← Duologue with Leslie Heaney
Duologue with Leslie Heaney
U.S. Immigration Explained: What the Line Actually Looks Like | Bo Cooper & Austin Fragomen
01:09:12
Leslie sits down with two of the country's most respected immigration attorneys — Bo Cooper, former General Counsel of the U.S. Immigration and Naturalization Service, and Austin Fragomen, of the global immigration law firm Fragomen — to walk through...
Loading summary
Transcript224 lines
- [00:03]
Leslie Heaney
Hey everybody, it's Leslie and you're listening to Duologue with Leslie Heaney. Last August, I went to Dallas for a podcast conference and got stuck in traffic and ended up having one of the most informative and wonderful conversations with my Uber driver, Ahmed, who has come here to the US From Afghanistan. He was a translator who was embedded with the Marines and he was able to get out with his wife and children before the US withdrew. However, many of his colleagues who also helped the Americans were left. Hearing about his experience, along with seeing all that we all see on the news about our immigration policy, got me wondering about what more I needed to learn on the subject. Perhaps, like me, you've wondered what the legal path looks like to emigrate to the US or who can come to the US to live and work and for what reason. Or maybe you're curious about what the path to citizenship looks like. Or what about for people who are from war torn countries? How are they able to to come here to seek asylum? For answers to these questions and a real landscape of US Immigration policy, I'm so honored to have two incredible experts in this field on the podcast. Attorneys Austin Fragaman and Bo Cooper of Fragaman Law Firm. Austin is the Chairman Emeritus of Fragaman, which is one of the world's leading immigration law firms with over 5,500 professionals across 170 countries. Austin's also testified before Congress on immigration policy. Bo is a partner at Fragaman's Washington, D.C. office where he advises corporations, universities, hospitals, individuals on complex immigration matters. In this episode, Austin and Beau and I talk about what circumstances people can apply for legal residency in the us we talk about wait times and what the process is to apply for citizenship
- [01:48]
for green card holders.
- [01:49]
We cover work visas, refugees, asylum, and what's happening currently with deportations. I also take a moment to ask these two experts who've done this work for decades how they would change our current policies if they had the power to do so. I want to be very clear this is not at all a political conversation. I am not at all promoting one perspective or another. It's simply a direct conversation with two of the country's leading immigration attorneys walking us through the facts about how the system actually works. No matter what your perspective is about our current immigration policy, you're sure to learn a lot more than you already knew on the subject. By tuning into this episode, I know that I learned a lot more than I knew before I recorded it. So with that, here is Austin Fragaman and Bo Cooper.
- [02:34]
Austin Beau, this is a real, real privilege to get to be speaking with both of you today. You're both such experts in this space, and I think it's such a hot topic, as we all know as Americans, that sort of debate over immigration in the United States. And I don't want to be in any way political or polarizing in this conversation. I really want to just get an understanding of the lay of the land, because I realize as I'm watching the news and hearing different stories of what's happening, that I don't really have a full understanding of what a legal process for immigration looks like in the US So I really appreciate both of you coming to talk about that today, and I'm sure we'll jump into a lot of other topics that are related to that, too. But thank you both.
- [03:22]
Bo Cooper
Thank you, Leslie. We're delighted to be a part of this.
- [03:24]
Austin Fragaman
Yeah, thank you. We're delighted to participate with you.
- [03:29]
Leslie Heaney
Well, so maybe just like a 30,000ft. We hear a lot from, or at least I do from politicians sort of saying that there are many people who are patiently and legally waiting in line to come to the United States. So I thought we might first start with perhaps walking us through what the current process is to gain residency in the US And I think that would be a path to getting a green card.
- [03:55]
Austin Fragaman
Right. Well, I'd be pleased to address that. I mean, basically, one has to have a green card first be permanent resident status in order to be able to apply for citizenship. And of course, after you've been a permanent resident for, in most cases, five years, three, if you're married to a citizen, you can apply for citizenship after taking the civics test, which, curiously now many schools are borrowing from the immigration service since they don't have civics in school anymore. And aliens, persons who go through the citizenship process generally know more about civics than Americans. Unfortunately, that's just a little aside, but in any event, there's a civics test, and then, of course, you have to show your person a good moral character, and you have to reside in the US for at least half of the time. So the citizenship is application process is pretty straightforward, unless you have some sort of issue that goes to moral character. So the big thing is becoming affirmative resident. That's the hard.
- [05:22]
Leslie Heaney
That's the hard part. Right. But on the civics front, our nanny, who has worked with us for 20 years, the family that she worked for before us, helped her apply for her citizenship, and we. But she was studying for her test when she was with us, and I had the same reaction. First of all, I learned a lot from what she was studying. Our children learned a lot from what she was studying. So I'm actually thrilled to hear that some of our school systems are wanting to borrow from that test because we should all get that civics instruction. People that go through that process seem to know more about our history and our government than some of our native born citizens do. So let's talk about the permanent resident piece. Bo, do you want to take that? And I guess this is the process
- [06:14]
to getting the green card.
- [06:15]
We all remember the movie with Andy McDowell and Jer Depardieu and getting the green card. I guess just you can sort of take it from the top of what that process looks like. And I'm assuming it's different based on what country you might be from or you mentioned Austin, you know, whether you're married to United States citizen. Those sort of factors probably are very much at play too.
- [06:38]
Bo Cooper
No question. And that, that, that issue and then the, and then the experience that you related. Leslie, says a lot about the line you were asking about. The comment that we often hear about about people waiting in line.
- [06:50]
Leslie Heaney
Yeah.
- [06:51]
Bo Cooper
There's two things that are certain about that. One is that that there are people waiting in the line. The line can get quite long depending on the kinds of factors that you raise, where you're from, what your qualification
- [07:03]
for permanent residence is.
- [07:05]
So that's one point is that there are a lot of people waiting in line. A line can get quite long. It can be speedy for some, but it can get quite long. And then the second point is that the line is not open to everybody. There are basically three ways that we in the United States admit people for permanent residence. Three purposes. One of them is for employment skills that people bring. Another is for their family relationships to promote what's known in immigration discussions as family unity. And then the third is for humanitarian reasons. Those are the three basic reasons why the law admits people here for permanent residents. So running through those you asked about Gerard Depardieu.
- [07:55]
Leslie Heaney
Yeah, yeah.
- [07:57]
Bo Cooper
Certainly being married to a US Citizen
- [08:00]
puts you in the most privileged group of people from an immigration process standpoint for getting a green card. The law really favors people who are called, who are called immediate relatives of United States citizens, and that's spouses, children and then, and of U.S. citizens and then parents of adult U.S. citizens.
- [08:22]
Leslie Heaney
Okay.
- [08:23]
Bo Cooper
That's the core family relationship relationship.
- [08:24]
That's the relationship that the law most favors. And that group makes up about half of the people who immigrate to or get green cards in the US Each year. And there's not a numeric limitation on immigration from that category. Family relationships going kind of concentrically outward from there are next in line.
- [08:46]
And that depends on the closeness of your relationship either to a US Citizen
- [08:51]
or to someone who's already got permanent residence. And that's where the wait times can begin. Those categories are numerically limited and they're also based on demand from countries of origin. And so there's limits to the number of people from a certain country, from a particular country who can get a share of the green cards that are available for a particular year. So that, that if you have a more remote family relationship, if you're the sibling, for example, of the adult sibling of a citizen and you're from Mexico, your wait time can be north of two decades. If you are, if you're, as I
- [09:34]
said, a spouse of a US Citizen,
- [09:37]
then your wait time is just whatever time it takes, whatever time it takes to process your request. So that's the basic, that's the basics of the family group.
- [09:50]
Leslie Heaney
Could I jump in when you were mentioning Beau, that there are limits from certain countries, is that limits in each of the three categories or is it just in the category for people that are applying to have family here? Like, is it.
- [10:03]
Bo Cooper
Yeah, that's for family and employment based categories.
- [10:06]
Leslie Heaney
Okay. And then humanitarian, would that be what we categorize as asylum? Asylum and humanitarian the same or.
- [10:16]
Bo Cooper
Yeah, humanitarian is, I'm using a little
- [10:18]
bit loosely, but it basically refers to people who are, who are admitted to the United States as refugees or people
- [10:26]
who are eligible to gain asylum.
- [10:29]
Those are two related groups of people. Because in order to get the protection
- [10:34]
that can then lead after a year to permanent residence, you have to qualify as a refugee. And that's a definition that comes out
- [10:42]
of this, these, these post World War II International Conventions. Asylee is someone who is in the United States and can go establish to the government that they meet this definition of a refugee. Someone who comes in as a refugee, in immigration parlance, is someone who's overseas and outside of the country that they had to leave and who demonstrates that they meet this definition of refugee and therefore can be resettled in the United States. That's the basic. That's that those are the basic two streams. One thing that's kind of interesting about those two streams, Leslie, is that that
- [11:22]
definition of refugee I mentioned that it was developed after World War II. That definition is, is focused on people
- [11:31]
who can show that they would in essentially that their protection from their, their, their home country has broken down that they. And that they would be persecuted if on the basis of their. Of their political opinion or political, social or particular social group or a couple of other protected categories. It's a definition that, that was very particular to circumstances after World War II and a lot of what happened during World War II. It's not a definition that really covers a lot of the reasons why people are trying to come to the United States in the asylum flow today. So it's an example of a situation where we're working with a somewhat outdated definition.
- [12:16]
Leslie Heaney
Interesting.
- [12:17]
Bo Cooper
Doesn't really capture all the reasons why people would feel like they need to leave their home country today.
- [12:22]
Leslie Heaney
Interesting. And that's funny. That's interesting to me that that wouldn't be something with all the debate about policy around it, that wouldn't be one of the things that our government would want to look to at least clarify or consider of expanding, if it is limited, a more post World War II definition. I want to do a deeper dive on the refugee question because I had my own experience talking to someone from Afghanistan and his experience and then people who are trying to leave. And I think that would fall within this category of refugee that you were just talking about. But before I do that, Austin, I wanted to ask you, you mentioned, you know, three years is a wait time for often for people who have, I think, who marry a US Citizen, I think you were saying, and five years is for. For those who have a familial relationship. Was that, did I get that correct? Or is that the time frame from a green card to citizenship? Or is that the green card process?
- [13:22]
Austin Fragaman
No, that's the time from that you have to have had a green card before you're eligible to apply for citizenship. So you have to have been physically present in the US for half of the days during the five year period. But that would apply to everybody not so citizens, spouses of citizens would have a three year requirement as opposed to a five year requirement.
- [13:54]
Leslie Heaney
And then what BO is just saying that, you know, with the family relationship, if you're a sibling, it could be two decades. Is there an average for a wait time? We're talking about the line, right? Those that are legally waiting in line to get the green card, if you have those direct familiar relationships, how long does that take? And then you can't be in the US during that period. Right. You're in your home country waiting to get the green card.
- [14:22]
Austin Fragaman
Or most people, actually, most people apply for permanent residence through, for instance, the skill based categories are physically here on temporary work permits. In the case of relatives, for instance, brothers and sisters of US citizens. In that particular case, they may be actually waiting abroad as opposed to in the US but in the employment base, most people are physically here. But the number, the line, just to give you an idea, there are right now 4 million people who are waiting for visas in various categories. Roughly 4 million people. So that's how long the line is. So it's a situation that begs for some, some, some relief, right? There has to be, it has to be more sensible than this.
- [15:27]
Leslie Heaney
So if you're working, let's say for a company and you get transferred to the US that company just gets you a work visa. You, you don't even go through the process of, or you could, I guess, perhaps depending on the employment qualification piece, go through that process of applying for a green card. But your ability to work here would be through a work visa for a certain period of time. And then you were able to get your, and your company. This is assuming you get a lot of cases like this with your firm, obviously would work with an immigration attorney to help sort out their visa for the time that they're working for that company in the U.S. correct.
- [16:12]
Austin Fragaman
Okay, so the normal scenario would be, let's say your company transfers you here, intercompany transfer would be an L visa, then you could work on this L visa and then the company would apply for permanent residence for you. And there's a expedited process if you're a manager, an executive of an international company, that actually makes the process go faster. So that would be very typical. The other typical scenario would be to come to the US on a student visa. Then you apply for an H1B visa, the company hires you in H1B status, and that applies for permanent residence for you through the employment based preference. So that would be the typical scenarios that you would have in the employment based category. But you have to remember that the employment based visas are a very small percentage. They're only about, of all the visas that are permanent, permanent status, say each. In each year, there are roughly a million people granted permanent resident status. And although at that number, half of them are immediate relatives.
- [17:38]
Leslie Heaney
Okay.
- [17:39]
Austin Fragaman
Then there's only about 15% of them that goes through the skills related or employment based system, only about 15%. And that includes dependents. So you're looking at an immigration system that is really skewed towards family reunification and not providing skills. However, the temporary visas allow a large number of people to enter who then start working for companies and then want to apply for residence and wind up in these monstrous lines.
- [18:19]
Leslie Heaney
Right, right.
- [18:20]
Austin Fragaman
That's sort of the scenario that we have currently.
- [18:25]
Leslie Heaney
And then what about, like, countries are there? You know, I went with my middle child to a trip to Senegal with this organization, and we met so many wonderful Senegalese people. And many of them, you know, were saying how they would love to come to the US And I was saying to the director of the organization or they'd be terrific.
- [18:45]
Did they ever come because they work
- [18:46]
for this organization, they're on the ground doing their work in Senegal, and they said, oh, they can't get visas to come to the US And I just, even, I'm just saying to visit for two weeks to see the organization's operations here. And I don't know if this is true or not, which is why I'm going to ask you both this question. But, you know, they said, oh, well, it's virtually impossible for an African male, Senegalese male to get a visa to go visit, just to visit the US Is that. Are there certain countries where that's the case, or this is just their experience, or is there a list of kind of do not fly sort of countries? And.
- [19:27]
Bo Cooper
Well, there are, as a general matter, there are, there are countries that have
- [19:32]
higher, much higher visa refusal rates than others. But let's go back to where that comes from. One of, you know, maybe the key
- [19:43]
requirement for someone trying to come to the United States as a visitor is that they have what the immigration law terms as a residence abroad that they don't intend to abandon. Now, that's a fancy way of saying, do we, the government, really believe that you're going to go back home at the end of your temporary stay? And whether or not a person meets that requirement that they have a residence abroad that they don't intend to abandon, that is that they plan to go home at the end of their visit. That's a judgment that gets made by
- [20:18]
a consular official at a US Consulate
- [20:21]
connected with an embassy abroad. And it's interesting, those judgments are made usually very, very quickly. We're used to, in this country, we're used to legal determinations being made on the basis of a lot of evidence.
- [20:36]
And there is evidence that you can
- [20:38]
take forward to try to demonstrate your
- [20:40]
ties to the country.
- [20:40]
And know, we would advise people to
- [20:42]
bring, for example, their bank statements, you
- [20:44]
know, statements about whatever. What do they own a home?
- [20:47]
What are their community ties, their church
- [20:49]
membership, do they own a car?
- [20:51]
You know, what are their relationships at home? What are the kinds of things that would draw them back home at the
- [20:56]
end of a visit.
- [20:57]
But what. But what happens in practice is that
- [21:00]
that, you know, the volume of applicants
- [21:03]
for these visas is typically very, very high.
- [21:07]
And so the amount of time that
- [21:10]
a U.S. officer has to make the
- [21:13]
decision is usually very, very short.
- [21:16]
And so you're usually getting kind of
- [21:19]
almost instinctual decisions about whether or not an applicant before you, if you're a
- [21:24]
consular officer, really plans to go back at the end of the visit. And I think it's safe to say that this requirement is by far the biggest reason for the denial of visitor visas that exists. It's the hardest hurdle to overcome. And I think that's what was being
- [21:45]
described to you during that visit to Senegal.
- [21:48]
Leslie Heaney
Okay, interesting. And then I had this other experience, and this kind of does get into the more of the refugee humanitarian question for both of you, where I was at a podcast conference in Dallas last August, and I had this terrific Uber driver. We were in the car together for terrible accident, terrible traffic for an hour and a half. And he is from Afghanistan, and he was a translator in Afghanistan. And he, you know, part of one of the Marines that he was embedded with said, you really need to start, I think we're going to be leaving Afghanistan. So you need to start the process of applying your family to come to the US because they were worried of the Taliban taking over. And he was a translator, and. And so he started that process and he and his family were able to get out of Afghanistan. But he was saying so many of his colleagues that he worked with and friends there who helped the Americans are still there, or they're hiding fear of the Taliban, it seems to me. I don't know, again, what the criteria are of that. You were talking about the refugee policy being established after World War II. I would think that it would be similar. Right. Some of the criteria you were saying, you don't you feel like you could be protected by your government at home and, you know, your safety's at risk? What is the holdup with those people being able to get out, Afghanis, you know, that were in that category, being able to get out to come to the U.S. he also mentioned that, I guess we used to provide some sort of funding or sort of a safety net for people that were coming to the US as refugees to help them assimilate. And I think that funding has been cut in some way recently. So. So I guess I'll start with just asking you the question about what you know about that people in Afghanistan are being sort of left behind and, and how, you know, is that sort of accurate, his description there? And then the second piece is about how, how we support refugees that come here if, if we still do do that.
- [23:51]
Bo Cooper
Yeah, we've done a lot of work on this Afghanistan issue and it's a great illustration you raise of a lot of the complications involved in making decisions about what's the best way to provide protection in these crisis situations. One of the things that's true about the refugee process and the asylum process that we talked about before is that it takes a very long time to, to make individual determinations. You've got to make, first of all, you've got to make a very careful security based decision. Are we bringing in someone who it's safe to, to readmit to this country and bring into, into our community on a permanent basis? Then you have to figure out, you
- [24:40]
know, is the person, is the person's story that they're relating about their, about their situation accurate?
- [24:47]
You know, there are a lot of people who seek to come into the country through programs like this. And, and so, you know, I've been involved in them before. You're, you know, it's, it's very difficult to distinguish often between people who are in the, in, in the most urgent of, of peril and people who are
- [25:06]
describing situations that exist but that, that aren't their situation. And so parsing through, parsing through the credibility of the claims that are being made is something that takes a very long time. And you have to.
- [25:22]
Leslie Heaney
Is that happening at, I mean, do we even have a consulate that's operational in Afghanistan? How are they.
- [25:28]
Bo Cooper
Because that process takes so long.
- [25:31]
It wasn't a viable one for the,
- [25:33]
I mean, there was refugee processing of Afghanistan, of Afghanis going on up until the time of the, of the evacuation and after. But because it takes so long, that wasn't really a viable way of providing protection to most of the people that are in the situation you described. First of all, people had to get out and you know, when the door shut, that was it. It was very difficult to get out after that time. Second, there, the numbers of people were
- [25:59]
too great to go through the process that would usually apply in what we
- [26:03]
call our refugee resettlement process.
- [26:04]
And so you saw the government doing things that administrations have, you know, have
- [26:10]
done for a while, which is to
- [26:12]
use other more, more, more temporary and less durable approaches to bring people into the country. And so they would use what's called parole, which is a word that we use to describe like physically allowing someone's
- [26:26]
presence in the Us even when there's not a category like a long term
- [26:30]
immigration category that would apply to them.
- [26:32]
And so a lot of people were
- [26:33]
brought in because of the urgency of the pro. Of the situation through parole. And, and those programs are, are, are,
- [26:42]
are, you know, much less permanent, for example, than the refugee resettlement process. And they come with, they don't come for the most part. Afghanis was a little bit different, but for the most part, those people who are brought in with these temporary programs called parole, they don't go through as much process. They don't get the kind of support, of support safety net that you were,
- [27:05]
that this person was describing to you.
- [27:07]
Leslie Heaney
I see. Okay, interesting. And then what about Ukraine? And then there's also a large population of Somali immigrants in Minnesota, I believe, which might make sense when you're talking about the family relationships. Right. And people getting green cards that way. What countries I guess would be in the category? Is Ukraine in the category? Do we designate countries as countries that would qualify as having refugees based on what's happening in those in their home country?
- [27:37]
Bo Cooper
Yeah, I mean, historically there are countries that we, that we would admit numbers
- [27:43]
of refugees from through that process that I was describing.
- [27:47]
And they get admitted with the potential to be here permanently to gain permanent, to gain a green card and then eventually citizenship.
- [27:55]
That's a program that's much more limited now than it was under previous administrations. This administration's made a choice that it should, that it should limit to a
- [28:03]
much smaller number of the people, the number of people that we admit through this refugee processing processing program. You know, it takes, it usually takes years.
- [28:13]
Leslie Heaney
If you're from a war zone, like if you were from Ukraine, you're not expedited because they're in active war or.
- [28:20]
Bo Cooper
Yeah, with, with Ukraine, again, because of, you know, you hit on it.
- [28:23]
Exactly.
- [28:24]
Because it was, you know, a war zone. People from Ukraine were admitted in order to, to be able to, to, to bring them here quickly. They were admitted through this parole process, I think.
- [28:36]
Leslie Heaney
Okay, but it's still limited. The number is still limited.
- [28:39]
Bo Cooper
The number is whatever the government decides, it can be as small or as big as the government decides. If it's big, then, you know, then
- [28:46]
that tests the, you know, that tests the preparedness of this country to bring
- [28:52]
in people in large numbers. It tests the ability to keep that admission temporary, which is, which is, you know, which paroles in general are supposed to be. You know that it gets sticky when you begin to use these quicker programs like parole. It gets sticky. What you're going to do over the longer term. That's why you see decisions about ending the Ukraine parole process and controversy over that. It's a less time consuming but far less certain program that's subject to a lot more differing views.
- [29:28]
Leslie Heaney
Okay. Our daughter is at school in Scotland and we went through an extensive process getting her a visa to go to school there. And I know there was talk when Trump, we were having trade disputes with China that some of those student visas would be affected. Did that happen, Austin, and what is the process and time frame? Or you touched a little bit earlier on student visas, but was there a backlog, Was there a pause during those trade disputes? And what is that process like for people that want to come study here at the US well, we really have,
- [30:05]
Austin Fragaman
you have two problems. You have, one is the processing delays just because of the number of people involved. And then secondly, you have the concern, Right. Almost obsession with security, particularly for persons coming to study from China. So there is a rigorous vetting process to make sure that when they come and study in the US Whether they will be exposed to any sensitive state secrets in technology primarily they would want to bring back to China for.
- [30:50]
Leslie Heaney
This is for college visas.
- [30:52]
Austin Fragaman
Oh, yeah, sure. They're very concerned. They're concerned about them. Sure. Because you could, you could be coming to the US to go to MIT or something and studying artificial intelligence. So the point is, it's particularly with graduate students that the problems created. And of course, this whole situation has gotten a lot worse with Trump imposing entry bans on certain countries because that's pretty much shut down the ability, like we mentioned Africa before, that's pretty much shut down the ability of these African students to get visas to come to the U.S. in China, there's still, you know, they're still issuing, they don't have a moratorium on not issuing any student visas, but it's a much more difficult process than it was historically when you're, when, when you're looking at getting visas to go abroad. Right. Then of course, that's like Scotland then that's all a question of, you know, what are the Scottish rules to qualify for a student visa. And, and that would be, I would think, you know, you have to go through a certain amount of paperwork. But, but it's not a difficult.
- [32:23]
Leslie Heaney
No, it's, it wasn't, it was more than a headache. That. Yeah, that it was. But it's interesting, the UK has a new. And you know, this beau. Because you're in London right now, they're requiring everybody to apply. It's like a 24 hour application process. But you do have to fill out a visa to go travel to the UK now, which is new, I think, as of this past summer.
- [32:44]
Bo Cooper
Yeah, it's, it's relatively new. It's, it's basically an electronic travel authorization to tell them you plan to come here, you tell them the reasons why, you give them information about yourself and they can run you through a security database and decide whether or not to let you come in without going to get a visa itself.
- [33:01]
That is, without going through the process
- [33:03]
we were talking about before, where you go meet with a consular officer, you know, demonstrate your eligibility, make them feel comfortable, etc. That's that process that the UK has now that, that a US traveler, for example, would need to go through. That's like a process that we require
- [33:20]
of, of people who are trying to
- [33:23]
visit the US without a visa. It's called the Visa Waiver program and we refer to it as esta. So if, if you're from a country that we allow it from, that is a country with a, with a pretty stable record of, of citizens leaving of its citizens coming to the US and then returning at the end of the, a good record of exchange of security information back and forth with the US A good record of having stable and secure passports and entry documents. Those countries, the ones that will allow to come here without getting a visa
- [33:57]
first, we still make them go through that same process, submit an electronic request
- [34:04]
and then we'll go through the process
- [34:05]
of running them against databases and then give me a quick response, yes, you
- [34:10]
can come in visa free. So people need to, you know, to come to the US people from these visa free, these, these visa waiver countries need to go through what we call the ESTA process. It's very similar to what the, the UK has recently started to ask of.
- [34:24]
Leslie Heaney
Well, interesting. It's so I didn't realize that we have already been doing that to, to them, it sounds like for some, for some time. And when they're doing those searches, they're looking for Austin, whether you're on a do not fly list, you have a criminal record, what, what kind of search are they doing when they're.
- [34:41]
Austin Fragaman
Yeah, that, that, that's absolutely right. They, they have, you know, there is a worldwide system out there that most countries subscribe to that, you know, runs security checks. I mean there is a, you know, there is a, a sharing of information, I should say, between countries and that's when that's where they decide whether you can be part of this ESTA program. There are, I think 42 countries, I think the last time I looked that we allow to go through this. And it's because they, as both said, they have rigorous processes in those countries to make sure that passports are only issued to people who actually are that person. And secondly, that there are, you know, adequate databases that we can be sure that this, any kind of negative information is recorded and would become readily apparent. So that's, that's how it works. And actually, as a funny aside, you know, the, the other countries had, had put us through this, the equivalent of the ESTA process where you had to register online first and whatever. And then we basically just allowed people to get on planes if they were from certain countries. And then we tightened that security with this program to pretty much mirror the European system. But it works. It's, you know, you've been through it. It's a pretty simple process.
- [36:32]
Leslie Heaney
Yes, definitely. And it takes a few hours or 24 hours maximum. But it was just interesting. I didn't know if it was sort of, you know, because some diplomatic, you know, something, you know, the Brits just had enough with us and wanted us to have to, you know, which might be the case.
- [36:50]
Taking a quick break for a word from our sponsor, Cozy Earth.
- [36:53]
With Mother's Day right around the corner and spring in full swing, Cozy Earth makes it easy to pamper yourself or that favorite mom or lady in her life with their luxurious robes and slippers. First, let me tell you a little bit about their amazing robes. They have spacious pockets, adjustable ties and cozy silhouettes. Their robes make every moment feel special. Whether it's their plush version, their quilted, they're waffle, or they're stretch knit. Each piece is made with such care. I have the plush robe and I live in it every single day. It's the first thing I put on in the morning right before I slip on my plush yearling slippers from Cozy Earth that I also adore. They make me feel like I'm walking on a cloud as I move up my way over to the coffee maker. Their robes and slippers truly are the perfect thing to gift those special mothers or women in your life for Mother's Day. Or just as a little gift that you're thinking about them this spring.
- [37:47]
I just sent one to my best
- [37:48]
friend yesterday and I can't wait for her to try it. I sent her the plush robe. It just brings luxury, warmth and care into your day every single day. What's also so special about Cozy Earth products is that they're risk free. You get a hundred night sleep trial. If it doesn't work for you, you can return it, no questions asked. And their products also come with a 10 year year warranty, which is amazing. So celebrate the mothers and special women in your life with a gift from Cozy earth. Head to cozyearth.com and use my code duolog for an exclusive 20% off. And if you see a post purchase survey, please be sure to mention that you heard about Cozy Earth right here on the Duolog podcast. Cozy Earth because home starts with Mom. I want to just to quickly Austin, ask you a quick question on student visas. You know, there has been controversy or debate about certain students who protest or have certain political views or are having their student visa revoked. And I guess my question is I would assume these visas can be revoked really for any reason and the government can revoke your visa if you break the law. Or what are the criteria, I guess around that?
- [38:59]
Austin Fragaman
Well, it's actually an interesting question because it really goes to the, the bigger issue of whether persons here in temporary visas are protected by the Constitution and the Bill of Rights. Right, right. The, the, the reality is that the judges have held in these individual cases that the First Amendment protection applies to foreign students. Oh, interesting. You can't, you can't revoke, you can't revoke their student status unless they actually pretty much commit an overt act.
- [39:38]
Leslie Heaney
Okay.
- [39:39]
Austin Fragaman
And just in terms of demonstrating and things of that sort, they have a right to do that, just like the U.S. citizen would. So in coming to the U.S. of course, if they were to leave and then if they were to leave and then want to come back as a state student, they definitely would not get in because they then would be in the system, no doubt. And at the same time they would be persons who had been engaged in activity that's contrary to the interest of the US but to actually remove them from the US Is very difficult. Unless, as I say, they have a criminal conviction or they do something that, that would be, you know, conspire with other terrorists or, you know, being overt.
- [40:36]
Leslie Heaney
So really more of a criminal act than, than a demonstration or anything or
- [40:42]
Austin Fragaman
something with, you know, or something that, as I say, I think if you think of it as an overt act as opposed to just what you say.
- [40:51]
Leslie Heaney
Right.
- [40:52]
Austin Fragaman
That, that's a good way to look at it.
- [40:54]
Leslie Heaney
That actually is a really clear and great explanation of that. We know, we all, I think, know people who are here in the US Illegally either cross the border or they overstayed their visas for these people. Is there any path for them to obtain Legal residency. I, I guess maybe it matters how long you're here, whether you've had children here, or is it just with our current policy, just a non starter?
- [41:22]
Austin Fragaman
Well, I think the, I think one of the big issue is if you entered the United States because you did not get inspected, that is, you come across the border and you're not inspected and admitted to the United States, therefore you have no status. And therefore it becomes virtually impossible to remain in the United States while you apply for a resident status. Okay. So typically then you get kicked into that.
- [42:01]
Leslie Heaney
The line. The. If you're in that category and then you have to leave, then you would be in that line that we talked about.
- [42:09]
Austin Fragaman
Well, yeah, well, then you'd be in. Then you'd have to process your application before the, you know, U.S. consulate where you reside.
- [42:18]
Leslie Heaney
Right.
- [42:18]
Austin Fragaman
And then that would necessarily bifurcate the process because you'd have the first part of the process of going through getting an immediate relative petition approved, say if you're married to a citizen, and then you'd have to visa process through the consul. That would be a very long process. If you entered the United States and overstayed on a visa, say you come out of a student visa and you stay too long and you married a citizen, you'd be able to change your status in the US To a permanent resident. But if you were to apply in a different category, you might be subject to one of these bars that says that if you've been in the US out of status, meaning your visa is expired, that you, you have to, you have to go abroad for a period of time before you can return. So if you overstay your visa for six months, then you have to stay out of the country for three years.
- [43:30]
Leslie Heaney
Oh, wow. Okay.
- [43:31]
Austin Fragaman
The penalty is pretty harsh.
- [43:35]
Leslie Heaney
It doesn't matter if you have a child here, if you had a child and your child's a citizen.
- [43:40]
Austin Fragaman
No, the children, children cannot petition for their parents until they're 21, basically. And that's, that's why this, this whole, you know, birthright citizenship so important is because these children have no ability to confer an immigration benefit on their parents until they're 21. So the bottom line is, is it possible to get yourself straightened out once you enter illegally or you overstay on your visa? The answer is yes, but it's pretty difficult. And it's really difficult if you're not marrying a citizen.
- [44:23]
Leslie Heaney
Right. Okay, that's interesting. Yeah, that's what that was sort of my understanding that it's very difficult without having to go back to your home country, spend considerable time there, and make an application from there. You know, you mentioned Austin, birthright citizenship. And I know that's a, you know, a subject of hot debate right now because it was raised by the president as something he's, you know, and again, it's sounds like Austin, he doesn't have the authority to make that change. But how does that policy compare to other countries? Meaning are we the only country that. That has birthright citizenship, or are there others that allow that?
- [45:01]
Austin Fragaman
There are. There are probably 35. There are more or less 35 countries that allow birthright citizenship. Most of them are in the Western hemisphere, namely, you know, South America. Birthright citizenship is permitted in both Canada and Mexico.
- [45:24]
Leslie Heaney
Okay.
- [45:25]
Austin Fragaman
But. But in Europe, it's, It's, it's virtually prohibited. And what they typically do in Europe, just to give you an example, is in France, right? If you basically live there for five years after the age of 11, then you can apply for citizenship. Okay. In Italy, pretty much the same thing, but you have to apply before you're 19.
- [45:57]
Leslie Heaney
Okay?
- [45:57]
Austin Fragaman
The UK, which only changed its law like two years ago or one year ago, if you have one parent that's a citizen, you're a citizen. Or if the parent is what they call settled, which means they have indefinite status to remain, then you're a citizen.
- [46:20]
Leslie Heaney
Okay?
- [46:21]
Austin Fragaman
So if you, if you have a parent that's settled, or alternatively, if you live in the UK until you're 10, then you can apply for UK citizenship. So you can see the way it's all set up. It, it, it's all a function of having one parent who's a citizen. Or in the uk, this other odd status of being settled, which would be the equivalent of being a permanent resident. Yeah, it'd be like if you law that. That allowed us, you know, a child born here to be a citizen only if one of their parents was permanent resident. So that's sort of an anomaly. So that, that's kind of how it breaks out. So in Europe, usually there has to be some period of time the child lived there, lived within a country, or one of their parents has to be a citizen.
- [47:23]
Leslie Heaney
And then if you have a, you know, it sounds like Portugal. My husband is of Irish descent. His. Both his parents Irish, and his grandparents on his mother's side were from Ireland. So he, I think, can apply for an Irish citizenship. I think I know that he can. And I said, oh, maybe you should do that. Then the kids could work in Europe if they're. Or stay longer. And I Don't think that's necessarily the case. But there are certain countries, Portugal is another. Right. European countries that encourage people from other countries to come to live there and buy property there.
- [48:02]
Austin Fragaman
Yeah. There are two different concepts though. The one is that as we have this investor status that allows you to invest, say roughly a million dollars, you can get resident status. Other countries, 50 other countries have residents by investment status. And that's what you're talking about in Portugal. Portugal got so popular that they now restricted to going to the remote parts of Portugal. You can't be buying, you know, a house on the ocean in the Alar anymore.
- [48:48]
Leslie Heaney
Well, isn't there some part of Italy? This is maybe it pops up on my Instagram where it's like you can buy a town in Italy or they want you to buy these houses, they'll give it to you for free if you trying to get some American investment. I think there.
- [49:01]
Austin Fragaman
That's right, that's right. But the other issue you raised though is really a question of, and actually being a citizen is just derivative citizenship is the general category. Okay, okay. So, okay, if you're, if, if you're Italian, for instance, and you have a grandparent. Right. Who was. Right. Who was born in Italy and, and was not naturalized in the US until after your parent was born born. Right. You can derive citizenship from that grandparent.
- [49:44]
Bo Cooper
Oh, yeah.
- [49:45]
Austin Fragaman
Then you're a citizen. You get a uk, you know, EU passport.
- [49:49]
Leslie Heaney
Yeah.
- [49:50]
Austin Fragaman
And you can go any, you know, pretty much travel anywhere you want in the eu. So it's, you know, it's, it's beneficial, but you have to be sure you know where your residence is and what the tax implications are and.
- [50:07]
Leslie Heaney
Yeah, yeah, yeah, of course. I mean, definitely. What about, and I hate to touch on a very sensitive topic, but it's probably on listeners minds a little bit that our current deportation policy. How is that if you are deported and you hear these stories of people that were deported and shouldn't have been deported, are you seeing these kinds of cases? And what is the path for those people being able to seek re entry, particularly if they have family that's here. I guess they then go into that particular cat visa category, that category of three that you mentioned. But what does that look like today?
- [50:48]
Bo Cooper
I think most people who get deported are not coming back. And so the real question to raise is, is what is our, you know, what's the deportation aim? Let's say that we have 14 million people here who are subject to deportation. You know, what's the, what does the country want to do about them. And, you know, as a practical matter, it's, it's essentially impossible to go out and find and, and, and apprehend and deport that number of people.
- [51:25]
And so every administration goes through the process of deciding what to do about the inability to deport everybody if you
- [51:35]
chose to and should you even choose
- [51:37]
to in the first place. And if not, how do you make decisions? How do you make cuts? Every administration over the past couple of decades has had removal priorities. Who is it that we want to focus on? Most everybody agrees that people who are criminals and who are dangerous to the community ought to be the top of the list. You know, that's unanimous among administrations. You know, what we're seeing now is a view that really anybody who is here unlawfully ought to be to some extent a removal priority. If you're here without permission, you shouldn't be allowed to stay. That's the essential, that's the essential approach that's being taken now and then because of the fact that, that, that the country doesn't have the resources to remove
- [52:28]
everybody, even if it chose to.
- [52:30]
You see certain policies that are getting put in place in order to drive people's decisions. If you're not here unlawfully, you ought to get yourself out of the country
- [52:41]
because it's going to become very unpleasant for you if you don't.
- [52:44]
That's been policy of, of removal by attrition, it's been called. But, you know, again, that's a, that's, that's a topic that, you know, obviously there were, there were, you know, a lot of voters were, were very unsatisfied
- [53:00]
with the inability of the United States
- [53:02]
to, to control against unlawful immigration. That played a big part, I think, in the campaign.
- [53:07]
Yeah, it's fair to say, in, in the result of the election. But, you know, you also see that when the choices can go beyond the appetite of the country when it comes to immigration enforcement. And so, you know, I think that, I think there's, you know, there's a mixed view about what to do about that. And I think that you can generalize is that when you ask people in this country, you know, do you think people ought to be able to come here unlawfully and stay? People generally say no, that shouldn't be allowed. We're a country of the rule of law. But, but when it comes down to people that they know, the answer, a lot more complicated because, you know, people know a lot of good people who are here unlawfully and, and, and, and are not so in favor of those people being picked up and jailed and deported. So it's.
- [53:59]
That, that's.
- [53:59]
That's a really interesting phenomenon. Is, is. Is that. Is that in general, Americans feel like you shouldn't be able to be here unlawfully, you shouldn't be able to break the rules. But when it comes to people that they know individually and personally, then, then, then it becomes much more. It becomes, you know, a much different story.
- [54:16]
Leslie Heaney
Yeah. And I think, you know, everybody, it seems most Americans are very much in favor of having a secure border. Right. So we know who is coming into the country. You know, we were saying earlier, like, if you're getting a visa, at least there's some clearance of that first. First round. Right. And if you overstay your visa and you're here illegally, you know, that then becomes different than people who are coming across the border. But if you look back, you know, Democrats and Republicans, I think, perhaps with the exception of this most recent administration, have all at least said, to your point, Bo, we have 14 million people here. It's impossible practically to deport all these people. And many of these people are people who are working hard and paying taxes and raising their families here. Right. So how do we. Everybody, I think, agrees that our current policy isn't working as well as we would like it to be and that there should be some path to citizenship. I mean, if you go back, I'm looking at presidential debates, whether it's Bush, Gore, all of them would say that there should be some way for people who are in the category that we just talked about that have come here illegally, whether they overstayed a visa or what have you. But if they're here and they're participating in a positive way in our society, they should have some path forward. If you, too, were in a position to advise. I know this is a big question, our government, on a. On that kind of policy, what would you recommend?
- [55:52]
Austin Fragaman
Well, right. Right now you have a highly undesirable situation because as you increase ICE enforcement, you basically, the politicians will turn the public against them because you cannot be out harassing 14 million people in minority. Minority groups. Right. Without any real chance of getting them all out of the country.
- [56:25]
Leslie Heaney
Right.
- [56:25]
Austin Fragaman
And so I think that they. The basic problem is that you're. In a funny way, you know, we're kind of like, stuck with them, so to speak. They shouldn't be here, but they are now. We've got better border security. So I think the only sensible thing you can do now is you. You basically all the, you know, quote, the bad guys, right. The Criminal. That we all. Everybody's in favor of arresting criminal aliens. Right. And the criminal aliens constitute about somewhere around 25% of all the aliens that are arrested by ICE, which is actually, if you think about the fact that that's what they're really focusing on. They're getting a disproportionate number of criminal aliens because that's who they're targeting. The others are just incidental, so to speak. Persons that they encounter other than they were, they go to places of employment. Employment where they know their occupations, where there are a lot of aliens working here illegally. And generally those are the people who are, you know, have jobs and pay Social Security and are, you know, quote, regular employees and live normal lives. Right? Yeah. Well, to me. To me, the only sensible thing to do is to come up with a plan where you grant some sort of amnesty. You can either buy. Go through it like we did back in 86 with that.
- [58:06]
Leslie Heaney
I was going to say, didn't Reagan do something like that?
- [58:10]
Austin Fragaman
1986. That's right. You can have. You can do what he did, or you can just advance the registry rate. There is a section of law that says that anybody who's been in the US since January 1, 1972, can apply to stay here and not qualify in any of these other categories. And that was updated in 1986. When they passed amnesty. They. They increased the registry date. So you could do it by increasing the registry date. But I think that. I think you're going to have chaos having a really robust program chasing aliens around in minority communities. And the big problem with it is, as you alluded to, it's a fruitless task anyway, because you can't apprehend all of them. It's not possible. And so many of them have false identification. You can't even figure out, you know, without going through the government's database, you can't even figure out who they are. So trying to put pressure on them through their normal existence, like, you can't go to school. You can't do this, you can't do that. Is a problem because, number one, the courts have said you can't do some of those things because they're a resident of the school district, regardless of their status. Parents. So it's in Austin is not.
- [59:50]
Leslie Heaney
Is that what courts are saying with some of these cases? I've seen some of these things on the news where, you know, a parent is apprehended or a child at a school that did the courts say the child is allowed to. What are the outcomes of Those kinds of cases. It sounds like there's been some case law on that.
- [60:06]
Austin Fragaman
Oh yeah, there's been case law in it particularly. And in Texas there were. They basically tried to keep children of persons who are here illegally from going to school. And they, you know, they held they can't do that. And then the court in California recently said, you can't stop and question someone unless you have reasonable suspicion to believe they're here illegally. And you can't look at, you can't look at factors like the fact that they speak Spanish or how they're dressed or other appearance based criteria. You have to have something more substantial than that. So that pretty much precludes, you know, that precludes stopping and questioning people.
- [61:01]
Leslie Heaney
Right.
- [61:02]
Austin Fragaman
Which you can't do. So I think that the bottom line is that it isn't possible to get, to get everybody out of here and it isn't sensible or possible either to harass them enough that they'll all leave voluntarily.
- [61:20]
Leslie Heaney
Right.
- [61:20]
Austin Fragaman
And you have to look at where they came from. It would be impossible to do so many things to them that it'd be worse than where they came from.
- [61:30]
Bo Cooper
I was going to just point out something that we and your listeners need to remember, which is this issue and so much of what we've talked about today. How many people we're going to, what categories and how many are we going to admit for family reasons, what categories and how many people are we going to admit because of the skills that they bring? What are going to be our responses to humanitarian crises? What do we do about those people who are here unlawfully?
- [61:58]
Do we forgive some proportion of them in which categories? Those are all questions that really only Congress can answer. And there's been a great deal of inactivity, you know, some kind of startling inactivity on these, on these issues for so long in Congress. Congress can't bring itself come to conclusions about these things. And so you have, you know, we've got a system that was set up many decades ago for a different economy and for different kinds of crises situations and based on different tolerance levels in the country.
- [62:35]
I think the bottom line is that
- [62:37]
when presidents have tried to answer those questions, it's unsatisfactory. It's been unsatisfactory for presidents of both parties. And these are questions that really, it's
- [62:47]
only Congress can answer them.
- [62:49]
And so I think what's really called
- [62:50]
for is, you know, what would really be ideal is for us to reach a point where Congress can bring itself to tackle and answer these sticky questions.
- [63:00]
Leslie Heaney
Yeah, and as you said, just the practicality, you know, looking at, you know, which is not, unfortunately. So sometimes our policy is, or many times our policy is created around politicizing the issue as opposed to trying to practically create a policy that will address some of the concerns around it. Right. I wanted to ask one final question, Bo, to you, because you mentioned our current policy around granting or allowing refugees to come to the US as part of that humanitarian program that you were talking about or policy that we have, and that it was developed after World War II. How would you like to see that change? Seeing what you've seen, what other definitions or criteria do you think should be included in that?
- [63:46]
Bo Cooper
Well, that's a really hard one because, you know, I don't think the country is in a position to absorb everyone who wants to come here because they're in a very difficult situation in their home country.
- [63:59]
Austin Fragaman
Okay.
- [64:00]
Bo Cooper
You know, what you see a lot of in the debate is people saying, oh, well, we have to address root causes and go and help things to be better in the countries that these people feel the need to flee. That's true, and it's a very important focus, but it's one that takes a very long time. And it's not practical to think that we're really going to solve the problem
- [64:20]
of migration under duress that way.
- [64:25]
And we're actually going to see more
- [64:27]
factors that cause people to feel the
- [64:30]
need to leave their home country climates, one of them.
- [64:32]
So I actually, I don't think it's possible for us to just come up with a new and modernized definition. But in definitions, I mean, some of the problem, it's easier to point out
- [64:47]
the problems than for me to say what the right solution is. But some of the problems are that when you come up with a very individualized definition, like can this person show a particular fear of persecution because of this characteristic?
- [65:02]
That's hard to prove. It takes a.
- [65:04]
You know, it's very difficult, and it takes a long time to decide on an individual basis. You know, claims stack up and the system can't get to them quickly enough. It's susceptible of people who are, are. Are fabricating claims. So these highly individualized decisions are probably, you know, not the wave of the future. You know, nor is. Nor is it easy to say, well, you know, we'll. We'll just deal with broader situations where it's tough for people to go home and give temporary protection. It's hard to draw a temporary protected circumstance to a close.
- [65:43]
Leslie Heaney
Right.
- [65:44]
Bo Cooper
People are here for a long time, they develop ties that, you know, you, we see that phenomenon that, that, you know, that, that oh, they've become an important part of the community and now it's hard to decide we don't want them to be here any longer. So like so much immigration, it's easier to point out the problems than to pinpoint a solution.
- [66:04]
Leslie Heaney
Right.
- [66:04]
Bo Cooper
I do think what you need to do is, you know, probably find solutions that are not so individualized that do account for broader base needs to leave than just this old World War II, post World War II persecution definition condition. You need to not require yourself to treat citizenship as, you know, the end in all these circumstances and try to find some way of distinguishing situations that needed a long term solution versus those that could be satisfied with a shorter term one and one with lesser rights.
- [66:48]
Leslie Heaney
Yeah, no, and as you said, it's a really hard one from a policy perspective, but it's clear that there has to be that there could be sort of a broader definition to make it sort of be more applicable or more apply to more cases than it is right now. Bo, Austin, I'm so mindful of the time. I mean, I could talk to you both. I have so many other questions and I'm sure listeners do too. But I just think this was a terrific conversation and overview of the state of immigration in the US today. And I'm really so grateful to both of you for taking the time and we're really so fortunate to have your perspective. So thank you both.
- [67:30]
Austin Fragaman
Well, thank you, Leslie. We thoroughly enjoyed it.
- [67:34]
Leslie Heaney
Well, thank you so much. Beau. Thanks a ton, particularly from tuning in from London.
- [67:40]
Bo Cooper
Well, thanks. We've really enjoyed it. And I guess if there's anything we want your listeners to come over away with, it is the fact that immigration is much more complicated than meets the eye. And it's never as simple as, well, people should just get in line. It's never as simple as we would want it to be.
- [67:58]
Leslie Heaney
Yeah, yeah, for sure. But I think, Bo, I really appreciated your making the point that this is something that Congress needs to tackle and both sides of the aisle have been having this debate for a really long time and it's time that we sort of find some kind of consensus around it because what we have right now is not working so well. So a real pleasure. Thank you both so much. I really appreciate it. That brings us to the end of
- [68:25]
this episode of Duologue. A huge thank you to Austin Fragman and Beau Cooper for joining. I learned so much from Austin and Beau. I hope that you all did as well.
- [68:33]
And I want to just thank them again.
- [68:34]
I really appreciate them both taking the time to join us on the podcast. Also, a big shout out to our sponsor, Cozy Earth. Mother's Day is right around the corner,
- [68:44]
so be sure to go check out
- [68:45]
their website@www.cozyearth.com for all of their amazing presents for that special mom in your life. And don't forget to use the promo code Duologue at checkout for 20% off. If you enjoyed this episode, please rate or review us on Apple Podcasts or Spotify or wherever you get her podcast. We release a new episode every Wednesday, so until next Wednesday, this is Leslie. And thanks for listening to Duologue.