The Trump Administration is turning its attention to birth tourism again. President Trump was reportedly considering trying to end the practice with an executive order or by way of a constitutional challenge. But accomplishing the goal through regulation has been on the Department of State’s (DOS) agenda. DOS published a final rule on January 24, 2020 that clarifies that an individual cannot obtain a B visa in order to enter the United States to give birth to a child who will automatically obtain U.S. citizenship.

This move can be seen as part of the Trump Administration’s “extreme vetting” efforts. According to one DOS official: “This change is intended to address the national security and law enforcement risks associated with birth tourism, including criminal activity associated with the birth tourism industry . . .” Officials have already made arrests and charged operators of birth tourism companies with conspiracy to commit immigration fraud and money laundering. The new regulation would do more to try to stem the tide at its source – making it illegal to enter the United States for the purpose of birth tourism. The Administration recognizes that this would not prevent women who already have B visas from entering the United States, at a later date after they become pregnant.  Despite that, the Administration sees this as a first step toward establishing that the practice is wrong. As a second step, such regulations could also be used by Customs and Border Protection (CBP) to deny admission to some pregnant women at the ports of entry if they are suspected of coming to the United States to give birth to a new U.S. citizen.

Birth tourism made it into the news in early January 2020, when Hong Kong Express Airways would not let a Japanese woman board a flight to Saipan because they suspected she was pregnant and wanted to give birth on U.S. soil. Saipan is the largest island in the Commonwealth of the Northern Mariana Islands, U.S. territory. It has become a popular birth tourism location in part because Chinese nationals can visit Saipan without obtaining a visa. Chinese tourists have been able to enter Saipan without visas since 2009. In 2009, 12 Chinese tourists gave birth on the island. By 2018, the number was 575.  Authorities in the Commonwealth have resolved to limit birth tourism. Due to health concerns and concerns about tourism in general, the length of stay for Chinese tourists has been cut to 14 days – down from 45 days.

Knowing that pregnant women might be turned back at the border and because airlines have the obligation to fly such passengers back to their departure locations, airlines themselves have initiated various pre-screening efforts. Hong Kong Express went quite far and required the Japanese woman to take a pregnancy test because she looked as though she might be pregnant. She was not. The airline apologized and has suspended this practice.

Under the new B visa regulations:

  • 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 visa;
  • B visa nonimmigrant applicants who seek medical treatment in the U.S. must demonstrate that a medical practitioner or facility has agreed to provide treatment, the projected duration and cost of the treatment, and that arrangements have been made for payment for the treatment as well as incidental costs;
  • There is a rebuttable presumption that a B nonimmigrant applicant who a consular officer has reason to believe will give birth during her stay in the U.S. is travelling for the primary purpose of obtaining U.S. for the child; and
  • That rebuttable presumption may be overcome based upon specialized medical treatment or other reasons such as visiting a dying relative or a showing that the child has other access to the U.S. citizenship.

If you have questions about how the effect of this new Final Rule, please reach out to your Jackson Lewis attorney.

Traveling to the U.S. to give birth to a U.S.-citizen child, or birth tourism, is not a new industry. In January 2018, DHS raided 20 “maternity hotels” in Los Angeles suspected of housing “birth tourism” operations. A neighbor who lived near one of the apartment buildings reported that “a forklift delivered an excessive quantity of diapers to the building, but [she] did not realize the extent of the scheme.” Authorities are most interested in identifying and charging the owners of the so-called travel agencies, i.e., organizations set up in the U.S. to provide services to women who want to give birth to a U.S. citizen. These agencies charge as much as $100,000 for their services and allegedly engage in various criminal schemes to overcome U.S. immigration laws. In January 2019, for the first time ever, law enforcement officials made arrests and charged birth tourism operators with conspiracies to commit immigration fraud and money laundering.

Currently, no immigration restrictions explicitly forbid a woman from traveling to the U.S. to give birth to a U.S.-citizen child, as long as she can prove she has the assets to pay for medical care and housing. Nevertheless, believing consular officers or officers at a U.S. port of entry would use their discretion to bar near-term pregnant women from entering the U.S., the travel agencies reportedly coach the women on how to gain entry to the U.S., including making misrepresentations about their job opportunities, familial situation, and educational background. They also encourage the women to enter the U.S. prior to their third trimester in order to conceal the pregnancy, and even go so far as to suggest that the women make their initial entry into Hawaii, posing among other tourists, before traveling to the mainland U.S.

Birthright citizenship was introduced into the U.S. Constitution in 1868, when the 14th Amendment was passed at last, granting citizenship to former slaves who were born in the U.S. but denied citizenship.

Birthright citizenship is not unique to the U.S., but it exists only in a minority of countries.

A former Assistant Attorney General in the Clinton Administration, Walter Dellinger, explained:

We believe in a clean slate principle. . . . Whatever questions there are about the legitimacy of parents or grandparents, in our country you get a clean slate. Every new child who is born here is simply and indisputably an American. And that is part of our almost unique national identity.

The topic of birthright citizenship has become more controversial since President Donald Trump raised the notion of eliminating it with an executive order. Others have suggested that the President need not challenge the current interpretation of the 14th Amendment.  Instead, legislation, for example, could make it illegal to come to the U.S. for the sole purpose of giving birth, and highlighting to potential “birth tourists” the downsides to obtaining U.S. citizenship, such as taxation and possible conscription into the U.S. armed services, could depress the incentive to come to the U.S.

The stance against birth tourism will affect thousands of people, primarily from China, Taiwan, Russia, and Turkey, who want to be able to give birth to children who will be eligible immediately for U.S. passports and the attendant longer term benefits, even if they have no current intention of permanently residing in the U.S.

Travelling to another country for medical procedures, or medical tourism, is a growth industry both as an export and an import. U.S. citizens may travel for medical treatments that are less expensive and patients with means come to the U.S. for high-quality services that may not be available abroad. Paying full cost for the services provides a healthy stream of income for some U.S. healthcare facilities.

But high-quality medical treatment is not the only attraction for a particular type of medical tourist. As one of a few countries that grants citizenship to any person born on American soil, a cottage industry has developed around birth tourism. Pregnant women by the thousands from countries that includes China, Taiwan, Saudi Arabia, South Korea, Nigeria, Turkey, Russia, Brazil, and Mexico come to the U.S. every year to give birth to U.S. citizens.

Although President Donald Trump has railed against “anchor babies,” there is no law that prohibits foreign nationals from coming to the U.S. to give birth, although many end up committing immigration fraud by misrepresenting the purpose of their visits to gain entry or obtain an appropriate visa.

Some who come to the U.S. to give birth find themselves in less than ideal situations (in terms of housing and medical care) and may even be putting their babies at medical risk. But, for the wealthy among them, birth tourism can be a luxurious semi-vacation and an investment in the future for their children and their families. Spending up to $80,000 for birth tourism packages advertised online, these mothers-in-waiting also visit shopping centers and restaurants and contribute to the economy in the areas where they congregate, particularly in California, New York, and Florida.

U.S. officials, however, are cracking down on the birth tourism industry for tax fraud, contractual breaches, immigration fraud (helping birth tourists get visas under false pretenses), and even zoning violations. ICE officials have raided “birth hotels” in California and has been reported that at Los Angeles International Airport, CBP has been tightening security particularly for pregnant Chinese women who are trying to enter the country.

One of the biggest advantages of having a U.S. citizen child is that once that child reaches the age of 21, he or she could sponsor for a Green Card the parents who “gave” the child U.S. citizenship in the first place. That family unity benefit, called “chain migration” by Trump, is another one of the immigration programs that Trump would like to eliminate.


As President Donald Trump talks about ending birthright citizenship with an executive order, the Irish public is talking about restoring birthright citizenship.

Ireland ended the right to birthright citizenship in 2004 with a referendum. A proposed law would give anyone born in Ireland the right to Irish citizenship with one requirement – the individual must reside in Ireland for at least three years after birth. A recent opinion poll shows 71 percent public support in Ireland for the proposed law. Approximately 30 countries (out of close to 200), primarily in North America and South America, recognize birthright citizenship with no additional eligibility requirements.

Despite public support, the Irish government opposes the new law. People living in Northern Ireland (part of the United Kingdom) are entitled to both UK and Irish citizenship. The government fears that individuals living illegally in the UK would move to Northern Ireland, have children, and then parlay their children’s citizenship into obtaining residency in Ireland or even other EU countries post-Brexit. In other words, like Trump, the Irish government appears to fear the pull of “chain migration.”

In the U.S., birthright citizenship is based on an interpretation of the 14th Amendment to the Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Generally, this has been interpreted as a whole-hearted endorsement of birthright citizenship, and birthright citizenship has taken the status of a fundamental tenet in the United States. Some Republican members of Congress, however, following Trump’s lead, have questioned whether birthright citizenship applies to everyone under the Constitution. Senator Lindsay Graham (R-S.C.) is talking about introducing legislation that would limit birthright citizenship to the children of U.S. citizens and legal permanent residents. The argument for the constitutionality of such legislation is that the words “subject to the jurisdiction” in the 14th Amendment actually limit birthright citizenship.

The legislation that Graham is considering has little chance of passage at this time. But, if it were to succeed, it would shut down the so-called “birth tourism” industry in the U.S. Birth tourists are women who come to the U.S. for a “vacation” to give birth to children who will automatically receive the benefits of U.S. citizenship. Coming to the U.S. to have a child is not prohibited by law. Although some women coming to U.S. for this purpose find themselves in the hands of con-artists and scammers in less than ideal situations, many others can afford good medical care and luxurious accommodations.

President Donald Trump has issued an executive order striking the 80-percent/three-week goal for interviewing nonimmigrant visa applicants following submission of applications.

Since September 11, 2001, the State Department has given priority to security over quick visa adjudications. For many reasons, including heightened security, between 2001 and 2010, the U.S. share of the global tourism market had dropped markedly. The Obama Administration, concerned about the effect on the U.S. economy, took measures to “support a prosperous and secure travel and tourism industry in the United States.” The first steps were in 2010, when the National Export Initiative and the Travel Promotion Act became law. They mandated intergovernmental cooperation to work to establish a stronger brand identity for the U.S. and to promote exports. By 2012, President Barack Obama issued an executive order to continue the process of fostering more tourism and travel: Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness Order. One section ordered Consulates to “ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application, recognizing that resource and security considerations . . . may dictate specific exceptions[.]”

Although the Obama EO contained a security waiver, on June 21, 2017, Trump signed his own EO, striking the 80 percent/three-week goal. This is being done in conjunction with the travel ban partially reinstated by the U.S. Supreme Court and the extreme vetting procedures instituted by Secretary of State Rex Tillerson.

Pursuant to extreme vetting, if deemed necessary to determine eligibility, visa applicants may be asked to supply:

  • Travel history during the last 15 years, including source of funding for travel;
  • Address history during the last 15 years;
  • Employment history during the last 15 years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Names and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

Assessing this amount of information and data obviously will take time. A White House spokesman stated that the elimination of the “arbitrary” three-week goal was needed because “[t]he president expects careful, accurate vetting of visa applicants, not a rushed process . . . .”

Business groups already troubled about possible deleterious effects from the travel ban and extreme vetting have expressed concern about additional delays in visa issuance. According to State Department’s own data, the nonimmigrant visa issuance rate has been dropping. In March, 907,166 were issued and the number was down to 735,000 in April.

Members of Congress from states bordering Canada, the Northern Border Caucus, have focused on a section of President Donald Trump’s Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order directing DHS to expedite “the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States.” Calling it “unnecessary” on the northern border, representatives from New Hampshire, New York, North Dakota, Vermont, and Washington are concerned the system will lead to long lines and waits, interfere with commercial traffic, and damage tourism in their states.

In Buffalo, New York, there is bipartisan opposition to implementation of the biometric system. Representative Brian Higgins (D) believes the cost of implementation, $6.5 billion, will bring it to a halt when it comes to Congress for funding. In fact, that was where a similar proposal died two years ago. Representative Chris Collins (R) expressed particular concern about a reduction in sports tourism – reducing fan attendance at Buffalo Bills football and Buffalo Sabres hockey.

Because there is already a joint biometric entry-exit partnership agreement in effect between the United States and Canada, the Beyond the Border Action Plan, the Caucus has asked that the Administration do a careful cost-benefit analysis and coordinate with the Canadian government before instituting a costly enhancement.

The Canadian government, perhaps in reaction to Trump Administration policies, is considering legislation to expand preclearance at Canadian airports. Prime Minister Justin Trudeau suggested that Canadians would be better protected under the Canadian Charter of Rights if they cleared U.S. Customs on Canadian soil. But the measure would give CBP officers the right to question, or detain for hand-over to Canadian officials, any Canadian suspected of violating Canadian law. There is opposition. Canadian lawmakers are concerned about granting additional authority to CBP because the bill “does not address Canadians’ concerns about being interrogated, detained and turned back at the border based on race, religion, travel history or birthplace.”

Meanwhile, Canada is prepared to capitalize on the controversy swirling around the Trump Administration’s immigration policies. Trudeau has extended his welcome, and so has the City of Vancouver, just a two-hour flight from the Silicon Valley. Indeed, a Canadian start-up, True North, is introducing high-skilled foreign nationals and their companies to the advantages of having a back-up plan in Vancouver, providing introductions to Canadian immigration lawyers, and exploratory trips.

Please contact a Jackson Lewis attorney with any questions.