“Anchor Babies” in the News: The Pregnancy Path to U.S. Citizenship

asianbabyEvery law seems to have unintended consequences. The original intent of granting citizenship to every baby born on U.S. soil (done within the 14th Amendment to the U.S. Constitution) was to avoid creating an underclass, particularly among people who were brought to the U.S. as slaves.

(Congress was responding to the infamous Dred Scott decision of 1857, in which the U.S.  Supreme Court denied citizenship rights to freed slaves.)

Now, however, a cottage industry has seemingly developed to assist people from outside the U.S. — particularly from Asia — to come here on temporary visas in order to give birth to new little U.S. citizens.

The price tag for such “maternity hotel” services tends toward the tens of thousands of dollars. The fee covers travel and visa arrangements, medical care, and more. (See, for instance, “Giving birth in U.S. to get babies citizenship draws suspicion” and “In suburbs of L.A., a cottage industry of birth tourism” and “Chinese birth tourism booms in Southern California.”)

One such service reportedly advertises, “We guarantee that each baby can obtain a U.S. passport and related documents.” That’s not a hard guarantee to make, given the Constitutional backing!

Some of the reasons expectant parents give for wanting to give birth in the U.S. have immediate or short-term utility. For example, interviewees from China mentioned goals such as as circumventing that country’s one-child restrictions, or wanting to ensure that their child will be able to study in the U.S. or have the protection of the U.S. government in times of difficulty.

Other reasons, however, are remarkably long-term in scope. The families are creating an “anchor” for future U.S. immigration — and it’s one that can’t help them until the child turns 21.

To be clear, having a child who is a U.S. citizen does NOT provide any immediate rights to live or gain status in the United States. Only a U.S. citizen who is age 21 or over can petition his or her parents for U.S. lawful permanent residence (a green card). That application process alone will likely take at least a year.

What’s more, if the little citizens’ parents were to take a chance and attempt to remain in the U.S. illegally for the requisite 21 years, they’d become “inadmissible” — that is, ineligible for a green card — based on their history of unlawful presence here. (In fact, the “birth tourism” agencies likely warn the parents of this, since reports have it that they fly home soon after the births.)

There’s nothing in U.S. immigration law that expressly forbids birth tourism. Arguments could be made that the parents are committing visa fraud by claiming to enter as “tourists.” Still, even if the immigration enforcement authorities push this point, a finding that the parents’ committed visa fraud won’t negate the children’s status as citizens. (It will, however, make the parents inadmissible and unable to receive any U.S. visa or green card in the future.)

Whatever one might think of the practice of birth tourism, we’ve got to admire that level of long-term planning!