Birth Tourism and the Gaps in Immigration Law

In 2013, Dong-yuan Li stumbled upon a loophole while navigating the American border during a layover. She was helping pregnant women from China, booking them flights that first took them to Honolulu before heading on to Los Angeles International Airport (LAX). Li discovered that Chinese nationals arriving in Hawaii faced less scrutiny than those entering California, so that’s how she facilitated their travels.

Li operated a company called You Win USA Vacation Services, claiming a vast network of staff and clientele. With advertisements boasting a team of 100 across two nations, the business secured over 500 clients and maintained twenty apartments in Irvine, California. Interested clients paid between $40,000 and $80,000 for accommodations, plans, and advice on how to present themselves to consular officers. Incredibly, she transferred three million dollars from China over two years. When authorities searched her multimillion-dollar home in Irvine in 2015, her husband dismissed the birth tourism operation as small change compared to over ten million dollars in their Chinese bank accounts.

Having spent my career enforcing immigration laws, I find it concerning not just that Li was able to build such a business but also the charges we could finally bring against her once she was caught.

Now, let’s talk numbers. The Centers for Disease Control and Prevention (CDC) recorded about 9,600 births in 2024 to mothers residing outside the U.S. Meanwhile, the Migration Policy Institute suggests that between 22,000 and 26,000 births annually are a result of intentional birth tourism. While this seems significant, even the highest estimate is a mere fraction—well under one percent—of the 3.7 million American births. It’s important to acknowledge that this isn’t exactly transforming the fabric of our society.

However, focusing solely on size is misguided. We don’t overlook marriage fraud simply because most marriages are legitimate; we recognize it as a crime because it undermines the sanctity of something that should be genuine. That’s outlined in law 8 U.S.C. 1325(c): marrying for immigration benefits is a felony, punishable by up to five years. The act itself constitutes the crime, regardless of deception.

But there isn’t a comparable law regarding gaining U.S. citizenship through childbirth.

This discrepancy is central to my argument. One doesn’t need to have a specific stance on immigration to find it peculiar. Both scenarios aim to leverage significant life events to secure permanent status, yet Congress criminalizes one while leaving the other largely unaddressed—only prosecutable if there’s blatant fraud.

Unlike tourists who can be denied visas for misrepresentation, those looking to give birth in the U.S. encounter ambiguous regulations. Since January 2020, a rule from the State Department has made it clear that using childbirth to acquire citizenship is not a valid tourist visa reason. Consular officers are prompted to assume this is the intent if they suspect the applicant may give birth during their stay. However, this applies purely to the visa application process and does not influence regulations at airports or affect travelers from Visa Waiver countries, who aren’t interviewed by consuls beforehand.

This summer, the administration escalated efforts against birth tourism. An executive order issued in August instructed the State and Homeland Security departments to deny or revoke visas, turn applicants away at the borders, and pursue those facilitating birth tourism. Shortly thereafter, a Birth Tourism Prevention Task Force was established, reporting nearly 900 visa revocations by late August. An additional order sought to disallow recognition of citizenship for children born under these circumstances, but it was blocked by a federal judge, citing an existing Supreme Court decision on the matter.

All of these actions share one commonality: they are visa-based enforcement measures. They target clients and rely on uncovering falsehoods. Although 900 revocations signify active enforcement, they don’t translate to prosecuting the brokers responsible. When authorities targeted Li and her associate, they were still limited to charges of visa fraud and money laundering.

Congress has taken notice, with three bills currently in front of Judiciary committees. Senator Marsha Blackburn introduced the Ban Birth Tourism Act of 2026, backed by several Republican co-sponsors, while Representative Rich McCormick presented the House counterpart the following week. These bills propose to classify birth tourism as grounds for exclusion and deportation, contingent on an official’s judgment regarding potential birth within ten months of arrival.

Senator Tim Scott introduced a third bill on September 24, aiming to cement the 2020 State Department presumption into law, extending its application to Visa Waiver Program participants, facilitating additional inspections for suspicious cases, and enabling expedited removal. Notably, Scott’s proposal would amend criminal law to explicitly address those who organize or profit from birth tourism, using You Win USA as a reference.

While Scott’s bill incorporates a crucial missing element in the conversation, it still hinges on similar pregnancy-related criteria that the others do. Blackburn’s measure relates to women likely to give birth soon, while Scott’s presumes intent based on expected childbirth during their stay. Adopting pregnancy-based regulations could save officials from guessing individuals’ intentions, but it also complicates enforcement because not every woman shows signs of pregnancy immediately, and many are uncertain in the early stages themselves.

This could lead to a law that, while uniform in wording, might operate differently for various individuals. Large operations would adapt quickly, as evidenced by Li’s previous exploits through Honolulu.

Instead, we should craft legislation that addresses actions. Were fees paid to brokers? Did the individual stay in arranged maternity housing? Was money wired to an operator? Did their travel routes intentionally avoid scrutiny? These elements leave a traceable path and were crucial in the successful conviction of Li and her partner for activities dating back to 2012. I would fine-tune Scott’s criminal provision since tying the offense to “birth tourism” still necessitates proving what the traveler was thinking. It would be far more effective to focus on the seller’s behavior instead: selling a package designed around childbirth in the U.S. with intentions of facilitating deception. Proving intent should not be the requirement; rather, the focus should be what was actually sold. The implications for clients should rely on existing immigration laws without needing to craft a new one, placing responsibility where it rightly belongs—with the seller.