[Federal Register Volume 85, Number 16 (Friday, January 24, 2020)]
[Rules and Regulations]
[Pages 4219-4225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01218]
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DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice: 10930]
RIN 1400-AE96
Visas: Temporary Visitors for Business or Pleasure
AGENCY: Department of State.
[[Page 4220]]
ACTION: Final rule.
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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 January 24, 2020.
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. 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?
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 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
[[Page 4221]]
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 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. An alien's ``primary
purpose'' of travel would be determined by the consular officer based
on what the consular officer concludes is the alien's principal
objective for traveling to the United States, following careful
consideration of information submitted by the applicant and the
consular officer's evaluation of the credibility of the applicant.
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\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 the Immigration Act of 1917, entry for immoral purpose,
where her primary purpose of travel was to visit fianc[eacute]e);
Matter of Healy and Goodchild, 17 I. & N. Dec. 22, 26 (BIA 1979)
(holding that an alien bound for the United States for the primary
purpose of study is not admissible as a nonimmigrant visitor for
pleasure).
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For example, consider a minor applying for a B nonimmigrant visa to
accompany his legal guardian, but not parent, in the United States on
another nonimmigrant visa classification (e.g., H-1B). The minor would
not qualify for a derivative visa (e.g., H-4), because he is not a
child of the guardian. In that case, the minor's primary purpose of
travel would be to accompany his guardian, which is permissible
activity in the B visa classification. The Department's FAM guidance
has long acknowledged a tension that arises with minors who are legally
required under state or local law in the United States to attend school
while residing, even if temporarily, in the United States, but whose
primary purpose of travel is to accompany an adult to whose household
they belong. The Department's FAM guidance has long provided that
``when a family member's primary purpose to come to the United States
is to accompany the principal, the classification of the accompanying
[minor] family member is either of a derivative of the principal, if
the classification provides, or as a B-2, if not.''
The burden is on the visa applicant to establish that he or she is
entitled to nonimmigrant status under INA 101(a)(15) of the INA, 8
U.S.C. 1101(a)(15), based on his or her primary purpose of travel, to
the satisfaction of the consular officer. See INA section 214(b), 291,
8 U.S.C. 1184(b), 1361.
B. National Security and Law Enforcement Concerns With Birth Tourism
The Department estimates that thousands of children are born in the
United States to B-1/B-2 nonimmigrants annually. While the Department
recognizes that precisely estimating the number of individuals who give
birth in the United States, after traveling to the United States on a
B1/B2 nonimmigrant visa, is challenging, reporting from U.S. embassies
and consulates has documented trends showing an increasing number of B
visa applicants whose stated primary purpose of travel is to give birth
in the United States. Permitting short-term visitors with no
demonstrable ties to the United States to obtain visas to travel to the
United States primarily to obtain U.S. citizenship for a child creates
a potential long-term vulnerability for national security. Foreign
governments or entities, including entities of concern to the United
States, may seek to benefit from birth tourism for purposes that would
threaten the security of the United States. This rule would help close
a potential vulnerability to national security that would be posed by
any foreign government or entity that sought to exploit birth tourism
to enhance access to the United States.
The Fourteenth Amendment to the U.S. Constitution provides that
``[a]ll persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of
the state wherein they reside.'' Section 301(a) of the INA, 8 U.S.C.
1401(a) states that ``a person born in the United States, and subject
to the jurisdiction thereof'' shall be a national and citizen of the
United States at birth. The INA provides a clear method for those who
do not acquire U.S. citizenship at birth to acquire it later:
Naturalization.
This is a stark difference between aliens using a temporary visitor
visa for the purpose of obtaining U.S. citizenship for their children
and the extensive requirements applicants must meet to naturalize to
become U.S citizens. To naturalize, an alien must establish attachment
to the principles of the Constitution of the United States and
favorable disposition toward the ``good order and happiness'' of the
United States, including a depth of conviction that would lead to
active support of the Constitution, and not be hostile to the basic
form of government of the United States, or disbelieve in the
principles of the Constitution. See 8 U.S.C. 1427(a); 8 CFR 316.11(a).
Adult citizens are entitled to numerous rights and benefits of
citizenship, including the right to vote in federal elections, the
ability to run for public office, the ability to serve on a jury, and
the option to petition immediate family members to immigrate to the
United States when they reach the age of twenty-one. Citizens have a
right to enter the United States even without a U.S. passport. See
Worthy v. United States, 328 F. 2d 386, 394 (5th Cir. 1964). The
previous regulation failed to address the national security
vulnerability that could allow foreign governments or entities to
recruit or groom U.S. citizens who were born as the result of birth
tourism and raised overseas, without attachment to the United States,
in manners that threaten the security of the United States.
An entire ``birth tourism'' industry has evolved to assist pregnant
women from other countries to come to the United States to obtain U.S.
citizenship for their children by giving birth in the United States,
and thereby entitle their children to the benefits of U.S.
[[Page 4222]]
citizenship.\2\ Birth tourism companies advertise their businesses
abroad by promoting the citizenship-related benefits of giving birth in
the United States. Companies tout a broad range of benefits for the
U.S. citizen child and eventually its family, including, but not
limited to, access to free education, less pollution, retirement
benefits, the ability to compete for jobs in the U.S. government, and
the ability for the whole family to eventually immigrate to the United
States.\3\
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\2\ United States v. Li, 19-cr-00016 (S.D. Cal., filed Jan 30,
2019), United States v. Liang, 15-cr-00061 (C.D. Cal., filed May 18,
2015).
\3\ Id.
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By obtaining a child's U.S. citizenship through birth tourism,
foreign nationals are able to help that child avoid the scrutiny,
standards, and procedures that he or she would normally undergo if he
or she sought to become a U.S. citizen through naturalization. Under
INA section 316, 8 U.S.C 1427, for example, such aliens generally are
required to fulfill a residency requirement of at least five years, be
a person of good moral character attached to the principles of the
Constitution, and be well disposed to the ``good order and happiness''
of the United States. Additionally, they are required to take an Oath
of Allegiance. See section 337(a) of the INA, 8 U.S.C. 1448(a). The
steps for naturalization are rigorous and include national security-
related inquiries, requiring applicants to meet stringent residency
rules, complete multiple forms collecting detailed personal
information, provide fingerprints, complete an in-person interview, and
pass English and civics tests.
Foreign travelers have sought to gain the numerous benefits of U.S.
citizenship for their children by obtaining visas to travel to the
United States to give birth, while in some cases, passing along the
costs to tax payers at the state and local level. Some of these
benefits include ease of travel to countries that offer visa-free
travel to U.S. citizens, the ability to study and work in the United
States, and a legal path for the child's parents to immigrate to the
United States once the child turns twenty-one. U.S. embassies and
consulates have reported that visa applicants intending to give birth
in the United States provide numerous reasons for their choice,
including, but not limited to, obtaining a second citizenship for their
child, the perceived low-cost medical services available to women in
the United States, the lower cost of obtaining U.S. citizenship through
birth tourism than through a U.S. investor visa, and the perceived
guarantee of a better socioeconomic future for their child.
While this rule will not preclude visa issuance to all aliens who
may give birth in the United States, it recognizes the risks posed by
allowing the previous visa policy to continue; and addresses some of
those national security threats that exist when aliens, who may have no
ties to, or constructive interest in, the United States, easily are
able to obtain U.S. citizenship for their children, through birth in
the United States.
The birth tourism industry in the United States also is a source of
fraud and other criminal activity, including international criminal
schemes. A recent federal indictment of 19 individuals on immigration
fraud charges shows that businesses in the lucrative birth tourism
industry committed ``widespread immigration fraud and engaged in
international money laundering,'' as well as defrauding ``property
owners when leasing the apartments and houses used in their birth
tourism schemes.'' \4\ According to the recent federal indictment, in
exchange for their services, birth tourism operators charged as much as
$100,000 and one of the largest operators is alleged to have used ``14
different bank accounts to receive more than $3.4 million in
international wire transfers'' in a two year period alone.\5\
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\4\ https://www.justice.gov/usao-cdca/pr/federal-prosecutors-unseal-indictments-naming-19-people-linked-chinese-birth-tourism.
\5\ https://www.justice.gov/usao-cdca/pr/federal-prosecutors-unseal-indictments-naming-19-people-linked-chinese-birth-tourism.
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This rule explicitly establishes that birth tourism is not a
permissible purpose of travel for issuance of a B visa. This rule will
help eliminate the criminal activity associated with the birth tourism
industry. The recent federal indictments describe birth tourism schemes
in which foreign nationals applied for visitor visas to come to the
United States and lied to consular officers about the duration of their
trips, where they would stay, and their purpose of travel. According to
the indictments that charge the operators of the birth tourism schemes,
foreign women were coached on how to pass their U.S. visa interviews by
lying on their visa application forms and providing false statements to
consular officers. The applicants also provided false statements on
their visa applications and in their interviews about the funds
available to them to cover the costs of their proposed treatment and
stay in the United States.\6\ When foreign travelers lie about their
true purpose of travel to the United States during their visa
interviews, consular officers may not identify a true basis for visa
ineligibility, including, for example, lack of intent or ability to pay
for the costs of their stay. This rule, by limiting the circumstances
in which an alien will be in a position to give birth in the United
States on a ``tourist'' visa, will potentially decrease the number of
birth tourism providers in the United States, thus discouraging aliens
from applying for visas to travel to the United States for this
purpose. By explicitly establishing that birth tourism is not a
permissible purpose for issuance of a B visa, this rule will reduce the
number of visa applicants who apply for B visas for the purpose of
birth tourism.
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\6\ United States v. Li, 19-cr-00016 (S.D. Cal., filed Jan 30,
2019). See also https://www.justice.gov/usao-cdca/pr/chinese-national-pleads-guilty-running-birth-tourism-scheme-helped-aliens-give-birth-us.
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This rule will help prevent operators in the birth tourism industry
from profiting off treating U.S. citizenship as a commodity, sometimes
through potentially criminal acts, as described above. The
investigation into birth tourism operators in California uncovered a
scheme where birth tourism operators enriched themselves ``using cash,
fabricated financial documents, and nominee names for the transfer of
money'' \7\ from overseas to the United States. In some cases, birth
tourism operators leased apartments by providing false information
about the true occupants of the residences, making false statements
about occupants' monthly income, and furnishing altered bank statements
in order to be approved for leases.\8\ The federal indictments
highlight accounts of birth tourism customers failing to pay all the
costs of giving birth in the United States, including hospital, doctor,
and other bills, which would then be referred to collection.\9\ In one
example, a couple ``paid only $4,600 of the $32,291 in hospital charges
related to the birth of their baby.'' \10\ In another example, a couple
paid a hospital the indigent rate of $4,080 for hospital bills that
exceeded $28,000, despite having more than $225,000 in a U.S. bank
account and making purchases at Rolex and Louis Vuitton stores during
their
[[Page 4223]]
time in the United States.\11\ Meanwhile, birth tourism operators are
earning millions of dollars through the scheme, evading taxes, money
laundering, and engaging in fraud to enhance their profits.
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\7\ https://www.justice.gov/usao-cdca/pr/federal-prosecutors-unseal-indictments-naming-19-people-linked-chinese-birth-tourism.
\8\ United States v. USA Happy Baby Inc., 19-cr-00027 (C.D.
Cal., filed January 20, 2019); United States v. Li, 19-cr-00016
(S.D. Cal, filed Jan 30, 2019).
\9\ United States v. Li, 19-cr-00016 (S.D. Cal., filed Jan 30,
2019).
\10\ https://www.justice.gov/usao-cdca/pr/federal-prosecutors-unseal-indictments-naming-19-people-linked-chinese-birth-tourism.
\11\ United States v. Li, 19-cr-00016 (S.D. Cal., filed Jan 30,
2019).
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C. Medical Treatment
Under previous Department guidance and under this rule, medical
treatment, whether medically necessary or elective, generally continues
to be permissible activity in the B nonimmigrant classification,
subject to certain restrictions.
Under guidance to consular officers in the Department's Foreign
Affairs Manual (FAM) \12\ and this rule, an applicant who seeks a B
nonimmigrant visa for medical treatment in the United States shall be
denied a visa under INA section 214(b), 8 U.S.C. 1184(b), 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. Additionally, the applicant must satisfy the consular
officer that a medical practitioner or facility in the United States
has agreed to provide treatment. The applicant must also establish to
the satisfaction of the consular officer that he or she has reasonably
estimated the duration of the visit and has the means, derived from
lawful sources, and intent to pay for the medical treatment and all
incidental expenses. If an applicant's responses to this line of
inquiry are not credible, that may give consular officers reason to
question whether the applicant intends to timely depart the United
States or intends to engage in other impermissible activity.
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\12\ See 9 FAM 402.2-4(A)(2).
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The two new sentences in Sec. 41.31(b)(2)(ii) added by this rule
track language about medical treatment and the B-2 nonimmigrant
classification on the Department's public facing website. See https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html.
\13\ The identified information often helps inform a consular officer's
determination whether the applicant qualifies for a B visa, including
whether the applicant overcomes the presumption in INA 214(b), 8 U.S.C.
1184(b), that he or she is an intending immigrant, and whether the
applicant is ``entitled to a nonimmigrant status under section
101(a)(15).'' INA 214(b), 8 U.S.C. 1184(b).
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\13\ Id.
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The Department is adding this provision to Sec. 41.31(b) now
because application of these factors will have a direct bearing on
implementation of this new policy that a primary purpose of obtaining
United States citizenship for a child by giving birth in the United
States (as opposed to travel for the primary purpose of obtaining
medical treatment for reasons related to childbirth for maternal or
infant health) is an impermissible basis for B visa issuance. For a B
nonimmigrant visa applicant who seeks to travel to the United States to
give birth, consular officers will evaluate whether the applicant has
credibly articulated a permissible purpose of travel on a B visa, or
whether the applicant's primary purpose of travel is birth tourism,
i.e., to obtain U.S. citizenship for the child.
The Department believes including the new provisions in Sec. 41.31
clarify the requirements for all B nonimmigrant applicants who seek
medical treatment in the United States, by including the factors that a
consular officer will weigh when determining whether the applicant
qualifies for a B nonimmigrant visa. These regulatory refinements
should be particularly helpful for applicants who are likely to give
birth in the United States, to help them determine whether they are
eligible to apply for a B nonimmigrant visa.
D. Presumption of Intent
Under this rule, if a consular officer has reason to believe a B
nonimmigrant visa applicant will give birth in the United States, the
applicant is presumed to be seeking a visa for the primary purpose of
obtaining U.S. citizenship for the child. To rebut this presumption,
the visa applicant must establish, to the satisfaction of a consular
officer, a legitimate primary purpose other than obtaining U.S.
citizenship for a child by giving birth in the United States. The fact
that an applicant has arranged an elective medical birth plan (as
opposed to a birth requiring specialized medical treatment) in the
United States is not, by itself, sufficient to establish that the
primary purpose is not obtaining U.S. citizenship for the child. Take,
for example, a visa applicant who identified several potential options
in multiple countries that would satisfy her medical birth plan. If
that visa applicant arranged a birth plan in the United States, instead
of in another country, because the child would acquire U.S.
citizenship, the presumption would likely not be rebutted, especially
if she had ties to a geographically closer country that would meet her
needs. But, for another example, consider an otherwise qualified B
nonimmigrant visa applicant from a part of Mexico lacking appropriate
medical facilities who arranged a birth plan in the United States based
on proximity to her residence in Mexico. In that case, the presumption
could be rebutted. A visa applicant who identified a birth plan in the
United States based on specialized medical care for a complicated
pregnancy could also potentially rebut the presumption. Medical care is
not the only way the presumption can be rebutted. For example, if a
consular officer determined an individual's primary purpose for travel
to the United States is to visit her dying mother, and that during the
visit she may give birth in the United States because her due date
overlapped with her mother's last expected months of life, she could
rebut the presumption. For another example, if a B nonimmigrant visa
applicant satisfied the consular officer that her child would acquire
U.S. citizenship if born outside the United States under section 301(g)
of the INA, 8 U.S.C. 1401(g), based on the visa applicant's husband's
U.S. citizenship and prior physical presence in the United States, the
visa applicant would rebut the presumption that her primary purpose was
to obtain U.S. citizenship for the child.
III. Regulatory Findings
A. Administrative Procedure Act
This rule is exempt from notice and comment under the foreign
affairs exemption of the Administrative Procedure Act (APA), 5 U.S.C.
553(a).
Opening this pronouncement of foreign policy to public comment,
including comment from foreign government entities themselves, and
requiring the Department to respond publicly to pointed questions
regarding foreign policy decisions would have definitely undesirable
international consequences. See Yassini v. Crosland, 618 F.2d 1356, n.4
(9th Cir. 1980). The Department recognizes specifically that foreign
governments or parts thereof may have interests in this rule as a
matter of their foreign policy goals. The Department has concerns that
birth tourism, and the birth tourism industry, pose a significant
vulnerability for the security of the United States. Various public
sources have identified specific countries that are the primary sources
of birth tourists, some of which countries have very sensitive
relationships with the United States. Some governments may support
their citizens' desire to use U.S. temporary visitor visas as a
mechanism to obtain U.S. citizenship for their children. Foreign
governments or entities, including entities of concern to the United
States, may seek to benefit
[[Page 4224]]
directly or indirectly from birth tourism, including for purposes that
would threaten the security of the United States. As a DOJ
representative stated during hearings on the Administrative Procedure
Act, ``[a] requirement of public participation in . . . promulgation of
rules to govern our relationships with other nations . . . would
encourage public demonstrations by extremist factions which might
embarrass foreign officials and seriously prejudice our conduct of
foreign affairs.'' Administrative Procedure Act: Hearings on S.1663
Before the Subcomm. on Admin. Practice & Procedure of the S. Comm. on
the Judiciary, 88th Cong. at 363 (1964).
Recognizing that certain countries have been publicly identified as
being principal sources of foreign nationals pursuing birth tourism,
and certain of those countries raise particular national security
concerns, this rule clearly and directly impacts foreign affairs
functions of the United States and ``implicat[es] matters of diplomacy
directly.'' City of N.Y. v. Permanent Mission of India to the U.N., 618
F.3d 172, 202 (2d Cir. 2010). This regulatory change reflects changes
to U.S. foreign policy, specifically in the context of U.S. visas, that
significantly narrow the ability of foreign nationals residing abroad
to easily obtain U.S. citizenship for their children without complying
with any of the rigorous requirements for permanent residence or
naturalization. Publicly identifying birth tourism as a threat to the
security of the United States, in a context where specific countries
have been identified as the primary source of birth tourists,
inherently affects U.S. bilateral relations with those countries, and
signals a significant shift in U.S. policy towards those foreign
governments and their populations. This modification of U.S. visa
policy may also lead to reciprocal actions on the part of foreign
governments, including some countries in which there are a significant
number of U.S. citizens residing.
B. Regulatory Flexibility Act/Executive Order 13272 (Small Business)
Because this final rule is exempt from notice and comment
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory
flexibility analysis requirements set forth by the Regulatory
Flexibility Act (5 U.S.C. 603 and 604).
C. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may directly result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
tribal governments, in the aggregate, or by the private sector. This
rule governs B nonimmigrant visa classification and does not mandate
any direct expenditure by State, local, or tribal governments.
D. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this rule is not a major rule as defined by 5 U.S.C. 804(2), for
purposes of congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996.
E. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
The Office of Information and Regulatory Affairs (OIRA) has
determined that this rule is significant under Executive Order 12866,
though not economically significant. Thus, it has been reviewed by
OIRA. Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). The
Department has reviewed this rule to ensure consistency with those
requirements.
The Department has also considered this rule in light of Executive
Order 13563 and affirms that this regulation is consistent with the
guidance therein.
In crafting this rule, the Department considered alternate ways to
address the national security concerns associated with birth tourism.
The Department seeks to balance the United States' strong interest in
curtailing birth tourism, based on national security and law
enforcement concerns, with its commitment to facilitating legitimate
medical travel and other legitimate bases for issuing B nonimmigrant
visas.
The Department recognizes this rule may result in indirect costs to
state and local entities and the private sector associated with loss of
business from foreign national customers who seek to travel to the
United States for the primary purpose of obtaining United States
citizenship for a child by giving birth in the United States.
As detailed above, the rule aims to end a threat to national
security and to mitigate criminal activity associated with the birth
tourism industry. Birth tourism companies highlight the benefits of
eligibility and priority for jobs in U.S. government, public companies
and large corporations.
This rule represents the most narrowly tailored regulation to
mitigate the threat. The Department considered whether all B-1/B-2 visa
applicants, and applicants for visas in other nonimmigrant
classifications, might be denied, in accordance with the INA, in any
case where a consular officer reasonably expects the applicant will
give birth in the United States to a child who would become a U.S.
citizen solely because of the place of birth. The Department decided
not to adopt such an interpretation, instead limiting this policy to B-
1/B-2 nonimmigrant visa applicants and limiting it to applicants who
have a primary purpose of obtaining U.S. citizenship for a child
expected to be born in the United States. Notably, the B visa
classification constitutes the vast majority of nonimmigrant visa
applications and the one that is typically used for birth tourism.
With the understanding that some foreign nationals have
historically applied for and obtained B nonimmigrant visas for the
primary purpose of giving birth in the United States to obtain U.S.
citizenship for the child, the Department crafted this rule narrowly to
address core national security-related concerns.
F. Executive Orders 12372 and 13132 (Federalism)
The objective of E.O. 13132 is to guarantee the Constitution's
division of governmental responsibilities between the federal
government and the states. It furthers the policies of the Unfunded
Mandates Reform Act. This rule does not have federalism implications
within the meaning of E.O. 13132, because it does not impose any
substantial direct compliance costs on State, local, or tribal
governments or preempt State, local, or tribal law. Furthermore, this
rule does not involve grants, other forms of financial assistance, and
direct development that implicate concerns under E.O. 12372.
G. Executive Order 12988 (Civil Justice Reform)
The Department has reviewed the regulation in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize
[[Page 4225]]
litigation, establish clear legal standards, and reduce burden.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has determined that this rulemaking will not have a
substantial direct effect on one or more Indian tribes, will not impose
substantial direct compliance costs on Indian tribal governments, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, and will not pre-empt tribal law.
Accordingly, the requirements of Section 5 of Executive Order 13175 do
not apply to this rulemaking.
I. Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs)
This rule is not subject to the requirements of E.O. 13771 (82 FR
9339, February 3, 2017), because it is expected to be de minimis under
E.O. 13771.
J. Paperwork Reduction Act
This rule does not impose any new information collection
requirements under the provisions of the Paperwork Reduction Act, 44
U.S.C. Chapter 35. The Online Nonimmigrant Visa Application, DS-160,
already allows visa applicants to identify medical treatment as a
subset of B visa travel purpose. Consular officers would evaluate the
application using existing forms and would not need new approved
information collections.
List of Subjects in 22 CFR Part 41
Administrative practice and procedure, Foreign Relations, Visas,
Aliens, Foreign official, Employment, Students, Cultural Exchange
Programs.
Text of the Rule
Accordingly, for the reasons stated in the preamble, the Department
is amending 22 CFR part 41 as follows:
PART 41--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION
AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 41 is revised to read as follows:
Authority: 8 U.S.C. 1101; 1102; 1104; 1182; 1184; 1185 note
(section 7209 of Pub. L. 108-458, as amended by section 546 of Pub.
L. 109-295); 1323; 1361; 2651a.
0
2. In Sec. 41.31, revise paragraph (b)(2) to read as follows:
Sec. 41.31 Temporary visitors for business or pleasure.
(b) * * *
(2)(i) The term pleasure, as used in INA 101(a)(15)(B) for the
purpose 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 service nature, and does not include obtaining a
visa for the primary purpose of obtaining U.S. citizenship for a child
by giving birth in the United States.
(ii) Any visa applicant who seeks medical treatment in the United
States under this provision shall be denied a visa under INA section
214(b) 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, that a medical practitioner or
facility in the United States has agreed to provide treatment, and that
the applicant has reasonably estimated the duration of the visit and
all associated costs. The applicant also shall be denied a visa under
INA section 214(b) if unable to establish to the satisfaction of the
consular officer that he or she has the means derived from lawful
sources 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.
(iii) Any B nonimmigrant visa applicant who 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.
* * * * *
Carl C. Risch,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2020-01218 Filed 1-23-20; 8:45 am]
BILLING CODE 4710-06-P