The State Department's new “birth tourism” policy leaves unanswered questions on how consular officers will avoid discriminating against pregnant applicants as they implement the new rules.

The policy, which took effect last Friday, directs consular officers to deny temporary B-1 and B-2 (business and tourism, respectively) non-immigrant visas to those they have reason to believe are coming to the United States primarily to give birth so the children become U.S. citizens. The White House has said “birth tourism” is a “glaring immigration loophole” that foreign nationals use to circumvent the system. While former government officials offered nuanced views on the implementation of the policy, many immigration advocates and Democrats criticized it harshly, saying it puts State officials in a position where they could end up inadvertently discriminating against pregnant applicants.

The policy “is fairly straightforward, and reflects the administration's views that foreigners should not give birth in the U.S. simply because they want their children to be American citizens,” said a retired senior State Department officer who worked in consular affairs. “But, there will be many cases in which a pregnant woman is applying for a visa and her principal reason for traveling is not to give birth—even if she expects to give birth while in the U.S.” Students, journalists and employees of international companies could be examples, she said.

“Hundreds of thousands of temporary visitors legally remain in the U.S. for several months or years but eventually plan to return to their own countries,” said the retired officer. Even though the “new regulation may not be intended to result in visa refusal to people who happen to be pregnant,” it can be “that interviewing officers believe the pregnancy alone is a reason to deny the visa. That would be extremely disruptive to many completely legitimate travelers.”

A State Department official told Government Executive that the department “provided detailed operational guidance on this new rule to ensure fair and consistent decision-making.” The officer referred to the updated Foreign Affairs Manual, which is the department’s operational guidance.

“You must not ask a visa applicant whether they are pregnant unless you have a specific articulable reason to believe they may be pregnant and planning to give birth in the United States,” said the manual. Additionally, it said consular officers can’t ask all female applicants if they are pregnant, if they intend on getting pregnant and/or to give evidence they aren’t pregnant. However, “if you have reason to believe the applicant will give birth during their stay in the United States, you are required to presume that giving birth for the purpose of obtaining U.S. citizenship is the applicant’s primary purpose of travel,” the guidance said.

“The Trump policy is long overdue,” said Jessica Vaughan, policy studies director for the Center for Immigration Studies, a think tank that favors stricter immigration enforcement. “I’m a former consular officer, and every visa adjudication is done to screen out ineligible applicants; that is not inherently discriminatory.” She said she thinks the updated guidelines are “sufficient,” however, unless [Customs and Border Protection] officers are applying the same standard at the ports of entry, the new policy will not be as effective as it could be.” The State Department said the rule does not change the Homeland Security Department’s visa waiver program or modify standards the department enforces.

Meanwhile, other immigration advocates and experts said the new policy places the State Department employees enforcing it in a nearly impossible position.

The rule “almost demands discrimination in order for it to be implemented because, at the end of the day, how is a consular officer going to determine a) if a woman is pregnant? and b) if she is coming to the U.S. to have a child?” said Ali Noorani, executive director of the National Immigration Forum, a non-partisan advocacy organization that supports responsible immigration policies. “Unless that consular officer is an OB-GYN or a medical practitioner who is conducting a test, it requires the consular officer to discriminate against that woman in order to implement this policy.” On a call with reporters last Thursday, a State official said consular officers are not allowed to give pregnancy tests.

“I think it’s very problematic that the State Department would be attempting to figure out whether someone is pregnant just by looking at them and then discriminating against women who may be pregnant in deciding whether they should be allowed to visit the United States,” said Kerri Talbot, federal advocacy director at the Immigration Hub, an advocacy organization composed of policy advocates and former congressional staff and executive branch officials that supports fair and just immigration laws.

“There's no way for the officers to tell if someone’s pregnant, so they’re literally just going by whether they think the person looks pregnant and then attempting to make some determination about the person’s intentions in visiting the U.S,” said Talbot. She previously worked on the “Gang of Eight’s” 2013 comprehensive immigration reform bill as chief counsel for Sen. Robert Menendez, D-N.J.

A group of leading Senate Democrats echoed these sentiments in a letter to Secretary of State Mike Pompeo on Friday. “Department officials were unable to explain how consular staff would implement this sensitive policy without discriminating against pregnant women or impacting visitor visa applicants traveling to the United States for medical treatment,” wrote Sens. Robert Menendez, D-N.J.; Patty Murray, D-Wash.; Patrick Leahy, D-Vt.; Dianne Feinstein, D-Calif.; and Martin Heinrich, D-N.M. They asked State to postpone implementation of the rule until their questions are answered, giving a deadline of Feb. 7 for the reply.

In addition to discrimination concerns, there are questions over the exact nature of the threat from “birth tourism.” On the call with reporters, the State official could not give an approximate cost of “birth tourism” to taxpayers annually, but said the department estimates “thousands of children are born in the United States to B-1/B-2 non-immigrants annually.” In the updated rule, the department only cited a January 2019 federal indictment in which 19 people were charged for helping thousands of foreign nationals give birth in the United States in a “birth tourism scheme.”

“This a solution searching for a problem,” said Noorani. “No government agency has made a clear case that this is a pressing crisis facing the nation, whether it’s an economic or national security crisis. This is an issue completely fabricated by the anti-immigrant community.”