An “anchor baby” refers to a child born in the United States to parents who are not citizens of the U.S., but who automatically gains citizenship because the mother was present in U.S. territory at the time of the birth of the child. The child is considered the link or “anchor” for assisting its parents and other extended family members in legally immigrating to the United States.
When the child reaches the age of 21, they can petition the United States Citizenship and Immigration Service (USCIS) for immigrant status for their non-citizen parents. In addition, under certain circumstances, an undocumented alien or green card holder who may have a doubtful right to naturalization because of a criminal history can be helped in their cases by having a child born in the U.S.
A judge might grant legal status to an alien who would not otherwise obtain it, if they have a child who is a citizen. Also, some believe that authorities are less likely to deport an undocumented alien if the alien is the parent of a child who is a citizen.
What is Birthright Citizenship?
The 14th Amendment to the U.S. Constitution establishes so-called “birthright citizenship”. It provides that all people born in the territory of the U.S. are citizens.
The clause establishes that all people who are born in the United States automatically become U.S. citizens, regardless of the citizenship of the child’s parents.
Why are “Anchor Babies” Controversial?
The concern about birthright citizenship seems to be that giving birth to a child in the U.S. can become a pathway to eventual citizenship for the child’s parents. The parents may enter legally with a travel visa or illegally and without documentation. Then, if the parent entered legally, when the child reaches the age of 21, the child can legally take up residence in the U.S. and seek an immigrant visa for their parents and extended family members. It is one possible pathway to U.S. citizenship for the citizens of foreign countries.
If an undocumented alien has children who are citizens, then deportation is less likely and granting of permanent status may be more likely. Those who oppose immigration are opposed to birthright citizenship for these reasons.
Will the Constitution Be Amended to Change Birthright Citizenship?
At this time, there is no indication that there will be a change to U.S. Constitution, so as to eliminate birthright citizenship. Amending the U.S. Constitution is covered by Article V of the Constitution, and it is a difficult process. First, both chambers of Congress, the House of Representatives and the Senate, must pass any proposed constitutional amendment by a two-thirds vote. Congress may set a deadline for the states to vote on the amendment, but does not have to set a deadline.
Then the governors of all 50 states are notified of the passage of the amendment by the House and the Senate. The legislatures of the states then vote on the amendment as passed by Congress, without change. If the amendment is ratified by a three-fourths vote of a state legislature, the governor of the state does not have to ratify the amendment. It is accepted by a state upon the vote of the state’s legislature.
The Federal Register at the National Archives keeps track of the votes of the state legislatures.
Only when proposed constitutional amendments have been ratified by three-fourths of the states, or 36 states, can the amendment take effect.
Alternatively, legislatures in two-thirds of the states can petition the U.S. Congress to call a constitutional convention at which the Constitution might be amended. This has never happened in the history of the U.S., and it is unlikely to happen in the foreseeable future. Because of the difficulty of amending the Constitution, the 14th Amendment is unlikely to be changed to eliminate birthright citizenship.
In addition, the history of the 14th Amendment and birthright citizenship is a factor in making it extremely unlikely that it would be altered. It was adopted in 1868 as part of a package of Reconstruction Amendments after the end of the Civil War. The citizenship clause reversed part of the decision of the U.S. Supreme Court in the case of Dred Scott v. Sandford, in which the Court had declared that African Americans were not and could not become citizens of the U.S. The 14th Amendment bestowed full U.S. citizenship on all former slaves.
The authors of the 14th Amendment wanted to make birthright citizenship part of the Constitution, so that the principle would not be changed by either the Supreme Court or the Congress at a future time. Thus, it would be controversial to many to repeal birthright citizenship in light of the importance it had for former slaves at a critical moment in American history. In addition, it would be difficult for lawmakers to agree on an alternative basis for citizenship.
Finally, there are other ways to limit birth tourism by enacting laws, regulations and rules which would prevent it as explained below.
How Does the “Anchor Baby” Help Others Immigrate to the U.S.?
A foreign national who seeks to live permanently in the U.S. must have an immigrant visa. A foreign national may apply for an immigrant visa if they are sponsored by an immediate relative who is at least 21 years of age and is either a U.S. citizen or a lawful permanent resident, i.e. a green-card holder.
A U.S. citizen can petition for an immigrant visa for the following relatives:
• Spouse;
• Son or daughter;
• Parent;
• Brother or sister.
A lawful permanent resident can only petition for an immigrant visa petition for their spouse or unmarried children. So it is clearly advantageous for a parent who seeks an immigrant visa to have a child who is a citizen.
Also, a child who is a citizen can can become relevant when an undocumented alien is in the following situation:
- The alien is involved in a formal removal procedure;
- The alien has been continuously present physically in the U.S. for 10 or more years;
- The alien has not been convicted of certain criminal offenses, and
- The alien is a person whose removal would result in “exceptional and extremely unusual hardship” to a relative who is a citizen, including a child.
If all four of these criteria are met, an immigration judge has the legal authority to grant legal status to the alien. So, again, it can be advantageous to a long-term undocumented alien to have a child who is a citizen.
Is it Illegal for People to Come to the United States to Give Birth?
As of 2020 a rule was adopted which allows the denial of a tourist visa to applicants from nations other than the 39 mainly European and Asian countries enrolled in the Visa Waiver Program (which allows citizens of those countries to come to the U.S. without a visa for temporary stays). The rule also applies only to applicants for so-called “B” class visas that permit short-term stays for business or pleasure.
Pregnant women could be denied a visa unless they can prove both that hey must come to the U.S. to give birth for medical reasons and they have money to pay for their medical services. Or, if they have some other compelling reason for the trip, they might be given a visa, but not for the sole reason that they want their child to have American citizenship.
There have reportedly been cases in which the operators of birth tourism agencies or facilities in the U.S. have been arrested for visa fraud or tax evasion.
Do I Need an Attorney?
If you are seeking an immigrant visa for your parents or other family members, you should consult with an experienced immigration lawyer. An immigration lawyer can advise you of pathways to legal residence in the U.S. for relatives of citizens and green-card holders and can assist with claims, documents, and application forms.
Or if you are the undocumented parent of a U.S. citizen and are in danger of being deported, you should consult a qualified immigration lawyer as soon as possible. Your attorney can advise you and represent you if you need to appear at a hearing before an immigration judge.
