The Trump Administration’s Travel Ban Against Women of Child-bearing Age
Without any new action by Congress, the Trump administration posted a new regulation, effective tomorrow, that bans women of child-bearing age from being issued a visitor visa simply because they could be pregnant. The bottom line: a vast group of women visitors to the U.S. could be barred simply because a consular officer thinks they are pregnant or could become pregnant. Unless they are able to overcome a new obstacle — proving to a consular officer that, just because they could be pregnant, they do not have the intention to obtain U.S. citizenship for their child by giving birth in the U.S. — millions of women could be denied access to America.
There were approximately 7 million visitor visas issued in 2018, so this rule could apply to millions of women from around the world seeking to visit our country, but not men. The first barrier to entry starts with being a woman. The second: a consular officer’s subjective guess about a women’s reproductive cycle. Third: the fact of a woman’s pregnancy or her ability to become pregnant — which is not, in fact, a bar to visiting the U.S. under the law passed by Congress.
This new rule would apply to a pregnant woman traveling with her family to Disneyland, a pregnant woman coming to the United States for a business meeting, and a pregnant woman who needs specialized medical care to save her baby’s life and her own during birth. Worse yet, the language of the new regulation is so overly-broad, it conceivably could bar any woman in her child-bearing years just because she could possibly become pregnant and have a baby while visiting the U.S. within the ten years that a visitor visa is typically valid for many foreign nationals.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “Don’t be fooled by the rhetoric of this administration. This new rule is nothing more than a new roadblock for women just because their bodies can become pregnant. This new rule very specifically states that just because a consular officer ‘has reason to believe’ a woman ‘will give birth during her stay in the United States,’ she is automatically presumed to be coming to the United States ‘for the primary purpose of obtaining U.S. citizenship for the child.’ Because the language of the new regulations is so overly-broad, it would not only cause a consular officer to ‘have reason to believe’ an eight-month pregnant woman ‘will give birth during her stay in the United States,’ it could also mean that a consular officer might have ‘reason to believe’ that a woman of any child-bearing age — approximately 30-40 years of her life — ‘will give birth during her stay in the United States.’ That is because a B visa could be granted, and often is granted, for up to 10 years. Even if a woman of child-bearing age is not pregnant on the day of her visa interview, she could conceivably become pregnant, travel to the U.S. while pregnant within the 10 years of her valid B visa, and give birth while in the U.S. during one of those visits. Therefore, a consular officer in any U.S. embassy or consulate could conceivably be banning a woman from the U.S. just because she could one day within the next 10 years be pregnant and give birth during a visit in the U.S. This new regulation is more than absurd and a clear attack on women and their bodies just because they can have babies.”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “The Trump administration has effectively placed a travel ban on women of child-bearing age. Under the false pretext of national security and crime prevention, the administration has concocted a discriminatory rule which empowers overseas visa officers to deny a visitor visa to any woman the officer ‘has reason to believe’ will give birth in the U.S. Translated into plain English that means a consular officer can deny a visa to any woman of child-bearing age. So, with the stroke of a pen Trump has now given low level embassy bureaucrats effective control over women’s bodies. Clearly, any woman seeking to visit the U.S. will be placed in the humiliating position of having to convince a U.S. consular official that she’s not pregnant or going to get pregnant before she travels to the U.S. or while she’s visiting. This indefensible regulation will potentially impact millions of women who seek to travel to the U.S. for business or pleasure. Of course, like many other Trump immigration schemes, the impact of this regulation will be largely on women of color. The rule does not apply to citizens of most Western and industrialized nations who are eligible to travel to the U.S. without a visitor visa.”
The new regulation is deceptively short and simple:
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.
But what it means is much more insidious.
The regulation gives consular officers vast new power to establish a “reason to believe” that a woman seeking a visitor visa “will give birth during her stay in the United States.” Because there is no limit in the regulation as to what is considered a “reason to believe,” there are so many circumstances that could give rise to that “reason to believe.” Could it be that she appears pregnant during a visa interview? How would a consular officer determine that? Could it even be that any woman of child-bearing age could reasonably become pregnant and give birth in the United States during the 10 years that a typical tourist visa is valid?
As soon as that “reason to believe” is triggered, the presumption is triggered and women are then faced with the roadblock of proving that they do not have the “primary purpose of obtaining U.S. citizenship for the child.” But there is little in this regulation that explains how a woman can overcome this burden.
Moreover, this regulation is squarely aimed at women, banning women unless they overcome the presumption. But what about men who may be coming to support or accompany a woman for the birth of a child? Under the new regulation, there is no additional burden for men, just women, yet both could share the same purpose for the visit that this regulation claims to address.
Understanding the Visa Process
To understand the practical impact of this regulation it is necessary to understand how visa issuance works. After completing an online application the visa applicant is usually briefly interviewed while standing before a row of windows by a consular officer who appears behind a glass partition. During the interview, which is usually no more than a few minutes, the consular officer generally assesses the purpose of the trip to the U.S. and the applicant’s ties to her home country in an effort to determine whether or not she will return home after her temporary trip to the U.S. This regulation now permits the consular officer to legally deny a visa to any woman whom he “has reason to believe” will give birth during her stay in the U.S. because she will be presumed to be traveling to the U.S. to obtain U.S. citizenship for the child. Thus, a business executive, who is pregnant, could be denied a visa for a business meeting in the U.S., even though she has a close economic and family ties in her home country.
Furthermore, depending on the applicant’s country, visitor visas can be issued for up to 10 years. In evaluating visitor visa eligibility under this new regulation, a consular officer is now permitted to estimate whether or not there is reason to believe a woman may at some point during the validity period of a visa — up to 10 years — give birth in the U.S. If so, in addition to existing regulations that apply to both men and women seeking visitor visas, she must overcome the new presumption that she does not have the primary intention of obtaining U.S. citizenship for a child by giving birth in the U.S. to a child she may potentially have at some point in the next 10 years.
The State Department regulation specifically states that it “does not change Department of Homeland Security regulations regarding the admissibility of aliens, including Visa Waiver Program travelers.” The Visa Waiver Program allows foreign nationals to travel to the United States without first applying for a visitor visa and only foreign nationals from certain countries may use the VWP program, mainly Western and industrialized nations. Therefore, this new regulation does not apply to women who come from primarily Western and industrialized nations, but does apply to all other nations. The impact, therefore, is likely to fall squarely on women of color seeking to visit the U.S. for business or pleasure, requiring them to overcome the seemingly insurmountable burden of showing they do not intend to give birth in the U.S. for the purpose of obtaining U.S. citizenship for their child. Women from industrialized countries face no such obstacles if they travel on the Visa Waiver Program.