What’s Behind the State Department’s New “Birth Tourism” Rules?

By  //  August 6, 2020

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In the United States, the term “birth tourism” refers to non-citizens giving birth on U.S. territory so their children can receive American citizenship.

In the United States, the term “birth tourism” refers to non-citizens giving birth on U.S. territory so their children can receive American citizenship.

There are no official figures on how widespread this practice is, though President Donald Trump’s State Department alleges reports from its consulates that birth tourism is on the rise.

Whether because of these reports or because strict immigration policies have always been key to his platform, Trump began 2020 by targeting birth tourism with new rules on class B non-immigrant visas.

Under the administration’s new policy, if a consulate decides you are entering the United States for the primary purpose of giving birth, it has the authority to deny you a visa.

So far, it is unclear exactly how this new rule will work in practice. Birth tourism is not illegal in the U.S, though authorities have sometimes prosecuted those who facilitate it on a corporate level.

Beyond that, the rights of babies born in American territory are protected by the 14th amendment in the U.S. Constitution. It states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

“The tricky thing about birthright citizenship is that immigration at the consular level is not a legal process,” Attorney Omeed Berenjian of BK Law Group states. “You aren’t afforded due process. The consulate has the power, and they don’t need a legal reason to deny your visa. While the Constitution is the law of the land, the 14th amendment unfortunately only protects the child’s rights, not the parent’s.” 

Legal experts did mention that prospective immigrants have some legal recourse through civil lawsuits. However, these can be difficult for foreigners to file against the U.S. government without an in-country intermediary, such as a corporation that will sue on behalf of its non-citizen employees.

For people seeking a temporary tourist visa, a legal solution becomes even less practical. Instead, lawyers recommend knowing the basics of the new immigration policy and taking steps to avoid suspicion of birth tourism.

During visa interviews, officials at U.S. consulates are not allowed to ask if a woman is pregnant. This rule has raised concerns that they will rely primarily on whether the woman is visually pregnant or require negative pregnancy tests as evidence, both of which could be human rights violations.

Hong Kong airlines was recently forced by public pressure to stop requiring pregnancy tests to the island of Saipan, believed to be a birth tourism hotspot.

The only other clue available to consulates is whether a visa applicant lists medical treatment as their primary reason to come to the United States.

It is best to be transparent about your medical intentions in the United States to avoid raising suspicion, and to come to the consulate armed with doctors’ notes and itemized lists of what medical procedures you are seeking and how you plan to pay for them.

Birth tourism is a complex issue, and the new Trump administration policy is likely to complicate it further. Those who support the new rules point to the fact that birth tourists to the United States have historically been wealthy.  These foreigners can afford a significant investment to get an American passport for their child, and thus circumvent the immigration process that applies to everyone else.

They also reference the need to cut down on the birth tourism industry. In the new rules, the State Department directly named international companies that provide birth tourism services as a reason for the crackdown. U.S. attorneys have prosecuted these companies, which cater to the less-wealthy in countries like Russia and China, for criminal or exploitative activities.

Opponents of the new policy counter that restricting visas for anyone entering the U.S.  suspected of birth tourism will only give more business to criminal entities, similar to how restrictions on crossing land borders create business for illegal guides.

They also decry how the unclear standards of the new policy leave pregnant and female visa applicants open to discrimination from officials whose natural biases might be amplified by so much leeway from the State Department.

Even the 14th amendment itself remains open for debate. Some Americans believe it makes birthright citizenship sacrosanct, a perspective reinforced by the country’s long tradition of welcoming immigrants. Others argue it was meant to provide citizenship to freed slaves after the American Civil War and is now being twisted for a different purpose.

As long as President Trump remains in office, we can expect the issue of who gets to enter the United States to stay at the forefront of the national consciousness. Policy changes like the new rules against birth tourism are the new normal. So stay informed, as there is likely more to come.