S4501-119

What This Bill Does

The BACK OFF Act creates a new birth-tourism enforcement framework in immigration, criminal, visa, medical-screening, and agency-operations law. It amends the Immigration and Nationality Act to make certain noncitizens inadmissible, deportable, ineligible for waiver, and ineligible for parole if they are convicted of, admit to, or are determined to have engaged in birth tourism or related offenses. The bill also creates a broader inadmissibility ground when the Secretary of Homeland Security, Secretary of State, a consular officer, or the Attorney General judges that a noncitizen is seeking to enter or remain in the United States, its territories, or outlying possessions to give birth on U.S. soil so that the child obtains citizenship at birth.

The bill adds birth-tourism offenses to mandatory detention rules and creates an expedited removal process. Immigration officers must order removal for noncitizens found inadmissible or deportable under the new birth-tourism grounds, report the order to immigration court within seven days, and wait for immigration-judge review. Immigration judges must review the order within seven days, and the noncitizen bears the burden of proving lawful permanent resident status or that the new birth-tourism grounds do not apply. The bill bars judicial review of findings, decisions, and actions taken under that expedited process. It also requires DHS to return certain arriving noncitizens to contiguous territory, the Commonwealth of the Northern Mariana Islands, Guam, or foreign ports of embarkation while review is pending. If a country refuses to accept a removed person within 14 days, DHS must direct State to pause visa issuance for that country's citizens, nationals, subjects, and habitual residents for 180 days and suspend their admission until the country accepts the person, subject to a narrow national-security or foreign-policy exception capped at 50 people per fiscal year.

The bill requires medical screening tied to suspected birth tourism. Before issuing a B visitor visa for business or pleasure, the Secretary of State or a consular officer must require a biological female of childbearing age to submit to a U.S. Public Health Service medical examination to determine whether she is likely to give birth in the United States during the stay. A medical officer must certify the finding, and the visa may be denied or withheld if the officer suspects birth within 10 months in the United States, its territories, or outlying possessions. DHS must also temporarily detain a suspected biological female of childbearing age long enough for a Public Health Service medical officer to conduct physical examinations, tests, and certifications for immigration officers or immigration judges.

The bill creates criminal penalties for people who facilitate birth tourism. New INA section 274E makes it unlawful to forge, alter, supply, or prepare false documents or immigration applications for birth tourism, with fines and at least 10 years of imprisonment. New INA section 274F penalizes theft, embezzlement, misapplication, or fraud involving federal health care program assets used to facilitate birth tourism, also carrying fines and imprisonment. The bill adds a new birth-tourism fraud subsection to INA section 275 for people who provide housing, transportation, food, medical care, travel, financial support, or conspiracy assistance for fraudulent entry to obtain citizenship for a child, with a prison range of at least 10 years and up to 25 years. It also adds 18 U.S.C. 1546A, imposing at least 10 years in prison and a $100,000 fine per alien on people who aid, assist, or conspire to help birth-tourism entry or continued presence.

The bill establishes a Department of Homeland Security birth-tourism taskforce including USCIS, ICE, Homeland Security Investigations, and Customs and Border Protection. The taskforce must investigate people, organizations, and entities that run birth-tourism schemes, refer cases to the Department of Justice for prosecution, produce training materials for local law enforcement, coordinate with USDA, the USDA Inspector General, FBI, U.S. Marshals Service, CBP, and other agencies, and submit annual reports to congressional committees on charges, convictions, and investigations. The bill lets DHS, HHS, State, and DOJ bypass Paperwork Reduction Act and Administrative Procedure Act requirements when the department head determines that compliance would impede immediate implementation.

Who Benefits and How

DHS immigration enforcement components benefit because the bill gives them broader inadmissibility, deportability, detention, expedited removal, return, and investigation tools for suspected birth tourism. The Department of State and consular officers benefit from explicit authority to deny or withhold B visitor visas after medical certification suggests birth during the stay, and from visa-suspension leverage against countries that refuse returns. DOJ prosecutors benefit from new criminal offenses covering false documents, immigration applications, health care program fraud, logistical support, and conspiracies connected to birth tourism. Federal health care programs and federal taxpayers benefit from deterrence and prosecution of federal health care program theft or fraud used to finance birth-tourism arrangements.

Who Bears the Burden and How

Noncitizens suspected of birth tourism bear the largest burden because the bill requires them to satisfy new immigration restrictions, makes them inadmissible or deportable, bars waiver and parole, subjects them to mandatory detention and expedited removal, shifts the burden of proof onto them in immigration-judge review, limits judicial review, and authorizes temporary detention for medical examinations. Biological females of childbearing age applying for B visitor visas or suspected by immigration officers must comply with medical-examination, testing, certification, detention, visa-denial, and visa-withholding requirements that can add costs and delay or block entry. People and organizations that arrange false documents, immigration applications, housing, transportation, medical care, travel, financial support, or health care program fraud for birth tourism face new penalties, enforcement exposure, fines, mandatory minimum prison terms, and per-alien fines. DHS, State, HHS, the U.S. Public Health Service, immigration courts, DOJ, and local law enforcement bear administrative burden from implementation of screenings, medical certifications, seven-day court reviews, return logistics, visa suspensions, investigations, prosecutions, training, and annual reporting.

Key Provisions

• Creates new INA inadmissibility and deportability grounds for birth tourism and related document, immigration, health care, and entry offenses, with no waiver and no parole eligibility.
• Adds birth-tourism offenses to mandatory detention and creates a seven-day expedited removal review process with the burden of proof on the noncitizen and no judicial review of covered findings, decisions, or actions.
• Requires DHS and State to suspend visas and admissions for citizens, nationals, subjects, and habitual residents of countries that refuse within 14 days to accept a person removed under the new process, with a narrow exception capped at 50 people per fiscal year.
• Requires U.S. Public Health Service medical examinations and certifications for biological females of childbearing age seeking B visitor visas or suspected by immigration officers of birth tourism, and allows visa denial or withholding based on likely birth within 10 months.
• Creates new criminal penalties for false documents and applications, federal health care program theft or fraud, logistical support, and conspiracies connected to birth tourism, including at least 10 years of imprisonment and a $100,000 per-alien fine under new 18 U.S.C. 1546A.
• Establishes a DHS birth-tourism taskforce with USCIS, ICE, Homeland Security Investigations, and CBP to investigate schemes, refer cases to DOJ, train local law enforcement, coordinate with other agencies, and report annually to Congress.
• Lets DHS, HHS, State, and DOJ bypass Paperwork Reduction Act and Administrative Procedure Act requirements when department heads decide those requirements would impede immediate implementation.