Well, that didn’t take long at all. It was only a few days ago when we learned that the Trump administration was considering imposing restrictions on birth tourism, the practice of pregnant women with no attachments or allegiance to the United States coming here to give birth so their child can have American citizenship. At the time, I raised a number of questions about how that might work and what challenges such a rule might face. I also assumed that it would take some time for the White House to hammer all of this out.
It just goes to show how wrong you can be. The new rules are being rolled out today and are expected to go into effect tomorrow. Unfortunately, most of the questions I posed still don’t appear to be answered.
The Trump administration is coming out with new visa restrictions aimed at restricting “birth tourism,” in which women travel to the U.S. to give birth so their children can have a coveted U.S. passport.
The State Department planned to publicize the rules Thursday, according to two officials with knowledge of the plans who spoke to The Associated Press on condition of anonymity. The rules would make it more difficult for pregnant women to travel on tourist visas. In one draft of the regulations, they would have to clear an additional hurdle before obtaining the visas — convincing a consular officer that they have another legitimate reason to come to the U.S.
If the State Department releases the full text of the rules changes later today we’ll update this article. For the time being, however, the leaked details are a bit thin on specifics.
What we’ve learned thus far suggests that B-1 or B-2 visa application interviews may soon include questions about whether female applicants are pregnant. Consular officers don’t currently ask that question and it’s not clear if such an inquiry would be challenged under personal/medical privacy claims. Further, what if the woman lies about being pregnant and just claims to be a bit overweight? Immigration officials are going to get themselves into sticky situations if they have to make a judgment call about a woman’s maternity status just by looking at her.
Of course, we’re not actually required to issue a visa to anyone, but it’s expected that the process will be administered in a fair and equal fashion. If we just start denying visas to every woman who looks like she might be carrying a child, the end goal may be accomplished, but the complaints (and likely lawsuits) will follow quickly.
Perhaps we’re approaching this from the wrong direction. Stopping pregnant foreign women from traveling to the United States to give birth for these purposes, in addition to being difficult and complicated, is predicated on the understanding that if she succeeds and delivers her baby here, the child is automatically a citizen. But we already make exceptions to the federal law covering these situations. For example, children born to diplomats working in the United States are not granted automatic citizenship.
The reason for that is found in Title 8, Section 1401. That code states that persons “born in the United States, and subject to the jurisdiction thereof; shall be nationals and citizens of the United States at birth.” Foreign diplomats aren’t considered to be “subject to the jurisdiction” of the United States.
So what if we attempt to expand the interpretation of that phrase to include tourists and business travelers? Except in cases of serious crimes, we generally just send such travelers back to their own countries if they get into trouble. Failing that, we could amend the law to include a phrase about having allegiance to the United States and no other country or something like that. Of course, we’d have to see the GOP take back the House majority and keep the White House to do that and it would have to be able to survive a constitutional court challenge. But it’s worth thinking about.
In any event, I don’t expect to see this resolved any time soon. The moment the new rules go into effect tomorrow and the first woman is denied a business or tourist visa, they will be heading to court and asking for an injunction putting the new rules on hold. And assuming they shop around for the right judge, they’ll probably get one.