NOI 43: Why is there a New Birth Tourism Regulation?

The Trump administration has issued a new regulation that impacts the ability of women to enter the U.S. and receive needed medical care, in the name of preventing families from coming to the U.S. for the primary purpose of having a child born in the U.S.

Jacob Tingen: I think we’re on. Welcome again to Nation of Immigrants. Today we’re going to talk about a phenomenon called birth tourism. It’s this concept of people coming to have a baby here in the United States. There are a lot of legitimate reasons why someone might want to have their child born in the US, let’s say for example, they don’t have access to appropriate medical care or healthcare in their native country. And so yeah, that’s the principle reason, but there’s this assumption coming out in a new rule, a new regulation from the Trump Administration, that people pretty much only come to the US to have babies so that their child will have US citizenship, which is a benefit they would receive. So that’s what we’re talking about today. And a new regulation on the topic after the intro.

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President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law with your host, Jacob Tingen.

Jacob Tingen: Okay. So there’ve been some rumblings about this topic for a while now and it wasn’t entirely clear to me whether this rule was actually going to come out or not, but here it is and I’ve been reading some articles and also seen a draft of the rule. And so what’s interesting is the potential for discrimination against women. It just blows my mind about how they’re going to apply this policy fairly or how you could even presume to apply this policy fairly. What are those conversations going to look like? Are you literally going to stop women in the airport and be like, “Ma’am, step aside, you look totally pregnant.” I mean, I don’t see how this works. And the policy document focuses on the issuance of the B Visa. And yet, people, agents, custom and border patrol officials have authority to prevent people from coming into the country when they come in on their visa.

Jacob Tingen: So if a woman comes in and is even just merely of childbearing age and they just feel suspicious, they might turn that person away. And so this is the negative impact potentially of what can happen and that’s cause for concern. So to back this up and explain from the beginning, let’s go to [inaudible 00:02:36]. So there are B Visas, the United States issues primarily two different kinds of visas. There’s immigrant visas and non-immigrant visas. So an immigrant visa, it’s purpose is to, I’m coming to immigrate to the United States, I’m coming and I’m going to stay. That’s an immigrant visa. So somebody has some kind of relationship with an employer or a family member or they’ve been petitioned and they’ve been brought to the US. They are entering the US for the purpose of receiving a green card, that’s an immigrant visa.

Jacob Tingen: Then we have a different kind of visa, which is I’m going to come and I’m going to be in the US temporarily. Maybe it’s even just to work temporarily, but maybe it’s to visit or to study. So a visitor’s visa is a non-immigrant visa and it’s one of the most common types of non-immigrant visas that’s issued throughout the world. And so if I’m in a foreign country and I want to visit the US, I go to the local US embassy or consulate and I apply for permission to visit. Now, if you’re a member of a number of countries that are generally westernized, perhaps you don’t need a visa to come and visit. You get a what’s known as a visa waiver. And so certain countries participate in the visa waiver program and those countries, if you happen to be lucky enough to be from one of those countries, you don’t need a B Visa to enter the United States. You can just come because of the visa waiver. But for everybody else, you have to apply affirmatively for a B Visa and you have to prove to the consular official that when you come to the US, you’re only going to come with non-immigrant intent.

Jacob Tingen: And so that’s kind of what this all comes down to is, is the intent or the reason or the purpose behind the visit to the US. One of the ways that a visitor’s visa could be abused as if someone is coming to stay forever. It’s a non-immigrant visa, not an immigrant visa and so that causes an issue, right? If you’re going to come and stay forever, that’s not the purpose of your visa. That’s not why you said you were coming. And so for that reason, they might deny issuing that visa to you. But this new regulation kind of says that we’ll, we’re also not going to let you come just to have a baby because if the primary purpose of your visit is to have a baby in the United States, that baby will receive, by birth in the United States, citizenship in this country.

Jacob Tingen: And so they view this as a loophole that needs to be closed, at least that’s the justification that’s given. But what’s interesting is, again, how are you going to apply this appropriately across the board? Now, currently before this regulation came out, people couldn’t just come and have a baby. If they were going to come because they needed certain medical treatment, including having a baby, they’d still need to show documentation that they could pay for the procedure, what procedure it was they were going to get, so this was already kind of on the books. Even so as it was, people came and it was a known phenomenon that people would come and have their child born in the US because of access to better healthcare options here in the US when it comes to having a baby.

Jacob Tingen: So it’s not like this is something that’s been in the shadows of immigration or that people weren’t aware of. This is something that’s been happening for a long time now, but now it’s taking it too far. Basically, it’s creating a rebuttable presumption, which means we’re going to assume that if you’re a woman and you might become pregnant, that you’re coming for the purpose of having a baby, period. That’s what it means. They’re going to presume that all women who look like they might be pregnant or look like they might become pregnant, can’t get a visa. So they’re going to start with no, and that’s fascinating. Now I read the policy, I read the draft of the new rule and all of its reasonings and things, and it carves out plenty of exceptions and says, Hey, if you, if you need it for a specific medical reason or those kinds of things, things that we already kind of understood and that already formed the prior policy generally.

Jacob Tingen: But it’s the language of the regulation kind of says, now everybody is assumed at fault. And there’s a quote here that I really liked that I felt sums it up. There’s a lot of comments about how it regulates women’s bodies and how those kinds of issues aren’t appropriate. But there was a quote here by Doug Rand who was an Obama Admin official who worked in immigration issues. He said, this policy is designed to cast basically all women of childbearing age as presumptive lawbreakers, which is typical of this Administration. Which it is, like why would we would just assume that all women intend to break our immigration ideals, but that is the current assumption now that’s enshrined in this regulation. And so I feel like that’s just wrong.

Jacob Tingen: So that’s birth tourism in a nutshell. That’s kind of what’s happening. But what’s interesting is, as is common with a lot of these new regulations and policies, there could be legal challenges to the policy based on us immigration law. One commenter says, “There’s no statutory basis to deny entry to a woman because of the state of her reproductive cycle.” So I would expect some kind of legal challenge to arise here, but you’d have to have somebody that has standing. So it’s going to be interesting to see how this policy is implemented. But I do think that it will inevitably lead to either unfair or discriminatory implementation. I find it hard to imagine how this doesn’t lead to some really inappropriate applications to people’s circumstances, because again, it is legitimate to want to come to our country and enjoy appropriate medical care when you’re going through something like having a baby. So that’s what this attacks.

Jacob Tingen: So thanks again for listening to Nation of Immigrants. I hope you enjoyed this episode. You can always follow along at You can, if you need immigration help or other legal assistance, you can reach out to us at our firm at But then you can also follow the podcast on iTunes, YouTube, Facebook, Twitter, and don’t forget to also support the podcast. Every money that you submit or contribute to the podcast will go to help defray the cost of legal services. And so, thanks for listening and we will see you next time.

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