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My wife was given a limited stay of 2 weeks on entry into the US after almost being denied entry to US. The problem Is she was due to see a doctor and is almost 33 weeks pregnant which limits her ability to even fly. What can she do? Is there away to appeal while on US soil?

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    Google suggests that most airlines will allow a woman to fly when she's up to 36 weeks pregnant, so isn't the answer to fly home in two weeks? – David Richerby Feb 10 at 12:44
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    @user92007 I don’t mean to sound unsympathetic, but on the face of it this sounds very much like an attempt to give birth in the US - which clearly was the conclusion of the not unintelligent Border officials who will have seen it all before. – Traveller Feb 10 at 13:32
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    She was due to see a doctor in USA? My brother aren’t there competent doctors in Naija? You’re just asking for trouble. We all know the game. This story is as old as US Immigration. Unfortunately she met an astute immigration officer. Just accept the game is up. Sometimes in life you accept your losses. – user 56513 Feb 10 at 13:43
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    Given the concern about flying while pregnant, unless she has really important things she can and will do in the next two weeks, it may be better to leave immediately. – Patricia Shanahan Feb 10 at 15:53
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    Don't forget that some airlines will fly two-day-old babies. Does she want to be deported just 48 hours after the birth, or go back before it? – alephzero Feb 10 at 17:09
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She should leave and go and have the child in Nigeria. Do not risk it for several reasons.

  1. Public Charge complications
  2. Visa Revocation/voiding
  3. Immediate Removal/Deportation Proceedings
  4. Fraud/Misrepresentation

Under the new USCIS policy, most immigrants are put into removal proceedings immediately their extension of status is denied. In you wife’s case she has only two weeks. The change of status will not be acted on within two weeks, that’s a guarantee. Thus if it’s refused it means she will begin accruing illegal presence immediately.There are no appeal rights for B-2 nonimmigrants who are denied extensions of stay.

Do you have insurance to cover the childbirth? If you use public assistance, that’s a public charge. Her next USA visa application will be definitely refused. Even if you petition her for a green card, the possibility of public charge denial will follow her.

Immediately she accrues one day of illegal presence, her visa will automatically void even if its a 5 year visa wirh remaining validity. She will then have to apply for a new visa, with unknown results.

Finally she can be barred from reentry for misrepresentation because I am very sure she told the immigration officer she does not intend to give birth here. Well if now she does give birth they will say she lied. That comes with a permanent bar.

See this video of a Nigerian woman getting her USA visa revoked for attempting to board a flight to give birth in the USA, forward video to 41:35. Your wife was very lucky. Don’t push your luck.

Bottom line, don’t do it. You’re from Nigeria. It might be helpful for you to know that under the Trump administration people from Sub Saharan Africa are being put into deportation procedures at twice the rate of other aliens.

Just don’t do it.

References

Black Migrants Vulnerable For Deportation

Sub-Sahara African migrants have seen the highest spike in deportations during the first nine months of the Trump presidency—more than doubling from 909 to 2,184, according to the report.

Trump administration is revoking previously issued nonimmigrant visas at a record pace for a variety of reasons

Michelle Nicoll Gutierrez had often visited the United States legally since her mother married a retired U.S. Foreign Service official years ago and relocated from Mexico to Maryland. Nicoll Gutierrez’s toddler son was born here after she became ill during an extended stay late in her pregnancy.

She was returning on another trip to celebrate her 42nd birthday when federal officials detained her at Bush Intercontinental Airport Saturday and denied her entrance, revoking her tourist visa, and barring her from returning for five years.

But they said federal officials focused unusually on her use of Medicaid and state health insurance during the birth of her son in December 2016 in Maryland.

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    "Under the new USCIS policy, most immigrants are put into removal proceedings immediately their extension of status is denied." It's actually after a 33-day appeal period after the denial. – user102008 Feb 10 at 18:41
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    "If you use public assistance, that’s a public charge." Not true. Non-cash benefits are not considered for public charge inadmissibility under current rules. And even under proposed future rules (which would only apply to benefits received after the rule becomes effective), Emergency Medicaid (which is the almost certainly the only public insurance the visitor in this case can receive) is not considered. – user102008 Feb 10 at 18:43
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    @user102008 Feel free to down vote and provide a better answer if you think the answer is substantially defective. Since when did childbirth and the associated typical three day stay in the hospital become a non public charge event? And I hope you are aware emergency medicaid only covers labor and delivery only? – user 56513 Feb 10 at 19:29
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    use of non-cash benefits like Medicaid other than for long-term institutionalized care, food stamps, WIC, CHIP, etc. are never considered for public charge inadmissibility purposes under policies adopted by both USCIS and the Department of State for the last 2 decades. Proposed rules would consider use of Medicaid in the future if obtained after the rule becomes effective, but as the OP's wife is not a US citizen or permanent resident, she is generally not eligible for Medicaid, except Emergency Medicaid (or maybe state-funded benefits which are also not considered under the proposed rules). – user102008 Feb 11 at 6:25
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    I know the law and policies very well, thank you; and I cite the actual official policies. A visa cannot be denied or revoked for past or future use of Medicaid (not that a visitor would qualify for regular Medicaid) or any other non-cash benefit. Anything that says otherwise is just factually wrong. However, most kinds of nonimmigrant visas (including visitor visas) can be denied or entry denied for anything the officer doesn't like, under the basis of "failure to overcome the presumption of immigrant intent". – user102008 Feb 11 at 6:34
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Your wife's intentions are being confused.

They think she is here to give birth.

The US has had 243 years of continuous government. Most of its Constitution was written in the age of sailing ships and wagons for transport, when a pregnant woman coming to the US wasn't really possible. This was just after the Civil War, which ended (state sponsored) slavery. To settle the question and lock in citizenship for former slaves, they made the Constitution say that citizenship is granted to anyone who was on US soil when they were born. This is called jus soli.

They might not have gone with that decision today, when that Peculiar Institution is a distant memory and a pregnant woman can easily, safely get to the US in 1-3 days. The only reason it's still that way is that the Constitution is really hard to change. But the recent controversy may cause it.

Anyway, because of this old rule, many pregnant women enter the country specifically so they can give birth on US soil. They want to give their child the ”gift” of US citizenship. And US taxes.

After the child turns 21, he can apply for citizenship for his parents and other family members under current law (which is more easily changed, and is likely to be changed given current fervor about immigration). This creates the appearance of birth parents seeking citizenship for themselves also.

I'm sure this has nothing to do with your reasons, and perhaps this is the first time you're hearing of any of this. The upshot is:

Don't even create the appearance of "birth tourism"

Her situation is problematic.

She claims that flying is perfectly fine at 32 weeks (evidenced by the fact that she willingly did it). But now she claims that flying is not ok at 34 weeks. There are a couple problems with that latter claim. First, it contradicts the fact that she told immigration that was her plan!!! This has "deception" written all over it.

Second, it contradicts the fact that she booked the return trip that way, and started the trip knowing what the timing would be. So she changed her mind after clearing immigration. That makes it look like that was her plan all along.

And third, if she genuinely did just now develop this belief that flight after 34 weeks in unsafe, then why doesn't she move up her return date and leave immediately? Have the doctor squeeze her in first thing tomorrow morning, then be on a flight tomorrow afternoon... That would be most prudent, staying in a strange foreign country to use the most expensive healthcare in the world doesn't make a lot of sense on its face.

All these create the appearance of an ulterior motive, and a rather obvious one. And yes, there is no presumption of innocence in immigration; immigration is not a right.

So anyway, Immigration saw this coming a mile away. She would have been turned away immediately. She was only let in because Immigration saw a great deal of evidence in her favor, that her trip had other legitimate reasons, that she would be a reliable visitor and would keep her commitment. She earned that trust, clearly. But if she now stays, it will break that trust, making the deception even more serious. On top of that, she will have overstayed.

Immigration law calls for a lifetime ban for deception. Immigration will often reconsider after 10 years, but that's not required. Until the Constitution is changed, it will probably be Immigration's practice to make life as difficult as possible. Your future citizenship would be impossible because of deception. A constitutional amendment could even void the child's citizenship as the product of fraud. It would make a big mess.

Staying to have the baby is simply not an option. She needs to complete her travel plans ASAP.

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    This answer contains some very wrong statement that must be challenged. Birth right citizenship was not part of the original constitution. Originally citizenship was defined entirely by the states as they felt, Birth right citizenship was added during Reconstruction. Some states were using so-called "grandfather clauses" - you are a citizen if both your grandparents were citizens. Your grandparents were slaves not citizens? You are not a citizen either. Birthright citizenship says even if your grandparents were born slaves, you are a citizen because you were born here. – emory Feb 11 at 0:51
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    @emory first part: good point. Edited. Second point: It is not illegal for a mother to desire to have a child here, but also the right of Congress or the executive to shape law and regulations to suit their national priorities. Currently they are hostile to birth tourism. If you want different, talk to them. Please don't shoot the messenger. – Harper Feb 11 at 1:17
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    I do not think Congress has acted with respect to birth tourism. You are definitely correct that the President is hostile. – emory Feb 11 at 2:00
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    @emory Birth tourism in itself is not illegal however it is opportunism, shameful, gaming of the system and abuse when you don’t pay for the medical services with your own funds but take advantage of public funds you didn’t contribute any taxes to. At least that’s my opinion. It’s no surprise most countries have moved to end jus soli. Who says it is not the business of immigration to police it? – user 56513 Feb 11 at 5:56
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    "[…] in the age of sailing ships and wagons for transport […] a pregnant woman coming to the US wasn't really possible." Why not? Did a ship really need 9 months to get to America from USA? And if so, is it really impossible to get pregnant on a sailing ship? – glglgl Feb 11 at 9:48
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On a sensitive matter such as this, you should talk to a qualified immigration professional and not rely on the advice of random strangers on the internet. That said here is my advice based on your description and response in the comments.

Congrats to your wife for being able to obtain entry into the US legally. Based on your description it appears that the immigration officer has stamped a No EOS/COS in your wife's passport, this means that the CBP officer believes that your wife shouldn't be allowed to extend here status or change your status. The key here is that this is the opinion of the CBP agent and is not binding as the CBP agent isn't the authority when it comes to deciding whether someone should be allowed to extend their status of to change it. This is exclusively the domain of USCIS.

Based on the USCIS website, you need to meet the following conditions to apply for an extension of status -

  • You were lawfully admitted into the United States with a nonimmigrant visa
  • Your nonimmigrant visa status remains valid
  • You have not committed any crimes that make you ineligible for a visa
  • You have not violated the conditions of your admission
  • Your passport is valid and will remain valid for the duration of your stay

Assuming that these are true (Depends on if your wife's passport is valid and if she committed any crime during her stay, if not the other conditions will be valid till the date the CBP officer stamped on your passport or on her i94), she is eligible to file for a request to extend her stay by timely filing a form I-539.

Now that we've evaluated the legality, lets also hypothetically discuss the next steps. Do note that this again is my opinion and not legal advice. Based on the facts, it is evident that your wife entered the US to give birth (while this in itself isn't illegal) and to do so she lied to the CBP official. Given this when USCIS evaluates the application for extension it will most likely be denied, the only reason they would approve it it if your wife uncovered some information that was previously unknown to her; perhaps the baby is due prematurely or has a condition that she wasn't aware of; you will need a US Doctors letter explaining such circumstances.

What does work in your wife's favor is the time USCIS takes to process extension of stays and the fact that she will not accrue illegal presence until USCIS adjudicates her application. So if she was to file the paperwork timely and have the baby and leave the US before USCIS denies the petition she will have accrued no illegal presence.

This might still make it harder for her to seek admission to the US again nevertheless but she will not have done anything illegal strictly per the immigration law.

I wish you and your wife the very best and strongly urge you to consult an immigration attorney.

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    +1 However note that it is only for a timely non frivolous application that one doesn’t accrue illegal presence. If her application to extend status is denied as frivolous (which is possible in this immigration environment) she would start accumulating illegal presence from the day her I94 expires. uscis.gov/news/news-releases/… – user 56513 Feb 11 at 19:28

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