Visas: Temporary Visitors for Business or Pleasure, 4219-4225 [2020-01218]

Download as PDF Federal Register / Vol. 85, No. 16 / Friday, January 24, 2020 / Rules and Regulations brexanolone must be in compliance with 21 U.S.C. 952, 953, 957, and 958, and in accordance with 21 CFR part 1312. 10. Liability. Any activity involving brexanolone not authorized by, or in violation of, the CSA or its implementing regulations, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions. Regulatory Analyses Administrative Procedure Act This final rule, without change, affirms the amendment made by the interim final rule that is already in effect. Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553) generally requires notice and comment for rulemakings. However, 21 U.S.C. 811 provides that in cases where a new drug is (1) approved by the HHS and (2) HHS recommends control in CSA schedule II–V, the DEA shall issue an interim final rule scheduling the drug within 90 days. Additionally, the law specifies that the rulemaking shall become immediately effective as an interim final rule without requiring the DEA to demonstrate good cause. The DEA issued an interim final rule on June 17, 2019 and solicited public comments on that rule. Section 811 further states that after giving interested persons the opportunity to comment and to request a hearing, ‘‘the Attorney General shall issue a final rule in accordance with the scheduling criteria of subsections (b), (c), and (d) of this section and section 812 (b) of’’ the CSA. 21 U.S.C. 811(j)(3). The DEA is now responding to the comments submitted by the public and issuing the final rule, in conformity with the APA and the procedure required by 21 U.S.C. 811. lotter on DSKBCFDHB2PROD with RULES Executive Orders 12866, 13563, and 13771, Regulatory Planning and Review, Improving Regulation and Regulatory Review, and Reducing Regulation and Controlling Regulatory Costs In accordance with 21 U.S.C. 811(a) and (j), this scheduling action is subject to formal rulemaking procedures performed ‘‘on the record after opportunity for a hearing,’’ which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the procedures and criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563. VerDate Sep<11>2014 15:58 Jan 23, 2020 Jkt 250001 This final rule is not an Executive Order 13771 regulatory action pursuant to Executive Order 12866 and OMB guidance.1 Executive Order 12988, Civil Justice Reform This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction. Executive Order 13132, Federalism This final rulemaking does not have federalism implications warranting the application of Executive Order 13132. The final rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments This final rule does not have tribal implications warranting the application of Executive Order 13175. It does not have substantial direct effects on one or more Indian tribes, 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. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612) applies to rules that are subject to notice and comment under section 553(b) of the APA. Under 21 U.S.C. 811(j), the DEA was not required to publish a general notice of proposed rulemaking prior to this final rule. Consequently, the RFA does not apply. Unfunded Mandates Reform Act of 1995 In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501 et seq., the DEA has determined that this action would not result in any Federal mandate that may result ‘‘in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted for inflation) in any one year.’’ Therefore, neither a Small Government Agency 4219 Plan nor any other action is required under UMRA of 1995. Paperwork Reduction Act of 1995 This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501–3521. This action would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Congressional Review Act This final rule is not a major rule as defined by the Congressional Review Act (CRA), 5 U.S.C. 804. This rule will not result in: An annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign based companies in domestic and export markets. However, pursuant to the CRA, the DEA is submitting a copy of this final rule to both Houses of Congress and to the Comptroller General. List of Subjects in 21 CFR Part 1308 Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements. PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES Accordingly, the interim final rule amending 21 CFR part 1308, which published on June 17, 2019 (84 FR 27938), is adopted as a final rule without change. ■ Dated: January 3, 2020. Uttam Dhillon, Acting Administrator. [FR Doc. 2020–00669 Filed 1–23–20; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF STATE 22 CFR Part 41 [Public Notice: 10930] RIN 1400–AE96 1 Office of Mgmt. & Budget, Exec. Office of The President, Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 Titled ‘‘Reducing Regulation and Controlling Regulatory Costs’’ (Feb. 2, 2017). PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 Visas: Temporary Visitors for Business or Pleasure AGENCY: E:\FR\FM\24JAR1.SGM Department of State. 24JAR1 4220 ACTION: Federal Register / Vol. 85, No. 16 / Friday, January 24, 2020 / Rules and Regulations Final rule. 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: lotter on DSKBCFDHB2PROD with RULES SUMMARY: 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 VerDate Sep<11>2014 15:58 Jan 23, 2020 Jkt 250001 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 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 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 E:\FR\FM\24JAR1.SGM 24JAR1 Federal Register / Vol. 85, No. 16 / Friday, January 24, 2020 / Rules and Regulations U.S. Constitution or INA 301, 8 U.S.C. 1401. lotter on DSKBCFDHB2PROD with RULES 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 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). VerDate Sep<11>2014 15:58 Jan 23, 2020 Jkt 250001 officer’s evaluation of the credibility of the applicant. 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 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 4221 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. E:\FR\FM\24JAR1.SGM 24JAR1 lotter on DSKBCFDHB2PROD with RULES 4222 Federal Register / Vol. 85, No. 16 / Friday, January 24, 2020 / Rules and Regulations 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 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 securityrelated 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 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. VerDate Sep<11>2014 15:58 Jan 23, 2020 Jkt 250001 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 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 4 https://www.justice.gov/usao-cdca/pr/federalprosecutors-unseal-indictments-naming-19-peoplelinked-chinese-birth-tourism. 5 https://www.justice.gov/usao-cdca/pr/federalprosecutors-unseal-indictments-naming-19-peoplelinked-chinese-birth-tourism. 6 United States v. Li, 19–cr–00016 (S.D. Cal., filed Jan 30, 2019). See also https://www.justice.gov/ PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 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. 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 usao-cdca/pr/chinese-national-pleads-guiltyrunning-birth-tourism-scheme-helped-aliens-givebirth-us. 7 https://www.justice.gov/usao-cdca/pr/federalprosecutors-unseal-indictments-naming-19-peoplelinked-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/federalprosecutors-unseal-indictments-naming-19-peoplelinked-chinese-birth-tourism. E:\FR\FM\24JAR1.SGM 24JAR1 Federal Register / Vol. 85, No. 16 / Friday, January 24, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES 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. 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. The two new sentences in § 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). The Department is adding this provision to § 41.31(b) now because 11 United States v. Li, 19–cr–00016 (S.D. Cal., filed Jan 30, 2019). 12 See 9 FAM 402.2–4(A)(2). 13 Id. VerDate Sep<11>2014 15:58 Jan 23, 2020 Jkt 250001 4223 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 § 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. 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. 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 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 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 III. Regulatory Findings E:\FR\FM\24JAR1.SGM 24JAR1 4224 Federal Register / Vol. 85, No. 16 / Friday, January 24, 2020 / Rules and Regulations 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. lotter on DSKBCFDHB2PROD with RULES 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 VerDate Sep<11>2014 15:58 Jan 23, 2020 Jkt 250001 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 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 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 E:\FR\FM\24JAR1.SGM 24JAR1 Federal Register / Vol. 85, No. 16 / Friday, January 24, 2020 / Rules and Regulations 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. § 41.31 Temporary visitors for business or pleasure. ACTION: (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 prearranged 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. * * * * * SUMMARY: Carl C. Risch, Assistant Secretary for Consular Affairs, Department of State. [FR Doc. 2020–01218 Filed 1–23–20; 8:45 am] Text of the Rule BILLING CODE 4710–06–P 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 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 51 [Docket No: FR–6054–F–02] RIN 2506–AC45 1. The authority citation for part 41 is revised to read as follows: lotter on DSKBCFDHB2PROD with RULES ■ 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. 2. In § 41.31, revise paragraph (b)(2) to read as follows: ■ VerDate Sep<11>2014 15:58 Jan 23, 2020 Jkt 250001 Conforming the Acceptable Separation Distance (ASD) Standards for Residential Propane Tanks to Industry Standards Office of the Assistant Secretary for Community Planning and Development, HUD. AGENCY: PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 4225 Final rule. This final rule reduces regulatory and cost burden on communities that may be restricted in their ability to site HUD-assisted projects, by allowing HUD-assisted projects near stationary aboveground propane storage tanks with a capacity of 1,000 gallons or less if the storage tanks comply with National Fire Protection Association (NFPA) 58 (2017). Based on consideration of public comments, HUD is adopting this 1,000-gallon limit in lieu of the 250-gallon limit contemplated in the proposed rule. This final rule incorporates by reference NFPA 58 (2017), a voluntary consensus standard for public safety that establishes safety standards used by the propane industry and operators regarding storage, handling, transportation, and use of propane. DATES: Effective Date: February 24, 2020. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of February 24, 2020. FOR FURTHER INFORMATION CONTACT: Danielle Schopp, Director, Office of Environment and Energy, Office of Community Planning and Development, U.S. Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; telephone number 202–402–5226 (this is not a tollfree number). Persons with hearing or speech impairments may access this number through TTY by calling the Federal Relay Service at 800–877–8339 (this is a toll-free number). SUPPLEMENTARY INFORMATION: I. Background On December 10, 2018, HUD published a rule in the Federal Register, at 83 FR 63457, which proposed expanding HUD’s ability to approve assistance for projects sited near propane storage tanks (otherwise known as ‘‘Liquified Petroleum Gas containers’’ or ‘‘LPG containers’’). The rule proposed amending HUD regulations at 24 CFR part 51, subpart C, which establish the Acceptable Separation Distance (ASD) that must be kept between HUD-assisted projects and containers of hazardous substances, by creating an exception for aboveground propane storage tanks of a capacity of 250 gallons or less if the storage tank complies with NFPA 58 (2017), a voluntary consensus standard that establishes safety standards used by the propane industry and operators regarding storage, handling, transportation, and use of propane, as well as all underground storage tanks. HUD’s proposed rule was intended to modernize outdated codified safety E:\FR\FM\24JAR1.SGM 24JAR1

Agencies

[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.
---------------------------------------------------------------------------

    \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 fiancée); 
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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \12\ See 9 FAM 402.2-4(A)(2).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \13\ Id.
---------------------------------------------------------------------------

    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