 2018.

While the U.S. indeed confers citizenship at birth to babies born in the U.S., that citizenship provides no immediate benefit to the parents of the child.   A U.S. citizen cannot petition for her/his parent’s permanent residency until he or she is over 21 years old.   Having a U.S. citizen child also doesn’t provide any automatic protection from deportation to parents lacking legal status in the U.S.

While the rule acknowledges that there are no firm estimates of the extent of “birth tourism,” it claims the new presumption is needed for unspecified national security reasons.  If that is the rationale, the rule is an ineffective measure.  The U.S. routinely issues multiple entry visitor visas valid for five or ten years.  A woman issued a visa when not pregnant could travel to the U.S. years later when pregnant and give birth.  Moreover, the rule won’t apply to women who are citizens of the 39 countries who do not need visas in order to travel to the U.S. to visit for stays of 90 days or less.

For additional comments on the new rule, see this post from the Cato Institute, and a critique by a former chief of the Legal Advisory Opinion section of the Visa Office in the Department of State (paywall).