American Childbirth Visa Policy, Process and Requirements

Overview

Though actual numbers are difficult to determine, it is a well know fact that thousands of couples and single women from around the world travel to the U.S. to give birth each year. “Birth tourists,” as they are often termed, most often come from China, Taiwan, Russia and Mexico with smaller numbers arriving each year from other nations. Though it is the subject of some controversy, traveling to the U.S. to deliver a child is a perfectly legal thing to do provided the prospective parents honestly present themselves during the American Childbirth Visa application process and otherwise meet all American Childbirth Visa criteria. Requirements for an American Childbirth Visa are straightforward and not overly burdensome. Children born in the U.S. receive all the benefits of American citizenship but may lose certain benefits of citizenship in their parents’ home country.

American Childbirth Visa Policy

The “Citizenship Clause” of the United States Constitution, Amendment XIV, Section 1, Clause 1, is as follows: “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.” In the 1898 case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), the United States Supreme Court confirmed that children born within the territory of the United States of foreign parents are in fact American citizens. The ruling is broadly applied in favor of granting citizenship. The U.S. State Department’s Foreign Affairs Manual (“FAM”),  7 FAM 1111(d)(2)(a)(b) instructs Consular Officers that under Wong Kim Ark , (a) “Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that (b) child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction.  This is so even if the child’s parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States.”

“Birthright citizenship,” as it is commonly known, has been occasionally criticized by American jurists. In Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003), well respected Justice Richard Posner specifically quoted a derogatory reference to “a huge and growing industry in Asia that arranges tourist visas for pregnant women so they can fly to the United States and give birth to an American” as support for his position against birthright citizenship. Most often criticism has come from politicians who seek to gain popularity among native voters who see immigration as a threat to traditional culture and economic growth. Specifically, Republican presidential candidate Donald Trump suggests that Congress could pass a law which would retroactively strip citizenship from the children of non-citizens. Former Republican Presidential contender Jeb Bush, son and brother of the former presidents Bush, became embroiled in controversy over his use of the term “anchor baby,” a pejorative term which refers to children born in the U.S. to foreign parents for the supposed purpose of securing immigration benefits for the parents and other family members, in a campaign appearance in August 2016. In response to allegations that his use of the term was derogatory to Hispanics, according to CNN, Bush attempted to clarify his statement  that “anchor babies” were “frankly more related to Asian people.”

In spite of occasional criticism and failed legislative attempts at repeal, the precedent set by the U.S. Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898) stands firm. It is unlikely that even an act of Congress that is approved by the President could limit the citizenship rights of those born in the United States of foreign parents whatever the immigration status or citizenship of the child’s parents, In my opinion and that of many other immigration practitioners, a Constitutional Amendment would be necessary. Based on the established law as acknowledged by the U.S. Department of State, traveling to the United States for purposes of giving birth is not illegal nor is it taking advantage of a “loophole” in the law. It is a fully legitimate non-immigrant activity and purpose of travel for which the American Childbirth Visa is readily available to qualifying couples and mothers.

American Childbirth Visa Requirements

Applicants for the American Childbirth Visa must meet the general criteria for issuance of an American Travel Visa. These criteria are explained in detail in our blog post American Travel Visa Requirements and Process. The primary consideration relates to Section 214(b) of the United States Immigration and Nationality Act which requires that Consular Officers assume that every visa applicant intends to leave his or her home country and immigrate to the United States.  The applicant must convey during the interview that this presumption of immigrant intent is not true. The Consular Officer must be convinced that the applicant:

  1. Has a home outside the United States that they will not abandon;
  2. Is visiting the United States temporarily and will leave when the stated purpose of travel is complete;
  3. Is able to pay for the trip; and
  4. Meets the requirements of the visa type for which they are applying, and/or that planned activities in the U.S. are allowed by that category.

American Childbirth Visa applicants must also meet additional requirements that commonly apply to the American Medical Visa. These requirements are fully set forth in our blog post American Medical Visa Process, Requirements and Service. In summary, the American Medical Visa requires that the applicant meet all requirements of the American Travel Visa as listed above while also showing that 1) the applicant has a detailed treatment plan at a U.S. medical facility; and 2) that the applicant has the financial resources to pay for the costs estimated by that facility for the treatment. In contrast to the American Medical Visa, the American Childbirth Visa does not require an applicant to present a home country medical diagnosis or show that treatment is not available in their home country.

Our Service

The Immigration Law Office of L. Ford Banister, II is pleased to provide American Childbirth Visa application and interview preparation and review as well as ancillary legal support and due diligence services for American medical visa applicants and their family members. We guide you through the American Childbirth Visa application process so you can focus all of your energy on your upcoming delivery without needing to worry. Contact Us Today for a Free Consultation.