S. 4501 — BACK OFF Act

This section establishes new grounds of inadmissibility under section 212(a)(2)(F) of the Immigration and Nationality Act for aliens who engage in birth tourism. An alien is inadmissible if the alien is not a lawful permanent resident and, based on the reasonable judgment of the Secretary of Homeland Security, the Secretary of State, or a consular officer, is seeking entry to give birth in the United States or its territories to obtain U.S. citizenship for the child, is likely to give birth within 10 months of entry, or has previously engaged in birth tourism. The provision also renders inadmissible any alien convicted of, or who admits to, offenses under sections 274E, 274F, 275(e), or 1546A of title 18, United States Code. No waiver is authorized, and such aliens are ineligible for parole under section 212(d)(5) or conditional parole under section 236. This section further adds parallel grounds of deportability under section 237(a)(2)(F) of the Immigration and Nationality Act for aliens described in the new inadmissibility provision or convicted of the specified offenses, redesignating the existing subparagraph (F) as (G). No waiver is authorized, and such aliens are ineligible for parole.

This section expands the categories of aliens subject to mandatory detention under section 236(c)(1) of the Immigration and Nationality Act to include those inadmissible under section 212(a)(2)(F) or deportable under section 237(a)(2)(F) by reason of conviction for, or admission to, an offense under sections 274E, 274F, or 275(e), or section 1546A of title 18, United States Code.

This section establishes expedited removal procedures for aliens determined to be inadmissible under section 212(a)(2)(F) or deportable under section 237(a)(2)(F) of the Immigration and Nationality Act on grounds related to birth tourism. An immigration officer must order removal, report the order to the immigration court within 7 days, and refrain from further inquiry or execution until an immigration judge reviews the order, also within 7 days. The alien bears the burden of proving lawful permanent resident status or that the inadmissibility or deportability grounds do not apply. The Attorney General must provide reasonable notice, the opportunity for representation at no government expense, and access to inspect and submit evidence. Aliens arriving from contiguous territory or from the Commonwealth of the Northern Mariana Islands or Guam must be returned to that territory or foreign port pending a final decision. The section bars judicial review of any findings, decisions, or actions taken under these procedures. It further directs the Secretary of Homeland Security to suspend visa issuance for 180 days and bar admission of all citizens, nationals, subjects, and habitual residents of a recalcitrant country that refuses to accept a removed alien within 14 days, subject to a limited national security or foreign policy exception that may be exercised for no more than 50 aliens per fiscal year and requires joint approval at the Deputy Secretary level.

This section requires mandatory medical examinations for biological females of childbearing age applying for B nonimmigrant visas for business or pleasure. A medical officer of the United States Public Health Service must determine whether the alien is likely to give birth in the United States or its territories or outlying possessions within 10 months, which renders the alien inadmissible under section 212(a)(2)(F); the Secretary of State or consular officer may deny the visa or withhold issuance until the alien is no longer inadmissible. This section also authorizes the Secretary of Homeland Security to temporarily detain biological females of childbearing age suspected of inadmissibility under section 212(a)(2)(F) or deportability under section 237(a)(2)(F) for a medical examination and certification by a Public Health Service officer regarding the likelihood of giving birth during the alien’s stay.

This section establishes new criminal offenses and penalties for facilitating birth tourism. It adds section 274E to the Immigration and Nationality Act to prohibit the knowing forgery, counterfeiting, or alteration of documents, the provision of such documents to aliens, or assistance with visa or immigration benefit applications for birth tourism purposes, with penalties of a fine under title 18, imprisonment for not less than 10 years, or both. It further adds section 274F to impose penalties of a fine and imprisonment for not less than 10 years for embezzlement, theft, or misapplication of Federal health care program funds to facilitate birth tourism, and up to 10 years imprisonment for executing schemes to defraud such programs in connection with birth tourism services. This section also amends section 275 of the Immigration and Nationality Act to retitle it “Improper entry by alien; fraud and evasion of immigration laws” and adds subsection (e) to criminalize providing housing, transportation, medical care, or financial support for birth tourism or conspiring to assist entry through fraud or material misrepresentations, with penalties of a fine and imprisonment for not less than 10 years and not more than 25 years. Finally, it adds section 1546A to title 18 to prohibit aiding or conspiring to aid an alien’s entry or stay for the purpose of obtaining U.S. citizenship for a child born in the United States, with a minimum sentence of 10 years imprisonment and a $100,000 fine for each alien assisted.

This section establishes a Taskforce on birth tourism within the Department of Homeland Security, comprising U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, Homeland Security Investigations, and U.S. Customs and Border Protection. The Taskforce investigates and refers for prosecution schemes that facilitate an alien’s entry or presence in the United States for the purpose of giving birth on U.S. soil, produces related training materials for local law enforcement, coordinates with the Department of Agriculture, its Office of Inspector General, the FBI, the U.S. Marshals Service, and other agencies, and submits annual reports to the Senate and House Judiciary Committees, the Senate Homeland Security and Governmental Affairs Committee, the House Homeland Security Committee, the House Foreign Affairs Committee, the Senate Foreign Relations Committee, and the House Oversight and Government Reform Committee beginning one year after enactment, detailing charges, convictions, and investigations by alleged violation, state, and outcome.

This section exempts the Secretary of Homeland Security, the Secretary of Health and Human Services, the Secretary of State, and the Attorney General from compliance with the Paperwork Reduction Act (chapter 35 of title 44, United States Code) and the Administrative Procedure Act (subchapter II of chapter 5 of title 5, United States Code) if the department head determines that compliance would impede immediate implementation of the Act or its amendments.