The State Department has announced new rules to address birth tourism, which is the controversial practice of entering the United States to give birth so that the child will acquire U.S. citizenship. The prevailing interpretation of the 14th Amendment to the U.S. Constitution granting nearly all those born here U.S. citizenship (and the ability to pass it on to their children and to sponsor relatives for green cards) has become a magnet and spawned a lucrative birth tourism industry, attracting families from all over the world. This industry has grown largely without debate in Congress or the consent of the public.
Facts on birth tourism:
- CIS estimates that birth tourism results in 33,000 births to women on tourist visas annually. We estimate that hundreds of thousands more are born to mothers who are illegal aliens or present on temporary visas.
- These births produce instant citizenship for the infant, which can lead, 21 years later, to the migration of the parents, with neither event being controlled by the numerical limits that manage most international migration.
- Some travelers misrepresent the purpose of their trip to avoid scrutiny. Passport and visa fraud are felonies and the first offense can result in a fine and/or imprisonment up to 10 years. See "False Statement in Application and Use of Passport" (18 U.S.C. § 1542), a number of other statutes may also be applicable.
- Tourists who come to the United States to give birth and receive taxpayer-funded public assistance to cover the associated costs of their births or have the expenses waived by a hospital do not have to pay back any of the funds in order to get a future tourist visa.
- Of advanced economies, Canada and the United States are the only countries that grant automatic citizenship to children born to non-citizens who are not legally resident aliens.
- A U.S. passport is an extremely useful and coveted document for terrorists, spies, and criminals, giving them ready access to virtually any country on earth where they may elect to set up operations. Such groups have recruited U.S. passport holders raised abroad.
- Birth tourism to the United States is practiced by people from around the globe, especially including citizens of China, Taiwan, Korea, Nigeria, Turkey, Russia, Brazil, and Mexico.
- Chinese citizens do not require a visa to visit certain U.S. territories, such as the Commonwealth of the Northern Marianas Islands. The birth tourism industry is rampant there, with more annual births to Chinese visitors than native residents.
- Some legal scholars argue that the 14th Amendment Citizenship Clause was never intended to benefit the children of illegal aliens or legal foreign visitors temporarily present in the United States.
- The U.S. Supreme Court has held that the U.S.-born children of permanent resident aliens are covered by the Citizenship Clause, but the Court has never decided whether the same rule applies to the children of aliens whose presence in the United States is temporary or illegal.
- Some eminent scholars and jurists have concluded that it is within the power of Congress to define the scope of the Citizenship Clause through legislation and that birthright citizenship for the children of temporary visitors and illegal aliens could likely be abolished by statute without amending the Constitution.
The rules published today by the State Department on the issuance of visas in the "B" nonimmigrant classification for temporary visitors for pleasure are an appropriate response to the thousands of births resulting from fraud and the resulting benefits of citizenship that these children and their families receive. The rules state:
Travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B nonimmigrant visa. Consequently, a consular officer shall deny a B nonimmigrant visa to an alien who he or she has reason to believe intends to travel for this primary purpose.
This is a great first step, but more can be done.
- Passport issuance data must be examined to better document the frequency of birth tourism, the citizenship of those who do it, and other trends and characteristics of participants.
- Hospitals where this is occurring should be identified, and a means to prevent parents from skipping out on payment for birth services must be found.
- The State Department should revoke or decline to renew visas of those who have abused visa rules in connection with birth tourism, and it must be made clear that perpetrators will be fined and/or jailed under 18 U.S.C. § 1001 and other statutes.
- A legal case needs to be instigated that will proceed through the courts and clarify the meaning of the 14th Amendment in a modern context. The Supreme Court has never ruled on the question of whether children born to tourists are to be considered U.S. citizens at birth.
For more, see:
- "Video: Mark Krikorian Discusses Birth Tourism", October 2018
- "There May Be 33,000 Birth Tourists Annually", December 2019
- "DHS Files Many Indictments in an Attack on Birth Tourism", February 2019
- "Birth Tourism, Belts, and Braces", January 2020
- "Birthright Citizenship: An Overview", November 2018
- "Birth Tourists Come from Around the Globe", August 2015
- "Birthright Citizenship in the United States: A Global Comparison", August 2010