Migration strategies across the world have increasingly produced pathways by which individuals acquire legal benefits across jurisdictions.
One such method is citizenship by birth in countries that adhere to the constitutional doctrine of jus soli, granting citizenship to persons born within a country’s territory regardless of the immigration status of their parents.
The United States remains one of the few jurisdictions that continues to grant birthright citizenship under the Fourteenth Amendment to the United States Constitution, thereby incentivizing some foreign nationals to enter the country for the purpose of childbirth, with the intention of conferring citizenship on the newborn.
The Citizenship Clause expressly provides that “All persons born or naturalized in the United States are citizens of the United States.” This constitutional guarantee forms the legal foundation upon which the practice commonly referred to as birth tourism rests, rendering childbirth within U.S. territory lawful regardless of parental immigration status.
However, the legality of birthright citizenship must be distinguished from the legality of how entry into the United States is procured. Under Section 212 of the Immigration and Nationality Act (INA), any noncitizen who seeks to procure a visa or admission into the United States through wilful misrepresentation of a material fact is inadmissible.
The U.S. Attorney General, in Matters of S- and B-C-, 9 I. & N. Dec. 436 (A.G. 1961), established the governing materiality standard, which remains foundational in U.S. immigration law.
A misrepresentation is deemed material if it tends to mislead a line of inquiry relevant to an applicant’s eligibility, and if that inquiry might well have resulted in a proper determination of inadmissibility.
Importantly, the government is not required to prove the individual would have been found inadmissible. It is sufficient to demonstrate a further inquiry could have uncovered disqualifying facts.
Recent regulatory developments reinforce this position by clarifying that where childbirth constitutes the primary purpose of travel, a visitor’s visa may be denied, and admission at a port of entry may likewise be refused. In this context, a foreign national who conceals an intention to give birth in the United States may be found to have engaged in wilful misrepresentation, thereby triggering inadmissibility consequences.
Beyond immigration violations, a less examined but equally significant dimension of birth tourism lies in tax compliance. In the United States, Social Security numbers are issued to children at birth, and a qualifying child must reside with a taxpayer for more than six months within a given tax year to be claimed as a dependent.
In many birth tourism scenarios, however, such children reside outside the United States for most of the year and therefore fail to meet the statutory residency requirement. Despite this, some U.S.-based taxpayers, with the knowledge and concurrence of the child’s mother, proceed to claim these children as dependents to obtain refundable tax credits.
Such conduct constitutes a false statement under penalty of perjury and exposes the taxpayer to significant legal liability, including potential prosecution for tax fraud.
The immigration consequences are equally severe. An establishment of fraud or wilful misrepresentation may give rise to a finding of a crime involving moral turpitude (CIMT) which is a category of offenses that has long been held to encompass fraudulent conduct.
In 1951, the U.S. Supreme Court affirmed fraud offenses inherently involve moral turpitude in the Jordan case. Accordingly, misrepresentation and tax fraud are not mere administrative infractions. They are serious legal violations that may result in inadmissibility, deportation, and denial of naturalization based on a lack of good moral character.
While birthright citizenship remains constitutionally protected in the United States, the exploitation of this doctrine through misrepresentation and fraudulent tax practices undermines immigration integrity.
Individuals who engage in such conduct risk severe legal consequences that far outweigh any perceived benefits.
A clear distinction must therefore be drawn between lawful entitlement and unlawful conduct. The pursuit of immigration benefits must always be grounded in transparency, compliance, and respect for the rule of law.
Be informed and forewarned!
Jonathan Balinia Adda, Esq.
Houston, Texas.
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