To briefly summarize the Yicai report, a crackdown by Hong Kong on Mainland birth tourists may increase current U.S. bound birth tourists. Already, a number of Chinese agencies with offices in China guide expectant mothers in applying for U.S. visitors’ visas on false pretenses, while hiding their pregnancies. The agencies also operate unlicensed "postpartum care centers" in residential U.S. neighborhoods, where the women are stashed for about four months while waiting to give birth and then to recuperate. These centers are a twenty-first century twist on the Chinese tradition of yuezi, during which a new Chinese mother confines herself to home to recover for a month after delivery. Several centers have been shut down in response to complaints of zoning violations and operating without a license. The mothers pay out of pocket for medical care or are coached by the centers on how to lie about their immigration status (and finances) to qualify for Medicaid.

Insight on Why These Mothers Give Birth in the U.S.

The Chinese birth tourists interviewed by Yicai.com seem fairly representative, and their motivations may surprise Americans. They’re typically relatively wealthy, and not seeking to stay in the U.S. This is consistent with reports in the New York Times (2011) and Washington Post (2010).

Rather than stay in the U.S., the mothers typically return to China with their children, where many go to great lengths to hide their child’s U.S. citizenship. China doesn’t recognize dual citizenship, so if discovered the child’s Chinese citizenship will be revoked. The child will need to apply for a Chinese visa. He or she will lose eligibility for government medical insurance and enrolment in public schools at local tuition rates. The child will be ineligible for most jobs in government or state-owned enterprises (not to mention Communist Party membership). And will be subject to the same restrictions on business and property ownership as other foreigners.

Why then give birth in the U.S.? The Yicai article mentions that some are taking advantage of a loophole in Chinese law: children born abroad are not covered by the one-child policy. Others are often motivated by wanting their children to have access to U.S. higher education. It’s also not uncommon to want a child to have a foreign passport just for protection against potential future instability in China. That’s consistent with the Times and Post articles. I’d add that some parents see the child’s foreign passport as a status symbol.

Serious Immigration Law Violations

A significant cause of illegalities in birth tourism is that the Chinese mothers "misunderstand" U.S. laws, according to Yicai. But the article itself misconstrues the severity of the mothers’ violations: "Usually, the expectant mothers who are going to the U.S. have valid visas. What they do in the U.S. is a violation of status but not illegal." The Post’s article quotes—without questioning—a similar statement by an agency: "We don’t encourage moms to break the law—just to take advantage of it…. It’s like jaywalking. The policemen might fine you, but it doesn’t break the law."

That’s so untrue. The agencies coach expectant mothers to lie in their visa applications about the purpose of their U.S. trip, then lie again when they tell the U.S. Customs and Border Protection inspector at the airport.

These misrepresentations, if discovered, make the mothers permanently ineligible for future visas (except in narrow circumstances). As a U.S. immigration lawyer based in China, I’ve advised a number of parents who’ve been caught after lying to the U.S. government. The result: their children born in the U.S. are citizens, but the parents are permanently barred from going to the U.S.

These misrepresentations are also federal crimes.
1) The visa application form, supporting evidence, and testimony to the consular officer are all made under penalty of perjury. Any applicant who willfully submits false information is subject to imprisonment for up to five years. 18 USC 1621, INA 287(b).
2) Any noncitizen who attempts to or does enter the U.S. by a willfully false or misleading representation or the willful concealment of a material fact is subject to imprisonment for up to two years. INA 275(a).
3) Any person who knowingly and willfully makes any false representation or makes or uses any false writing in connection with a visa application or entry to the U.S. is subject to imprisonment for up to five years. 18 USC 1001.

The agencies are subject to the same penalties, plus harsher ones related to alien smuggling, enticing the entry of illegal aliens, and harboring. A Taiwanese man is currently being prosecuted on related charges for hiding pregnant Chinese birth tourists in the U.S. Commonwealth of the Northern Marianas Islands (CNMI), according to the Associated Press.

It’s Possible to Get a Visa Legally for U.S. Maternity Services
 

Another thing missing in the Yicai article is an explanation that it’s possible to get a visa legally to travel to the U.S. for maternity services.

The State Department’s policy sets out the key requirements to qualify for a visitor’s (B1/B2) visa to travel to the U.S. for medical treatment:
 

1) The applicant must have a detailed treatment plan at a U.S. medical facility

2) The applicant must have the financial resources to pay for the costs estimated by that facility for the treatment.
3) The applicant must prove to the consular officer’s satisfaction that she intends to return to a permanent home abroad after a temporary stay in the U.S.

Consistent with that, an official at the U.S. Embassy in Beijing told the Post, "You don’t deny someone because you know they’re going to the U.S. to have children."

Inbound international medical tourism is a billion dollar per year industry according to the U.S. Commerce Department. Patients are drawn by the high standard of care at premier American hospitals like Cleveland Clinic, Harvard, UCLA Medical Center, Johns Hopkins, and Mayo Clinic. The hospitals find this business to be disproportionately profitable.

Of course not all Chinese agencies who employ shady agencies could meet these requirements, but more than a negligible number of the middle-class and wealthy clients of the agencies could do so.

And there are legitimate reasons for some Chinese women to want to come to the U.S. Just for example, women with medical conditions who could benefit from access to top U.S. hospitals. And women who are spouses of children of U.S. citizens who want to be with their relatives during labor and recovery.

How Should the U.S. Government Respond to These Agencies?

In comparison with Hong Kong’s robust response to Mainland birth tourists, the U.S. response is barely discernable.

If Yicai is correct that shady agencies are taking advantage of some Chinese women’s misunderstanding of U.S. law, then one step which the State Department should take is to warn them to steer clear of illegal practices and to explain how it may be possible to get a visa legally for U.S. maternity services. The websites of the U.S. Embassy in Beijing and the U.S. Consulates in Shanghai and Guangzhou don’t appear to have any information on this topic.

The State Department will need to coordinate its message with the message that U.S. Customs and Border Protection gives to visitor’s visa holders at the airport seeking admission. In fact, Customs’ website used to say that "coming to the U.S. for the purpose of childbirth is not a valid reason for travel." More recently, however, CBP has updated its website to be consistent with State Department policy, focusing on whether the expectant mother has the financial ability to pay for medical services and the intent to return to a permanent home abroad after a temporary stay in the U.S.

Of course not all these women are being hoodwinked by the agencies. Some are knowingly violating U.S. law. (From their perspective, the morality of violating this U.S. law may be indistinguishable from the morality of violating China’s population laws, like the one-child policy or the hukou laws, which restrict internal migration). Prosecutions of shady agencies, like the current case in CNMI, and even of some mothers who knowingly violate the law, are appropriate. Kill the chicken to scare the monkey, is the saying here.

And the U.S. State Departments of State and Homeland Security should reach out to the Chinese government for law enforcement assistance in combatting illegal activity by agencies, just as Hong Kong reached out to the central government in Beijing.

Recently, the debate about birthright citizenship (and the pejorative term, "anchor babies") has raged in the U.S. As the Times article notes, some political leaders have sought to change the 14th Amendment to the U.S. Constitution, which gives citizenship to any baby born in the U.S. "This feels like killing a fly with an Uzi," said Angela Kelley of the Center for American Progress to the Times. The recent measured success in Hong Kong is evidence that there are ways for the U.S. to address related abuses without a constitutional amendment.