Immigration Articles

Pregnant Women and Visa Applications 04/02/2020

I am pregnant and I want a visitor visa now!

April 2,2020

By James T. Daly

Evan is a citizen of India. She is 7 months pregnant and it shows. Evan has been invited to attend her best friend’s wedding in the US. In order to attend the wedding, Evan will need to apply for a B2 visitor visa. Can the officer deny Evan’s visa application because the officer thinks that Evan just wants to enter the US so she can give birth, thereby conferring US citizenship on her child (commonly known as “birth tourism”)? Yes, the officer can deny the application.

On January 23, 2020, the US State Department addressed this issue and amended the B2 visa rules to establish a rebuttable presumption that a B2 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. The rule requires consular officers to deny B2 visa applications to applicants who do not overcome the presumption.

The new rule retains the general rule that pleasure, 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 new rule also states that travel for the primary purpose of obtaining United States citizenship for a child by giving birth in the United States is not a legitimate visitor activity.

According to the US State Department, 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.”

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. The US State Department’s 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.

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 child to the benefits of US citizenship. 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. The visa officer knows this.

So what should Evan do at the visa interview? She should bring evidence with her to the interview confirming that the primary purpose of her travel is to attend the wedding and that she will return home after the wedding is over. Evidence could include:

1. Copy of the wedding announcement;
2. All correspondence about the wedding including any scheduled parties, rehearsals, hotel recommendations/reservations, etc.;
3. Employment verification letter from Evan’s employer confirming that she has time off to attend the wedding;
4. Copies of pay stubs and tax returns;
5. Copy of Evan’s lease agreement;
6. If delivery arrangements have been made at a hospital in India, a copy of the agreement.

Under this new rule, if a pregnant woman cannot prove that having birth in the US is not the primary reason for travel, the visa application will be denied.

Pregnant Women and Visa Applications 04/02/2020

I am pregnant and I want a visitor visa now!

April 2,2020

By James T. Daly

Evan is a citizen of India. She is 7 months pregnant and it shows. Evan has been invited to attend her best friend’s wedding in the US. In order to attend the wedding, Evan will need to apply for a B2 visitor visa. Can the officer deny Evan’s visa application because the officer thinks that Evan just wants to enter the US so she can give birth, thereby conferring US citizenship on her child (commonly known as “birth tourism”)? Yes, the officer can deny the application.

On January 23, 2020, the US State Department addressed this issue and amended the B2 visa rules to establish a rebuttable presumption that a B2 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. The rule requires consular officers to deny B2 visa applications to applicants who do not overcome the presumption.

The new rule retains the general rule that pleasure, 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 new rule also states that travel for the primary purpose of obtaining United States citizenship for a child by giving birth in the United States is not a legitimate visitor activity.

According to the US State Department, 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.”

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. The US State Department’s 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.

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 child to the benefits of US citizenship. 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. The visa officer knows this.

So what should Evan do at the visa interview? She should bring evidence with her to the interview confirming that the primary purpose of her travel is to attend the wedding and that she will return home after the wedding is over. Evidence could include:

1. Copy of the wedding announcement;
2. All correspondence about the wedding including any scheduled parties, rehearsals, hotel recommendations/reservations, etc.;
3. Employment verification letter from Evan’s employer confirming that she has time off to attend the wedding;
4. Copies of pay stubs and tax returns;
5. Copy of Evan’s lease agreement;
6. If delivery arrangements have been made at a hospital in India, a copy of the agreement.

Under this new rule, if a pregnant woman cannot prove that having birth in the US is not the primary reason for travel, the visa application will be denied.

F1/M1 students and the online classes ban is rescinded!!

The Administration agreed to rescind a directive that would have barred F1 and M1 international college students from the U.S. if their colleges offered classes entirely online in the fall semester.

F-1 students pursue academic coursework and M-1 students pursue vocational coursework while studying in the United States.

The Administration’s initial position was that nonimmigrant students within the United States were not permitted to take a full course of study through online classes. If students found themselves in this situation, they were required to leave the country or take alternative steps to maintain their nonimmigrant status such as a reduced course load or appropriate medical leave.

Harvard University and the Massachusetts Institute of Technology sued the U.S. government in federal court two days later calling the directive "arbitrary and capricious" and seeking to have it reversed and declared unlawful. US District Court Judge Allison Burroughs stated announced that the parties came to an agreement and that the government will rescind this policy.

The administration took an unfair position which was to ban foreign students from taking online courses during the Pandemic. It is great news that the policy was rescinded.