Shady Chinese Agencies Promoting U.S. Birth Tourism–Part 3: Policy Responses

This three-part series looks at shady Chinese agencies promoting U.S. birth tourism.

Part 1 is an English translation of an investigative report about these agencies by Yicai, a Chinese financial news website. It focuses on the motivations of the intended parents from Mainland China.

Part 2 discusses Hong Kong’s struggle with the problem. A crackdown by Hong Kong on Mainland birth tourists is reportedly increasing the flow to the U.S.

This Part 3 discusses possible U.S. policy responses.

Why The Parents Give Birth in the U.S.

The Chinese birth tourists interviewed by Yicai seem fairly representative, and their motivations may surprise Americans. They’re typically relatively wealthy, and not seeking to move to the U.S. (at least right away). This is consistent with reports in the Washington Post (2010), New York Times (2011), and Guangzhou New Express (2013).

Until recently, a key reason to give birth abroad was to take advantage of a loophole in Chinese law: children born abroad are not covered by the one-child policies of most provinces. Giving birth to a second child within China could result in a substantial fine or loss of a job in government or state-owned industry. But, in a Nov. 15, 2013, announcement after the Communist Party’s policy-making Third Plenum, the Party said it would loosen the policy: married couples may have a second child if one of the parents is an only child. (Previously, both parents had to be only children to qualify for a second child). This revised family policy may lessen birth tourism somewhat.

Many parents have additional motivations for birth tourism. There are both push and pull factors:

• Some want their children to have access to free K-12 education and the U.S. higher education system. They complain about the quality and hyper-competitiveness of the Chinese education system, which emphasizes rote memorization.
• Other parents are planning ahead for their own retirement: they realize that the so-called “anchor baby,” once age 21 can petition for them to immigrate to the U.S. This is part of the agencies’ marketing pitch, according to the Guangzhou New Express article. Given the shortcomings and uncertainties in China’s social insurance system, long-term planning for a U.S. retirement isn’t an illogical choice.
• Some parents see the U.S. environment as better than China’s polluted metropolises.
• It’s also not uncommon to a foreign passport as a hedge against potential future instability in China. (The state-controlled media often re-frames this issue, saying that many corrupt officials and business persons flee abroad to evade anti-coruption investigations).

Growth of the Industry

There don’t appear to be any reliable estimates of the scope of the birth tourism industry. One law review article estimaties 40,000 children born to birth tourists per year. Agencies charge their clients up to $60,000 for the service.

There are “scores, possibly hundreds, of companies operating” post-partum care centers (also called “maternity hotels” or “birthing centers”) in Southern California alone, according to the Los Angeles Times.

One agency alone, AiBeiShe (爱贝社), claims it has 300 clients at a time at centers in Los Angeles either about to give birth or recovering from delivery. Another, Star Baby Care, claims it has served 8,000 pregnant women since 1999. The centers even have a trade group, the All-America Mother and Infant Association (全美母婴协会), reports Guangzhou New Express.

Competition is fierce among agencies in China that promote birth tourism. Most agencies have branches in the big cities of Beijing, Shanghai, Guangzhou, and Shenzhen, and are in the process of expanding to second- and third-tier cities, according to Guangzhou New Express. One agency, MeiGuoZhiJia (美国之家), says it has a staff of 100 in China, according to Guangzhou New Express.

Chinese Birth Tourism Agencies Train Intended Parents to Misrepresent the Purpose of Their Travel

Chinese birth tourism agencies are commonly misunderstood as taking advantage of a “loopholes” in U.S. law. For example, Tea Leaf Nation’s Look Who Is Walking (Away with U.S. Passports) (Apr. 28, 2014) states that birth tourism “is not illegal.” Similarly, a Washington Post article quotes an agency’s assertion that: “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.” And an article in China’s Yicai claims that birth tourism somehow is a “violation” but “not illegal.”

In reality, the agencies’ business model is to coach expectant mothers to lie about the purpose of their trip to the U.S. consular officer when applying for a B1/B2 visitor’s visa, then again to the U.S. Customs and Border Protection (CBP) inspector at the airport. This violates U.S. criminal and immigration laws.

In March 2015, the U.S. Department of Homeland Security applied to the U.S. District Court for the Central District of California for a warrant to search the premises of USA Happy Baby, Inc. The agent’s affidavit in support of the warrant alleged that the company “commit[s] immigration fraud by bringing and harboring pregnant Chinese foreign nationals in the United States for the sole purpose of giving birth … while misrepresenting the true intention of their visit to the United States.” Often, the women state in their visa application that they intend “to travel to the United States for a short vacation period, often to a tourist attraction.” The agent’s affidavit emphasizes that the visa applications commonly misrepresent the intended period of stay and intended U.S. address.

The standard answer expectant mothers are told to memorize for the visa interview and for immigration inspection at the arrival airport is that they’re going to the U.S. for tourism (旅游 lvyou). The birth tourism agency’s coaching covers intricate details down to how to dress to hide the pregnancy. Such coaching is an integral part of the agencies’ services. One agency boasted to the Guangzhou New Express that they employ a retired employee of the U.S. Consulate to provide such training.

China’s state-owned Legal Daily newspaper reports about one unnamed agency:

When applying for the visas, some will truthfully explain that their purpose is to go to the United States to give birth. This is called an “honest visa.” Another way is to do one’s best to hide one’s purpose, just saying one is traveling for tourism. “Most can only say their purpose is tourism, and they had better hide their pregnancies.” The employee explained that to qualify for an ‘honest visa’ the family must be fairly wealthy. “They must be able to prove that they will not rely on U.S. welfare.” And they must prove they have no immigrant intent, so they will leave the U.S. after giving birth. “Truthfully, the rate of approval of approval of ‘honest visas’ is fairly low, and the requirements are fairly high, so with the exception of clients whose economic situation is very good, we recommend that most hide their intent to give birth.”

A visa applicant is required by law to reply truthfully to a consular or CBP officer’s questions regarding the purpose of their trip. 8 C.F.R. 214.1(f); 22 C.F.R. 41.103(b)(2). Misrepresentation, if discovered, makes a person permanently ineligible for future visas (except in narrow circumstances). See INA 212(a)(6)(C)(i) (making permanently inadmissible to the U.S. “any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure … a visa … or admission into the United States”). Misrepresentation by a birth tourist may also constitute federal crimes such as perjury,  immigration fraud, and making a false statement to the U.S. Government.

Where an agency persuades a customer to make such misrepresentations, the agency may also be subject to harsher penalties for alien smuggling, enticing the entry of illegal aliens, and harboring.  In particular, the crime of “bringing in and harboring certain aliens” under section 274 of the Immigration and Nationality Act (8 U.S.C. 1324) is committed when a person “encourages or induces” a noncitizen to come to or enter the United States, knowing or in reckless disregard of the fact that it will be in violation of law. The penalty is imprisonment for not more than 10 years.

These are likely among the charges that will stem from the March 3, 2015, raids in Southern California. According to the Associated Press, a Taiwanese man has also been prosecuted on related charges in the U.S. Commonwealth of the Northern Marianas Islands (CNMI), where U.S. immigration law applies.

The U.S. Government Should Warn the Public and Step Up Enforcement

In China, birth tourism is featured in the news and portrayed in film. Now that Hong Kong has cracked down on Mainland birth tourists, the U.S. has become a popular destination.

Local governments in California have taken steps to shut down illegally operated post-partum care centers (月子中心) that cooperate with the Chinese birth tourism agencies. In 2013, Los Angeles County shut down about 18 such centers over zoning violations. In CNMI, where 71% of children born last year had Chinese parents, the government has reached out to airlines, asking them to be more vigilant about birth tourism. CNMI has also reached out to the Chinese government.

But unlike the Hong Kong’s robust enforcement, the U.S. Government’s has been lackadaisical. The State Department’s website, as well as the U.S. Embassy in Beijing’s website, fail to warn expectant mothers that if they seek a B1/B2 visitor’s visa to give birth in the U.S. they should follow the rules regarding visitors for medical treatment and avoid misrepresentation. Such warnings would benefit expectant mothers.

State Department and CBP policies on using the B1/B2 visitor’s visas to obtain medical treatment in the U.S. These policies require that:

• The applicant must present a detailed treatment plan at a U.S. medical facility.
• The applicant must prove financial resources to pay for the costs estimated by that facility for the treatment.
• 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.

Targeted prosecution of birth tourism agencies coaching expectant mothers to lie to the U.S. government is appropriate. Such agencies are “snakeheads,” the Chinese term for organized criminal enterprises that smuggle their customers into the U.S. Photos of agents in handcuffs may counter the message Chinese receive in romantic comedies about birth tourism.

Also, perhaps, the Form DS-160, Nonimmigrant Visa Application, should include the following question for B1/B2 visitor’s visa applicants: “Do you intend to seek medical treatment in the U.S., including but not limited to medical services in connection with birth of a child?”

There’s no need to take the draconian measure of banning pregnant women from visiting the U.S.  Women, including pregnant women, should of course be welcome as visitors. (One pending federal lawsuit alleges mistreatment.)

Recently, the debate about birthright citizenship has raged in the U.S. Many justifiably feel that the right to determine who can gain citizenship, thereby entering into our political community, shouldn’t be determined by shady birth tourism companies. Some political leaders have sought to change the Fourteenth Amendment to the U.S. Constitution, which gives citizenship to any child born in the U.S. “This feels like killing a fly with an Uzi,” as Angela Kelley of the Center for American Progress to the New York Times. There are better ways to address the problem.

My Advice to Intended Parents

As a U.S. immigration lawyer based in China, I advise clients to be truthful to the State Department and CBP about the purpose of their trip to the U.S.

I’ve also advised a number of parents who’ve already been permanently barred from going to the U.S. as a result of being caught lying to the U.S. government about the purpose of their travel. It’s easy for the U.S. Embassy to catch them: identifying information for the parents is submitted to the State Department when they apply for their child’s U.S. passport. The parents are often devastated when they learn they are permanently barred from the U.S. They may own houses or businesses in the U.S. that they will never see again. And, if their children are studying in the U.S. and there’s a medical emergency, the parents are unable to go to the U.S. to be by their side.

It’s also not easy for children born in the U.S. to grow up in China. China doesn’t recognize dual nationality, so children with foreign passports will not be granted the rights of PRC citizens, such as issuance of a family registration booklet (户口 hukou). A child without a hukou will be ineligible 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). With no hukou, the child can’t even get the national ID card required for almost any transaction.

There are times when it makes sense for Chinese parents to give birth in the U.S. For example, some women with high-risk pregancies could benefit from access to top U.S. hospitals. Women who are spouses or children of U.S. citizens or permanent residents may want to be with their relatives during labor and recovery. And some infertile or LGBT couples would benefit from gestational surrogacy in the U.S since it’s banned in China.

In such cases, where State Department and CBP policy are complied with, the U.S. benefits too. 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.