Homeland Security Secretary Markwayne Mullin said Thursday that the Trump administration is working on possible restrictions aimed at preventing women in the late stages of pregnancy from entering the United States, describing the effort as part of a broader crackdown on so-called birth tourism.
The proposal would represent one of the administration’s most direct attempts yet to prevent foreign nationals from traveling to the United States to give birth and secure citizenship for their children, an issue that has become a major focus alongside President Donald Trump’s broader push to restrict birthright citizenship.
Speaking to Fox News, Mullin said he was working with the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) to work out how best to implement new rules that would prevent women in their third trimester from entering the country.
“We don’t allow sick individuals to come in here if they’re coming from an area…that could possibly spread a disease,” Mullin said. “My grandson was just recently born, and her OB-GYN didn’t want her flying late into her third trimester, so maybe we should be looking at this, they shouldn’t be coming in late in their pregnancies, because I think at that point we could cut down on this birthright citizenship.”
A DHS spokesperson said that while giving birth in the U.S. was not unlawful, the department was focused on addressing potential violations of federal law, including visa fraud.
“As a matter of policy, DHS does not comment on specific investigative techniques, ongoing investigations, or potential future actions,” the spokesperson told Newsweek. “We remain committed to working with our partners to identify and address transnational criminal activity where it exists.”
The administration is implementing an executive order signed by Trump on August 6 that directs the secretaries of State and Homeland Security to prevent foreign nationals from using nonimmigrant visas to enter the country for what it defines as “birth tourism.”
The order does not categorically prohibit pregnant women from traveling to the U.S. Instead, it targets foreign nationals whose purpose in entering on a nonimmigrant visa is to give birth on U.S. soil, as well as those accused of helping arrange such travel.
It authorizes officials to consider denying or revoking visas and travel authorizations, rejecting travelers at the border, removing people who previously engaged in birth tourism and acting against facilitators. It also permits humanitarian and national-interest exemptions.
Leon Fresco, a former deputy assistant attorney general in the Justice Department’s Office of Immigration Litigation and now a partner at Holland & Knight, told Newsweek that the administration has several existing avenues to enforce the order.
Every traveler seeking legal entry must be admitted by an officer with U.S. Customs and Border Protection’s (CBP) Office of Field Operations, Fresco said. If an officer believes someone appears close to giving birth, the traveler could be referred for secondary inspection and questioned more extensively about the purpose of the trip.
“They would put the person in secondary inspection and ask a lot more questions and try to figure that out and potentially even say, ‘Look, you don’t have to take a pregnancy test, but we’re not going to let you in unless you take one,’” Fresco said. “And from that standpoint, those things have been done in the past.”
What Are the Current Rules?
Traveling to the U.S. while pregnant is not, by itself, prohibited. Under the existing rule for B-category visitor visas, the determining issue is the traveler’s primary purpose, and that is where the government faces difficulty.
“The government has no evidence of how many babies are born to ‘birth tourists,’ and also no evidence it is a problem,” Amanda Frost, a law professor with a focus on immigration at the University of Virginia Law School, told Newsweek. “But if large numbers of birth tourists are coming to the United States, that means the Trump administration has not been enforcing the law that is already in place.
“A federal regulation in place since 2020 bars women from getting tourist visas for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States. It also establishes a presumption that women coming into the United States who will give birth during her stay are doing so for the purpose of obtaining U.S. citizenship for the child,” Frost said.
“That can be enforced both when determining whether to give the applicant the visa (at the U.S. consulate abroad) and when the woman enters the United States at the border. Presumably, if the woman looks to be in her third term of pregnancy, she could be barred from entering.”
The regulation creates a rebuttable presumption against an applicant when a consular officer has reason to believe she will give birth during her stay. That means the applicant can seek to overcome the presumption by showing that obtaining citizenship for the child is not the primary purpose of the trip.
Medical treatment remains a permissible reason for a B-2 visa visit. However, an applicant traveling for treatment must satisfy a consular officer that she has made arrangements with a medical provider and can pay the projected costs, including transportation and living expenses. Visitor-visa applicants must also demonstrate an intention to leave after their temporary stay and adequate financial arrangements for the visit.
The 2020 regulation applied to State Department visa decisions. The Federal Register notice at the time said it did not change DHS admissibility regulations, including those covering travelers under the Visa Waiver Program. Trump’s latest order goes further by expressly directing both the State Department and DHS to update their rules, policies or operational guidance.
Fresco said women who have disclosed a genuine need for medical treatment and obtained appropriate State Department approval would be in a different position from travelers suspected of concealing an intention to give birth.
He added that it was already “not rare” for CBP to reject a traveler if officers concluded that she was coming solely to deliver a baby without the appropriate authorization.
“The problem is, of course, how do you determine who’s what?” Fresco said. “If someone is pregnant, if someone otherwise looks pregnant but isn’t pregnant, that’s where this gets very dicey and politically challenging.”
How Could the Crackdown Be Enforced?
The first route is through overseas visa screening. Under current regulations, a consular officer can reject a B visa application after determining that obtaining U.S. citizenship for a child by birth is the primary reason for the trip. The recent executive order permits the State Department to update its policies and guidance and take action against existing visas or travel authorizations.
The administration has established a State Department Birth Tourism Prevention Task Force that reviews visa holders’ activities, examines travel histories and works with DHS to identify people and networks allegedly involved in birth tourism. The department said on August 12 that the task force had revoked more than 600 visas worldwide, although visa revocation does not, by itself, prove that every affected person engaged in birth tourism.
A second route is inspection at airports and land-border crossings. Having a valid visa or authorization to travel does not guarantee admission. CBP makes a separate admissibility decision when the traveler arrives, giving officials another point to question the purpose of a visit and refer someone for secondary inspection.
A third route is the law against immigration fraud or willful misrepresentation. Fresco said there is no immigration statute specifically criminalizing birth tourism, but officials could allege that a traveler misrepresented or concealed the real purpose of her trip.
“If you did not disclose that you were coming to the United States for the purposes of giving birth, then they could say that you were committing immigration fraud,” he said.
The State Department similarly says foreign nationals who willfully misrepresent the purpose of their travel may become permanently ineligible for a visa or admission. It has publicized cases involving travelers, it says, who used vacations, conferences or official business as cover stories before giving birth in the U.S.
How Common Is Birth Tourism?
Determining the scale of birth tourism is difficult because the term can be applied too broadly, Fresco said.
A noncitizen who is already living in the U.S. on a work visa and gives birth is not necessarily a birth tourist. Pregnancy alone also doesn’t establish that someone is traveling to obtain citizenship for a child.
“If you’re here on a work visa and you give birth here, I wouldn’t call that birth tourism,” Fresco said. “It’s just life happening while people are here on visas.”
He defined the narrower practice as obtaining a visa and traveling specifically to give birth to a U.S. citizen child, potentially hoping the child could eventually petition for a parent to receive a green card after turning 21.
Fresco said companies offering such arrangements exist, including through online and social media channels. But estimates sometimes cited in the tens of thousands are difficult to confirm because officials cannot easily determine the underlying purpose of every birth to a foreign national.
“It’s just one of those, ‘How do you know what you don’t know?’ sort of things,” he said.
The Link to Birthright Citizenship
Trump’s birth-tourism order was issued alongside a separate executive order attempting to narrow the categories of U.S.-born children recognized as citizens. The administration presented both as responses to the Supreme Court’s June 30 ruling in Trump v. Barbara.
On September 2, a federal judge in Maryland issued a preliminary injunction barring the government from applying the newer citizenship order to members of an existing class. The court said the Supreme Court had already held that children born to parents unlawfully or temporarily present in the United States were citizens at birth and found that the plaintiffs were likely to succeed in their constitutional challenge.
The injunction did not prevent the administration from developing public guidance under a separate provision of the order.
The distinction is central to the administration’s evolving strategy. Birthright citizenship concerns whether a child born in the U.S. is legally a citizen. The birth-tourism order instead seeks to prevent certain travelers from entering the country before a birth occurs, placing the immediate decision within the visa and border-admission system.
Fresco predicted that the administration may also look beyond entry restrictions and try to limit some immigration benefits associated with having a U.S.-citizen child, including a citizen child’s ability, after turning 21, to petition for a parent.
“They can’t block birthright citizenship, which is what they tried,” Fresco said. “What they’re going to try to do is block all of the various accompaniments that come with birthright citizenship.”
“I think they’re going to try to figure out what other things that surround birthright citizenship they might be able to legally cut without getting enjoined by a court,” he added.
That prediction goes beyond the measures expressly detailed in the birth-tourism executive order, and any attempt to change eligibility for family-based immigration benefits would depend on the statutory authority invoked and would likely face separate legal challenges.
Contact Newsweek editors on this story: Samantha Beech and Sam Wilson.