Birth tourism is not illegal and there are no laws prohibiting foreigners from traveling to the United States (US) to give birth. Children born in the US are automatically US citizens, according to the country’s constitution.

However, in an attempt to gain citizenship through birth, parents who desire having their children born in the US often commit immigration fraud and exploit the healthcare system.

ILLEGAL ACCESS

The US 14th Amendment grants citizenship to ‘all persons’ born on US soil, regardless of whether laws were broken by the parent on a tourist visa.

The US is in the minority of countries that still grant birthright citizenship. Research has shown that a ‘vast majority’ of pregnant women hoping for an American child when visiting the country misrepresent the purpose of their visit at the port of entry or to gain a tourist visa.

This misrepresentation, if discovered, will be seen as a false declaration, which is a criminal offence and can lead to revocation of visa.

COSTS

The following are the potential costs involved in delivering a child in the US, which can vary depending on whether there are complications, for example:

1. Vaginal delivery, no insurance, no complications, 2 days in hospital—between 15,000 and 25,000 US dollars.

2. C-section, no insurance, no additional complications, 3 days in hospital— between 30,000 and 40,000 US dollars.

A TYPICAL SCENARIO

Mary held a 10-year multiple entry B1/B2 visa. During the time her visa was valid she visited the US at least twice per year and stayed no longer than two weeks each time.

Nine years ago, Mary fell pregnant and decided to give birth in the US. At the six-month stage of her pregnancy, Mary left Jamaica for the US and did not declare to the border officer that she intended to remain in the country to deliver her baby.

At nine- months, her baby was born but she did not settle her hospital bill. Mary was discharged and applied for the child’s US passport. Upon its receipt, she returned to Jamaica with her baby, who is now a US citizen.

Years later Mary realised that her visa was about to expire and applied to the US Embassy in Kingston for a renewal. Her application was denied on the grounds that she had failed to provide proof of paid hospital bills for the birth of her child eight years previously.

Mary is upset because she is of the view that the consulate officer was unreasonable in asking her to provide hospital receipts. Mary’s husband is also at risk of losing his visa.

THE PROBLEM

Mary was expected to pay delivery expenses for a pre-planned birth in the US. If a hospital thinks parents cannot pay, they may offer federal tax-funded Emergency Medicaid.

While it may be tempting for the parents to allow US taxpayers pay this five-figure bill, doing so puts future visa renewals at risk as US consulates do not like birth tourists taking advantage of a programme intended for genuine emergencies to US citizenship for their children. Therefore, a consular officer will often ask to see hospital receipts from B1/B2 visa holders with US-born children, before renewing their visas. This is to ensure that foreigners do not obtain the benefits of US citizenship, as this drains resources intended for citizens.

Additionally, when Mary enters the US and falsely declares another reason for entry other than that of giving birth, her action would amount to misrepresentation which is a criminal offence pursuant to US immigration laws.

As a consequence, both Mary and her husband’s visas are at risk. This risk of visa revocation can occur at the renewal stage or during the course of travel once discovered.

MARY’S HUSBAND

US immigration law requires both parents’ signatures on the passport application for a child. When one parent is absent, they must consent in writing, and this consent must be signed by a Notary Public and/or Justice of the Peace.

Because he gave consent, Mary’s husband must provide proof of hospital bills being paid before his visa renewal is considered. Failure to do so may result in his visa not being approved unless he can show other evidence as to why he should not be penalized for Mary’s actions.

THE CORRECT PROCEDURE FOR GIVING BIRTH IN THE US

First, it is important to note that having a visa is not a guarantee that you will be granted entry to the US at the port of entry.

To maximise your chances for entry into the US with your visa, you will need to:

a. Have a doctor who has consented to handling your care while in the US. You also need to know the doctor’s fees and have an appointment booked. You will need to carry with you physical evidences of these.

b. Be aware of the total costs of giving birth in your planned city of residence for an international (thus cash-paying) patient and have those funds with you in a physical verifiable form during your trip. Funds in debit or credit card accounts cannot be verified and this may lead to you being turned back at the port of entry.

c. Inform the embassy of your new intention to give birth if it was not shared during your visa interview. This needs to be done prior to your trip and can be done via email. You must carry proof of this declaration with you during your trip.

d. Show that you plan to return to your home country after your visit, by having a return ticket.

RECOMMENDATION

Once you have followed the proper procedure to give birth in the US, it is recommended that hospital payment receipts are kept either electronically or in a file containing everything relating to the birth of your child/children. This is because you may need to provide receipts should you decide to renew your visa at a later date.

REMEDY

A visa is a privilege, not a right. Therefore, if your visa application is unsuccessful you cannot appeal the consulate’s decision by obtaining an attorney-at-law or asking the Ministry of Foreign Affairs to appeal on your behalf in the above instant.

Second, if you are denied a visa because of misrepresentation or failure to provide hospital receipts, the only solution is to wait for the child to attain the age of 21 years to petition for a green card on your behalf, provided that US immigration laws have not changed in the meantime.

Venice Williams-Gordon is an Attorney-at-Law and Partner at Lewis, Smith, Williams & Company. She can be contacted at;: vwilliams@lswlegal.com