“Birth Tourism.” “Maternity Tourism.” “Birthright citizenship.” “Jus soli: right of the soil.”
These terms are growing increasingly popular in the American rhetoric, particularly given the focus on immigration issues by many candidates in the upcoming U.S. presidential election. Pursuant to the 14th Amendment of the Constitution and subsequent case law (see United States v. Wong Kim Ark, 169 U.S. 649 (1989)), U.S. citizenship is automatically granted to almost all children – excluding children of diplomats – born in the United States, regardless of their parents’ immigration status.
As a result of this unique right (Canada is the only other developed country that grants citizenship upon birth), many foreign nationals visit the United States solely for the purpose of giving birth to American citizens. While the figures are difficult to confirm, various organizations have estimated that there could have been as many as 36,000 birth tourists (i.e. mothers who travel specifically to give birth) in 2012, with approximately 340,000 of the 4.3 million babies born in the United States in 2008 the offspring of unauthorized immigrants.
These foreign nationals often lawfully enter the United States with B tourist visas. According to case law, the B visa is not meant to be “a catch-all classification available to all who wish to come to the United States temporarily for whatever purpose” (see Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979)). Nevertheless, in general, the regulations allow for the B-2 visa for tourism or pleasure to be available to foreign nationals who seek to enter the United States temporarily, who have no intention of abandoning their foreign residence and have ties to such residence abroad, who have adequate financial arrangements to carry out the purpose of their visit to the United States, and who intend to depart at the expiration of the requested period of stay.
It is therefore not necessarily unlawful to enter the United States for the specific purpose of giving birth. Additionally, women who visit the United States to give birth often contribute to the local economies by spending thousands of dollars in hospitals, on shopping sprees, and for luxury accommodations during their visits, as recently reported by The Wall Street Journal — certainly a positive consequence of the phenomenon, particularly among wealthy Chinese foreign nationals.
However, foreign nationals must understand the significant impact of birth tourism on their U.S. immigration plans. Misrepresenting their pregnancies and/or intentions to give birth while at an interview for a B visa at a U.S. consular post or to a Customs and Border Protection officer at a U.S. port of entry can have serious consequences and result in future U.S. visa denials, allegations of/arrests for visa fraud, or even removal from the United States. A Taiwanese woman was recently denied entry into the United States for allegedly concealing her pregnancy from airline officials so she could give birth in the United States after going into labor mid-flight.
Recently, there have been a string of EB-5-based immigrant visa denials at U.S. consular posts in China, including the Embassy in Guangzhou, based on applicants’ earlier misrepresentations regarding their intention to give birth in the United States at their B visa interviews. Misrepresentations about material facts and the presumption of immigrant intent in a nonimmigrant visa application therefore have very serious implications. It is therefore very important that foreign nationals discuss these issues with their immigration attorneys prior to their immigrant visa appointments. They should be prepared to explain the circumstances around obtaining a B visa previously and entering the United States close to their due dates, for example, as seeking to enter the United States close to the due date may elicit additional security at consular posts.
Accordingly, all visa applicants and foreign nationals seeking entry into the United States should answer questions regarding their purposes to be in the United States honestly and be prepared to present the appropriate documentation related to their intentions. As aforementioned, entering the United States specifically to give birth is not necessarily unlawful and is often acceptable. Moreover, the B-2 visa also allows for a visit to the United States for medical treatment, so if applicable, a “birth tourist” could be eligible for this specific visa due expressly to her pregnancy and labor requirements.
It is important for foreign nationals to bear in mind that both the issuance of visas and their admission to the United States are discretionary. Violations of nonimmigrant status or inconsistencies in nonimmigrant visa or immigrant visa applications based on matters like intent can have serious consequences for future applications, particularly for immigrant visa applications like those based on EB-5 approvals. Working with an experienced immigration attorney on preparing for these issues is therefore imperative.
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