National Review Online
Friday, January 24, 2020
The 14th Amendment states that “all persons born . . . in
the United States, and subject to the jurisdiction thereof, are citizens of the
United States.” Despite some debate over the meaning of the words “subject to
the jurisdiction thereof,” this has long been interpreted to mean that when an
immigrant gives birth here, the child is automatically granted U.S.
citizenship, regardless of the strength of the immigrant’s ties to this country
and even whether the immigrant is here legally.
One consequence of this rule is “birth tourism”: pregnant
women visiting the U.S. for the sole purpose of giving birth, so that their
children will have U.S. citizenship, complete with the ability, years later, to
sponsor additional relatives for citizenship. The State Department has
announced a new rule aiming to cut back on this practice, not by changing the
Constitution in any way, but by refusing to grant visas in cases where this
abuse seems particularly likely. The rule is sensible, though its effects may
be limited.
The policy pertains to temporary “B” visas, which are
granted, for example, to tourists and those seeking U.S. medical care. In
essence, the new rule says that birth tourism doesn’t count as traveling for
“pleasure” under the relevant statute, and directs consular officers to
determine whether birth tourism is the primary purpose of a visit. These
officers have been instructed not to ask women if they are pregnant “unless you
have a specific articulable reason to believe they may be pregnant and planning
to give birth in the United States” — but when there are signs that birth
tourism is afoot, the burden will fall on the traveler to prove a different
reason for the trip.
The rule still allows pregnant women to come for the
purpose of giving birth in U.S. hospitals for medical reasons, so long as they
are doing so because of the quality of care and proximity to their home
countries — and didn’t, for example, select the U.S. over another destination
because doing so would win the child citizenship. Those seeking B visas for
medical reasons will also have to demonstrate that they have arranged for care
and can pay for it.
This addresses a real, if hard to quantify, problem. Some
companies openly advertise birth-tourism services abroad, and there have been
numerous cases in which providers of these services have resorted to fraud and
other illegal activities. The Center for Immigration Studies estimates births
to women on tourist visas at 33,000 annually; the new rule, less precisely,
says “thousands” of women on B visas give birth here every year.
The main problem with the rule is that it may not prove
very effective. Like much of our immigration policy, it depends on consular
officers’ asking hard questions and judging the truthfulness of the replies,
and as the New York Times notes,
“some visas allow foreigners to visit the United States multiple times over the
course of as many as 10 years, so an applicant could be granted a visa, get
pregnant years later and still be permitted to visit the country.” Further,
this will of course not affect travel outside the realm of B visas, including
by those who come into the country illegally.
It will take a lot more than this to put much of a dent
in the practice of birth tourism. But as far as the rule goes, it’s entirely
correct: If the primary purpose of someone’s visit is to give birth in the U.S.
and gain citizenship for the child, that person should not be given a B visa.
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