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DEPARTMENT of STATE 22 CFR Part 41 [Public This document is scheduled to be published in the Federal Register on 01/24/2020 and available online at https://federalregister.gov/d/2020-01218, and on govinfo.gov DEPARTMENT OF STATE 22 CFR Part 41 [Public Notice: 10930] RIN: 1400-AE96 Visas: Temporary Visitors for Business or Pleasure AGENCY: Department of State ACTION: Final rule. SUMMARY: The Department of State, Bureau of Consular Affairs (“Department”), is amending its regulation governing the issuance of visas in the “B” nonimmigrant classification for temporary visitors for pleasure. This rule 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 Department does not believe that visiting the United States for the primary purpose of obtaining U.S. citizenship for a child, by giving birth in the United States – an activity commonly referred to as “birth tourism”–is a legitimate activity for pleasure or of a recreational nature, for purposes of consular officers adjudicating applications for B nonimmigrant visas. The final rule addresses concerns about the attendant risks of this activity to national security and law enforcement, including criminal activity associated with the birth tourism industry, as reflected in federal prosecutions of individuals and entities involved in that industry. The final rule also codifies a requirement that B nonimmigrant visa applicants who seek medical treatment in the United States must demonstrate, to the satisfaction of the consular officer, their arrangements for such treatment and establish their 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. DATES: This rule is effective on [insert date of publication in Federal Register]. FOR FURTHER INFORMATION CONTACT: Megan Herndon, Deputy Director for Legal Affairs, Office of Visa Services, Bureau of Consular Affairs, Department of State, 600 19th St. NW, Washington, DC 20006, (202) 485-7586. SUPPLEMENTARY INFORMATION: I. What changes to 22 CFR 41.31 does this rule make? This rule makes certain changes to the Department’s regulation on B nonimmigrant visas, but does not change Department of Homeland Security regulations regarding the admissibility of aliens, including Visa Waiver Program travelers, or otherwise modify the standards enforced by officials of the Department of Homeland Security. The Department is revising the definition of “pleasure” and subdividing 22 CFR 41.31(b)(2) into three paragraph levels. The Department is retaining its existing, and longstanding, general rule that pleasure, as referred to in Immigration and Nationality Act (INA) section 101(a)(15)(B), 8 U.S.C. 1101(a)(15)(B), for purposes of visa issuance, refers to 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. The Department is also adding a provision that provides, for purposes of visa issuance, that the term pleasure, as used in INA 101(a)(15)(B), 8 U.S.C. 2 1101(a)(15)(B), does not include travel for the primary purpose of obtaining United States citizenship for a child by giving birth in the United States. The Department is renumbering this provision as paragraph (i). The Department is adding a provision that provides that a nonimmigrant B visa applicant seeking medical treatment in the United States shall be denied a visa under INA section 214(b), 8 U.S.C. 1184, if unable to establish, to the satisfaction of a consular officer, a legitimate reason why he or she wishes to travel to the United States for medical treatment, and that a medical practitioner or facility in the United States has agreed to provide treatment. Additionally, the applicant must provide the projected duration and cost of treatment and any incidental expenses. The applicant must also establish to the satisfaction of the consular officer that he or she has the means and intent to pay for the medical treatment and all incidental expenses, including transportation and living expenses, either independently or with the pre-arranged assistance of others. If an applicant’s responses to this line of questions are not credible, that may give consular officers reason to question whether the applicant qualifies for a visa in the B nonimmigrant classification, and could lead to additional questions as to whether the applicant intends to timely depart the United States, or intends to engage in other impermissible activity. The Department is renumbering this provision as paragraph (ii). The Department is adding a new paragraph (iii), which establishes a rebuttable presumption that any 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 a child. II. Why is the Department promulgating this rule? 3 Section 101(a)(15)(B) of the INA, 8 U.S.C. 1101(a)(15)(B), is ambiguous as to the scope of activities covered by the phrase “visiting the United States…temporarily for pleasure.” Birth tourism is not explicitly mentioned in INA 101(a)(15)(B), 8 U.S.C. 1101(a)(15)(B). The Department is aware that many foreign nationals have sought B nonimmigrant visas for the purpose of obtaining U.S. citizenship for a child by giving birth in the United States. The Department has concluded that a more reasonable interpretation of the statutory provision and a better policy is that the statutory provision authorizing the issuance of visas to temporary visitors for pleasure does not extend to individuals whose primary purpose of travel is to obtain U.S. citizenship for a child by giving birth in the United States. The Department considers birth tourism an inappropriate basis for the issuance of temporary visitor visas for the policy reasons discussed herein. As discussed below, this rule reflects a better policy, as birth tourism poses risks to national security. The birth tourism industry is also rife with criminal activity, including international criminal schemes, as reflected in federal prosecutions of individuals and entities involved in that industry. The Department recognizes that some aliens may wish to rely on U.S. medical facilities for birth because of specialized medical needs that can be met in the United States. Thus, given the Department’s longstanding practice of considering receipt of medical treatment as legitimate activity for purposes of B nonimmigrant visa issuance, this rule seeks to balance the United States’ strong interest in curtailing birth tourism with its interests in facilitating legitimate medical travel and other legitimate travel on a B nonimmigrant visa. In order to clarify when visa issuance for the purpose of travel to the 4 United States for medical treatment while pregnant (and likely to give birth) might be acceptable, the Department is codifying in regulation the standards regarding B nonimmigrant visa issuance for travel for medical treatment. Nothing in this rule purports to affect the acquisition of U.S. citizenship by individuals born in the United States, under the Fourteenth Amendment to the U.S. Constitution or INA 301, 8 U.S.C. 1401. A. Primary Purpose This rule, which explicitly establishes that birth tourism is not a permissible purpose for issuance of a B visa, also reflects – for the first time in regulation – a longstanding Department doctrine of visa adjudication – namely, the primary purpose test. Under the primary purpose test, a consular officer must consider a visa applicant’s primary (or principal) purpose of travel to evaluate the applicant’s eligibility for the requested visa classification. All of a visa applicant’s intended activities in the United States are considered in determining the applicant’s eligibility for a visa under standards set out in INA 212 and 214(b), 8 U.S.C. 1182 and 1184, and other applicable visa eligibility standards. The Department’s FAM guidance to consular officers on this point – that an “alien desiring to come to the United States for one principal, and one or more incidental, purposes should be classified in accordance with the principal purpose” – has remained unchanged for well over 30 years. Compare 9 FAM 41.11 N3.1 (August 30, 1987) with current 9 FAM 402.1-3 (last revised May 21, 2018).1 For B nonimmigrant 1 The Board of Immigration Appeals has also long evaluated an alien’s primary purpose in various contexts. See, e.g., Matter of Hoeft, 12 I&N Dec. 182 (BIA 1967) (alien whose primary purpose of entry was to engage in full-time employment and did not have a labor certification ineligible for Adjustment of Status); Matter of M-, 3 I&N Dec. 218 (BIA 1948) (alien not subject to Excludability under section 3 of 5 visa applicants, the primary purpose of travel must be for permissible B-1 or B-2 activity for business or pleasure. Under the primary purpose test, in the context of a B-1/B-2 visa application, a consular officer may not issue a visa to an applicant who: 1) primarily intends to engage in activity properly classified in another nonimmigrant visa classification; or 2) primarily intends to engage in any other activity not permissible in the B nonimmigrant visa classification. In addition, no visa may be issued to an alien who intends to engage in any unlawful activity.
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