New restrictions could make it more difficult for pregnant foreigners to get US visas

The Trump administration issued new visa guidelines Thursday that could make it more difficult for some pregnant women to visit the United States, a move that White House officials said is aimed at curbing "birth tourism."

White House officials offered no evidence or data to support assertions that "birth tourism" is a growing problem. And critics quickly denounced the policy change, saying it's tantamount to a "handmaid's test" and would pave the way for discrimination against female travelers. 

The new rules apply to foreign travelers applying for visas for business, pleasure, tourism and medical visits. 

Under the new guidelines, which take effect Friday, applicants deemed by consular officers to be coming to the U.S. primarily to give birth will be treated like foreigners coming for medical treatment – they must prove they have the money to pay for it, including transportation and living expenses.

Under the Constitution, anyone born in the United States is considered a citizen. Though the practice of traveling to the U.S. to give birth is not illegal, authorities have arrested operators of birth tourism agencies for visa fraud or tax evasion.

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The State Department noted that investigations of birth tourism found that operators often fabricated financial documents, used false information to lease apartments and charged individuals as much as $100,000 for the service. 

"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," the State Department said.

The White House said the new rule is necessary to protect "public safety, national security, and the integrity of our immigration system." The current system has "a glaring immigration loophole," the White House said, and birth tourism "threatens to overburden valuable hospital resources" and foster criminal activity.

But a State Department official, who briefed reporters on the condition of anonymity, could not cite any specific national security threat posed by children born in the U.S. as a result of "birth tourism."

The State Department does not have specific data on how many women come to the US annually to give birth, this official said, and has no estimate of how much such cases cost. He estimated there are “thousands” of such cases annually without offering any evidence. 

President Donald Trump has repeatedly complained about birth tourism and "anchor babies," arguing that foreign parents may use that connection to gain U.S. citizenship.

In 2018, Trump told Axios he would issue an executive order to end the right to citizenship for babies of noncitizens and unauthorized immigrants born on U.S. soil.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said.

Immigration advocates said the new rule is unnecessary and harmful.

“It is absurd that the Trump administration is turning embassy employees into reproductive policemen," said Kerri Talbot, director of federal advocacy with the Immigration Hub, an immigration rights group. "Women will have to conceal their pregnancies just to get a tourist visa to visit the United States.”

Talbot's group called it a "handmaid’s test" that will apply even if a woman or girl states affirmatively that she is not pregnant. Other groups said it could prevent foreigners from coming to the U.S. for life-saving medical treatment. 

Implementing the guidelines could be problematic. Under the rules consular officers will not be able to require female applicants to take pregnancy tests and they have been “directed not to ask all female applicants if they are pregnant or intend to become pregnant,” the State Department official told reporters.

Visa officers will use other ways to determine if a woman is planning to come to the U.S. to give birth to a child, such as self-reporting on a visa application, according to the State Department official. This official side-stepped questions about whether visa officers can use “visual cues” to determine if women might be traveling to the U.S. to give birth.

The issue would only be raised at the time of the application for the visa, which could be valid for 10 years.

Though the State Department said the rules were focused on organized birth tourism operators, it will be applied to individual women. And the policy raises questions about whether a woman could be turned away by border officers who suspected she might be pregnant just by looking at her.

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"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," the State Department said.

It said the rule "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 Center for Immigration Studies, a group that advocates for stricter immigration laws, estimated that in 2012, about 36,000 foreign-born women gave birth in the U.S and then left the country. 

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