If You're Vacationing in Us and Have a Baby
This problem arises especially when the U.South. Consulate or U.S. Customs & Border Protection determines you misrepresented the purpose of your visit when you practical for the B-1/B-2 visitor visa and used information technology or the Visa Waiver Program (VWP) to enter the United States.
Section 214(b) of the Immigration & Nationality Act presumes that almost nonimmigrant visa applicants intend to immigrate permanently to the United States. Only sure categories, such as the H-1B (professional worker) and L-1A/50-1B (intracompany transferee), allow dual intent (i.e. intent to immigrate in the time to come while maintaining temporary status in the present). Otherwise, nonimmigrant visa applicants must show they have no intent to immigrate and simply seek a temporary stay in the U.South.
When you engage in any of the following 3 activities, you could have issues getting a new visa or gaining re-entry to the U.Southward. for a temporary stay, although each one, by itself, does not violate U.Southward. immigration law or brand you lot inadmissible to the United States:
ane. Traveling to the United states to have a baby ("Nascence Tourism")
Traveling to the Us on a visitor visa for the purpose of giving nascence to a child is ordinarily known every bit Birth Tourism. Under the 14th Amendment of the U.Due south. Constitution, nascency in the U.s.a. gives the child automatic citizenship with all its rights and privileges.
Furthermore, birth citizenship provides the foreign national parent with potential immigration relief. For example, upon turning age 21, a U.S. citizen son or girl may file an immigrant petition for a parent in the immediate relatives category, which has no numerical limits on immigrant visas available. A parent who overstays in the United states of america and is placed in removal proceedings may qualify for Counterfoil of Removal and Adjustment of Status (to permanent residence) if she has been continuously present in the United States for at least x years, has non been convicted of sure offenses, has adept moral character, and her removal would outcome in exceptional and extremely unusual hardship to her U.S. citizen child.
There is no specific law, regulation or policy prohibiting birth tourism per se or preventing a pregnant adult female from inbound the United States. Nonetheless, U.Due south. consular officers and customs officers often view information technology as a misuse of the visitor visa condition and a gaming of the immigration system to give the child automatic citizenship.
[UPDATE: On January 24, 2020, U.S. federal regulations were updated to restrict travel on a B visitor visa primarily to give birth in the United States. The updated U.S. Department of State Strange Affairs Manual states, "5isiting temporarily for pleasure does not include travel for the principal purpose of obtaining U.Due south. citizenship for a child by giving birth in the United States. Whatsoever B nonimmigrant visa applicant who y'all take reason to believe will give birth during their stay in the United States is presumed to be traveling for the primary purpose of obtaining U.Southward. citizenship for the child. The bidder tin can overcome this presumption if you find that the principal purpose of travel is non obtaining U.S. citizenship for a child."
Examples are: (1) bidder's primary purpose for travel is to visit a dying family member, and during the visit the applicant may give nascence in the The states because the pregnancy due appointment overlaps with the family member's concluding expected months of life; (2) medically complicated pregnancy and arrangement for specialized medical care in the United States, because such specialized care is not available in or near the country where the applicant resides.]
If the officer sees you are pregnant at the time of applying for a tourist visa or requesting admission as a company, he may pass up the visa or deny your entry. This is why nativity tourists who hail from various countries such as Mainland china, Taiwan, South Korea, Russia, Brazil and Mexico, typically come to the Usa when their pregnancy is not so obvious.
Fifty-fifty if you succeed in gaining a visitor visa or inbound the United States as a visitor to give birth, yous might nevertheless encounter issues in the future when you apply for a new visa or access equally a nonimmigrant.
The U.S. Consulate has sole discretion to make a factual determination on whether you take strong ties to your country to overcome the presumption of immigrant intent nether INA 214(b).
A consular officer may deny your asking for a B-1/B-2 visitor visa or other non-dual intent visa under INA 214(b) by finding you lot intend to immigrate due to your having a U.S. citizen son or daughter, or based on mere suspicion that you lot volition use a new visa to requite nascence in the U.S. again. Some consular officers likewise consider giving nativity every bit inconsistent with the true purpose of a B-1/B-2 visit, which is primarily for business travel and recreation.
A not-resident parent who travels with a U.South. denizen child may face tougher scrutiny at the U.S. port of entry. A customs officeholder who discovers you lot had a child during a prior visit in the U.South. may deny your asking for admission on a temporary visa and even issue an expedited removal gild under INA 212(a)(seven)(lack of proper visa or other travel documents), which carries a five-yr bar. To be excused from this five-year bar to existence admitted to the United States, yous need an canonical Form I-212, Application for Permission to Reapply for Admission into the U.s. After Displacement or Removal.
In some cases, a consular officer or customs officer may effect a more serious charge under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of fabric fact to gain a visa or entry to the United states), which is a lifetime bar. When such an inadmissibility finding is fabricated by the U.Due south. Consulate or CBP, you may appeal directly to the bureau to reconsider and rescind the decision on the basis that giving birth in the U.S., by itself, does non make you inadmissible. But equally long equally the section 212(a)(6)(C)(i) bar holds, you will need a 212(d)(iii) nonimmigrant waiver or a Form I-601/212(i) immigrant waiver to be admitted to the United States.
Because a visitor visa may be used for medical handling, your due southhowing that giving nativity in the United States served or serves a wellness purpose an be a positive factor. An example is if the pregnancy comes with loftier risks or serious complications. When you are upfront and declare y'all are coming to the U.S. to give nativity, the officer decides, on a case-by-case basis, whether to grant the visa or admission based on proof of stiff ties to your land, nonimmigrant intent, sufficient funds to cover all medical costs, and legitimate purpose of travel.
Paying all medical bills or having your own medical insurance to cover the expenses related to childbirth tin help prevent a visa refusal or denial of admission. Ultimately, nonetheless, the consular officeholder or customs officer has discretion to make up one's mind whether having a baby in the U.S. is consistent with the purpose of a visitor visa, regardless of whether y'all encompass the medical expenses and do non become a public charge by receiving regime assistance to pay the medical bills.
2. Making frequent, extended visits to the United states
U.S. immigration police allows visitor visa holders to conduct legitimate B-1/B-2 activities for a temporary period, minimum of six months. Using ESTA (Electronic System for Travel Authorization) if yous are an eligible applicant from a Visa Waiver Program-eligible country allows yous visit the U.s. for 90 days or less.
The U.Due south. consular officers and customs officers expect you to use the company visa or ESTA/Visa Waiver program to appoint in tourism and recreational activities, visit family and friends, and conduct other temporary visit activities. Remaining in the U.S. for the maximum or close to the maximum fourth dimension allowed and then speedily returning to the U.S. (e.m. within a month) for another extended stay do not reflect the travel patterns of a real visitor.
Frequent, extended trips to the Usa will likely cause the customs officer to suspect you are really living, studying or working in the land without potency. You may end upward with a shorter authorized stay or a alert from the officer. Y'all could besides exist placed in secondary inspection and questioned extensively and so the officer can find legitimate grounds to deny your entry.
You may exist asked to withdraw your application for admission or be issued an expedited removal order due to lack of proper travel documents and fifty-fifty due to willful misrepresentation to enter the U.S. A visa revocation will likely affect your eligibility for a new visa. An inadmissibility finding volition stop you lot from using the ESTA/Visa Waiver program.
There is no minimum time you lot must stay in your country earlier returning to the U.S. for another visit. But if you lot are constantly traveling to the U.S. and staying for long periods, yous tin expect to run into bug later, even if you were previously lawfully admitted as a company without whatsoever complications.
3. Applying for a change of status subsequently entering the United States in another status
U.S. clearing law allows nonimmigrants to modify from one status to another (such as B-1/B-2 visitor to F-one student, H-1B professional worker, or H-2B nonagricultural seasonal worker) or file for asylum inside the U.Due south. if they meet the eligibility criteria.
A request for change of status through the filing of a Form I-539, Awarding to Extend/Change Nonimmigrant Condition, or Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship & Immigration Services is often met with several obstacles. One is that USCIS volition not corroborate the status modify asking unless you are maintaining lawful B-1/B-2 status or other nonimmigrant condition.
Questions regarding whether a willful misrepresentation of material fact to gain an immigration benefit might arise when you file for a alter of status within the U.S., instead of apply for the appropriate visa at the U.S. Consulate.
B-ane/B-two visitor visa holders, for instance, may be found to have misrepresented the purpose of their stay if they practical to schools or sought employment after arriving in the United States. The mere filing for an extension of status may even cause the U.S. Consulate to question your true intent if you initially informed them the trip would be relatively brief and for a limited purpose earlier they issued the visitor visa.
Even if you did not attend school or work without authorization in the U.S., your taking steps toward a change in status that permits school attendance or employment in the U.Southward. could indicate to the consular officer that y'all were non a genuine visitor.
Clearing problems tin as well occur when you use for aligning to permanent resident condition instead of file for an immigrant visa at the U.S. Consulate. One of the most common ways for a B-1/B-two visa holder to adjust to permanent resident (green card) status is to enter into a bona fide marriage to a U.S. denizen and have the denizen file an immigrant petition on his or her behalf. While an overstay, by itself, does not preclude adjustment of status based on matrimony to a U.S. citizen, providing false data to a consular officeholder or community officer about the purpose of the visit creates immigration problems.
In general, the U.S. Consulate applies a 30/60 day rule in determining whether a misrepresentation was fabricated if you bear yourself in a manner inconsistent with representations fabricated to the consular officers concerning your intentions at the time of visa awarding or to customs officers when you requested admission.
If a B-1/B-two company, for instance, marries a U.S. citizen and applies for a green card inside 30 days of arrival, the consular officeholder may assume the applicant misrepresented his intentions in seeking a visa or access to the U.Southward. There is no presumption of misrepresentation if the request for change of condition is mademore than xxx days but less than 60 days after inflow. But depending on the facts of the instance, the officer may still have a reasonable belief that misrepresentation occurred, in which case the bidder receives an opportunity to present countervailing evidence. While USCIS is not required to follow the Consulate's 30/60 twenty-four hours policy, it sometimes uses it as guidance.
[UPDATE: On August i, 2017, the DOS replaced the 30/threescore day dominion with the xc-24-hour interval dominion, which establishes apresumption of willful misrepresentation "if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry." If such deportment occur inside 90 days of entry, a consular officer "may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry."]
Seeking aviary in the United States, through a credible fear interview process at the U.S port of entry or through the filing of a Form I-589, Awarding for Asylum and for Withholding of Removal, after existence admitted to the U.S., as well signals immigrant intent. If asylum is non granted, information technology will exist very hard (if not incommunicable) for you lot to be re-admitted as a visitor or in some other status that requires nonimmigrant intent, at least in the nigh future.
Conclusion
Having a baby in the U.S., making frequent, extended trips to the land, and applying for a modify in condition following arrival in another status are non prohibited by U.S. immigration police force. Still, if you engage in any of these 3 things, a U.Southward. consular officer or customs officeholder may discover that y'all gamed the clearing system or took unfair advantage of immigration loopholes.
Use proper caution and exist aware of the immigration risks and consequences associated with these activities. If y'all are refused a visa, denied access or issued an expedited removal order for any of these reasons, consult an experienced immigration chaser to discuss possible remedies.
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This commodity provides full general data only. It is based on police force, regulations and policy that are discipline to modify. Do non consider it every bit legal advice for any individual instance or situation. Each legal case is unlike and case examples do not constitute a prediction or guarantee of success or failure in whatsoever other case. The sharing or receipt of this information does not create an attorney-customer relationship.
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Source: https://dyanwilliamslaw.com/2017/07/birth-tourism-frequent-trips-immigration-status-change-3-things-that-often-prevent-entry-to-the-u-s-even-though-they-are-not-strictly-prohibited/
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