The Dusk of Birth Tourism and the Families Caught up by Past Decisions

An Unexpected Bad News

On an afternoon like any other, Mr. Liu stumbled out of the U.S. Consulate in Guangzhou. His application to renew his tourist visa had just been denied, along with his wife and eldest son’s application as well. What’s more, the officer even revoked all their current tourist visas, which still have some time left on them, without hesitation. Mr. Liu was baffled. He has a successful career in China, his younger son is a U.S. citizen, and neither he nor his wife had any intention to immigrate to the United States. This family has consistently traveled to the United States with tourist visas on multiple occasions without any incidents in the pasts.

This time, Mr. Liu had sought to renew his tourist visa to accompany his younger son to the United States, where Mr. Liu intends to help his younger son settle in for his upcoming 7^th grade education Stateside. Mr. Liu planned to accompany his younger son during the initial phases while his wife would stay longer with a renewed tourist visa to serve as a guardian. Given the seemingly routine nature of their visa application, Mr. Liu had expected the renewal process to be smooth and straightforward.

Mr. Liu collapsed onto the sofa back home, trying to recall whether he might have said anything inappropriate during the interview. As he dug deeper into his memory, his thoughts drifted to an afternoon many years ago –he was heading to the Consulate with his wife, dressed in loose-fitting clothes that concealed her pregnancy, applying for a tourist visa for the very first time.

The Golden Age of Birth Tourism

For the past few decades, birth tourism has been a common phenomenon in the United States. Birth tourism is a term that denotes the fact that foreign pregnant women travel to the United States on a tourist visa for the purpose to give birth on U.S. soil and thus obtaining citizenship for their children per the birthright citizenship principle. In its early days, birth tourism occupied a legal gray zone because no policy or regulation explicitly endorsed traveling on a tourist visa for the purpose of childbirth. As a result, early participants of birth tourism developed various tactics to conceal their pregnancies from consular officers and border agents. This nascent birth tourism industry in the U.S. has grown into a substantial ecosystem that include services such as airport pickups, medical services, and postpartum care centers. Despite relatively large demand for such services, the ambiguous legal status led to rampant disputes. Community resistance also mounted against these postpartum service centers. In 2015, the Department of Homeland Security conducted coordinated surprise inspections of 27 postpartum centers in Los Angeles and Irvine areas in the state of California, and several centers were charged with visa fraud and welfare fraud.

After these raids, birth tourism industry found new opportunities as properly licensed agencies and service centers emerged and captured the market in the aftermath. U.S. federal officials then clarified that the United States does not oppose foreign pregnant women giving birth on U.S. soil as long as they remain true to their intend of doing so during visa application process and do not obtain entry visas via fraudulent means. Changes in official policy and market dynamics ushered in a golden age for birth tourism. Foreign pregnant women can now openly declare their intent to give birth in the U.S. when apply for a tourist visa, and consulate officers will usually grant their application upon sufficient evidence demonstrating adequate assets to cover travel, lodging, and medical fees. In February 2015, the U.S. Department of State issued a global cable that reiterating that obtaining a B Visa (business/tourist visa) for the purpose to give birth in the United States qualifies as the legitimate purpose of obtaining medical treatment in the United States. The purpose of the cable was twofold: (1) ensuring applicants that consular officers would adjudicate applications of birth tourism under the B Visa’s medical-travel provisions, which will deny the issuance of a visa when the consulate officer has reasonable suspicion that the applicant is unable cover all resulting medical costs (In 2018, the Department of State further tightened guidelines on assessing applicants’ ability to cover medical expenses), so that (2) applicants no longer need to conceal their intent of giving birth for fear of refusal. As such, birth tourism had officially entered a golden age.

This golden age triggered a massive growth of birth tourism. Despite a general lack of official data from the Department of State, the Center for Immigration Studies claims in a 2020 report that there are around 20,000 to 26,000 births in the United States are attributed to birth tourism annually, with potentially many more that remained uncaptured by this report. The report also indicated that birth tourism was a popular endeavor for citizens of a variety of nations, including Korea, Nigeria, Turkey, Russia, Brazil, Mexico, and China.

A Radical Shift in B Visa Policies

However, at the end of President Trump’s first term, the policy on birth tourism was reverted. In 2020, the U.S. Department of State reviewed the practice of foreign citizens obtaining B Visas for the sole purpose of giving birth in the United States and thereby securing U.S. citizenships for their newborns, and reached an unfavorable conclusion for birth tourism. The Department of State concluded that birth tourism is an unlawful exploit of both the federal visa system and the nation’s naturalization regime. The conclusion rested on two main considerations: (1) the statutory definitions within the relevant statutes, and (2) concerns over U.S. national security.

First, the Department of State narrowed its interpretation of the work “pleasure” (the term used in INA 101(a)(15)(B)) as the primary purpose of obtaining a B Visa. Prior to 2020, birth tourism was interpreted to fall under the category of traveling to the U.S. for receiving medical treatments as medical tourism has long been recognized as a legitimate reason for obtaining a B Visa. After 2020, however, birth tourism was explicitly excluded from this interpretation as being inconsistent with the intent of the statute.

Second, the Department of State argued that birth tourism enabled large numbers of individuals with no genuine, ongoing ties to the United States to enter the country and give birth to individuals that could immediately acquire citizenship without any screening or evaluation, effectively circumventing its border control, residency, and naturalization systems. Such a loophole, the Department concluded, could pose a threat to national security.

As a result, in 2020 the Department readily amended B Visa policies to remove birth tourism as a valid basis for visa issuance and admission. The era of legally sanctioned birth tourism in the United States has effectively come to an end. This change is currently reflected under 22 C.F.R.§ 41.31(b)(2)(i)

Risks of Birth Tourism

We cannot determine exactly how many families like Mr. Liu’s are now facing the bitter consequences of what once appeared to be a successful endeavor of giving birth in the U.S.. Yet the ordeal faced by the Liu Family vividly illustrates the latent risks confronting similar households following the shift in U.S. visa policy after 2020. Mr. Liu remains immersed in his recollections of that distant afternoon when he deliberately chose a loose-fitting outfit for his wife when applying for a B Visa. Mr. Liu and his wife ultimately secured the visa and welcomed their younger son in the U.S.. Between 2015 and 2020, birth tourism was a completely legal activity, but the concealing tactics that the Liu Family employed during application was also precisely the common tactic seen in days prior to the golden era of birth tourism, when the endeavor itself was in a legal grey zone.

That is the crux of the issue, that the 2020 policy reversal by the U.S. Department of State not only legally shut the door for utilizing B Visas for birth tourism, but also redefined and retroactively scrutinized past applications. When the consular officer reviewed the Liu Family’s renewal applications, the officer likely accessed the family’s application and entry records. Upon discovering that a prior visa issuance closely preceded their younger son’s date of birth, the officer had reasonable suspicion regarding the true intent behind the application. When the stated purpose of a visa application diverges from its actual purpose, the Liu family could be associated with visa fraud. Even though Mr. Liu repeatedly asserted his lack of intent to immigrate by pointing to his established career at home and a spotless record, questions about his honesty during application fundamentally undermined any possibility of securing any U.S. visa in the future.

The Liu family’s predicament directly reflects the risks stemming from a lack of stable residency status. In just five years, birth tourism has shifted from being a officially recognized (and to some extent even encouraged) endeavor to being deemed illegal under U.S. visa statutes and border control policies. This rapid policy pivot for standard nonimmigrant visas (commonly B, J, and F Visas) has become an insurmountable chasm. It not only completely disrupted the family to travel to the U.S. in order to care for and accompany the younger son but also legally prevented the family members from obtaining future visas lawfully. This presents a sharp contrast to U.S. permanent residency status. Unlike the rapidly shifting policies and guidelines of non-immigrant visas, the legal frameworks and policies for Employment Based permanent residency had remained stable. The permanent residency status comes with a legal guarantee that far exceed those found under non-immigrant visas, which can collapse in an instant with a policy change issued by any administration. The certainty of a permanent residency, an identity cannot be easily revoked by a sudden policy amendment, has become the cornerstone for keeping families together in the United States in the long term.

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