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The most legally aggressive part of Obama's immigration plan is one nobody is talking about

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  • The most politically charged aspect of the immigration debate concerns the fate of the millions of mostly Latino, mostly working-class unauthorized immigrants living in the United States.
  • But the most aggressive move he's making concerns something else entirely — foreign technology entrepreneurs.
  • A memo released today by the Department of Homeland Security clarifies that Obama is planning to increase the number of foreign entrepreneurs allowed in.
  • A memo from the Council on Economics Advisors suggests the scale of this program will involve around 33,000-53,000 new migrants.
  • The legal basis for this action involves a break with precedent that is much more dramatic than the more-controversial deportation protection being given to unauthorized immigrants who are already here.

What Obama is doing for foreign entrepreneurs

The DHS memo states that the president is directing the US Customs and Immigration Service to devise a program that would, on a case-by-case basis, let foreign entrepreneurs move to the United States. There are two broad limits laid down for the sort of entrepreneurs who would qualify. One is a guideline that the entrepreneurs in question be "awarded substantial US investor financing" or otherwise be involved in "the development of new technologies or the pursuit of cutting-edge research." The other is a stipulation that anybody allowed in under this initiative be prosperous enough to be ineligible for federal benefits programs, including Obamacare subsidies.

In other words, this means an Israeli technologist with backing from American venture capitalists should be allowed in but an Indian cook looking to open a restaurant should not.

Why does the President have the authority to do this?

The DHS memo cites section 212(d)(5) of the Immigration and Naturalization Act which grants the executive branch authority to "parole" people into the United States when there is a "significant public benefit" to doing so. The text of the statute places very little limitation on the scope of Significant Public Benefit Parole, so the administration appears free to argue that the entry of foreign technology entrepreneurs would be beneficial.

This is not, however, the traditional use of SPG authority.

Historically, most paroles have been humanitarian paroles. SPG parole, as the Department of Homeland Security itself says "is generally used for aliens who enter to take part in legal proceedings." In other words, if a foreign witness is needed for an important case a law enforcement agency can submit a request for parole. The Congressional Research Service notes, however, that SPG parole has been used at least once for economic reasons when 2,468 Hong Kong Chinese were paroled into Guam to "support defense projects" following a typhoon.

In other words, this is a much larger break with precedent than the more-debated deferred action program for already-resident immigrants where the White House can point to the broadly similar George H.W. Bush action.

Why is nobody talking about this?

The administration appears to have structured this particular initiative to be narrowly drawn to minimize political backlash.

Silicon Valley is hungry for more skilled migrants, and Republicans have been eager to appear sensitive to those concerns even while remaining hostile to any form of "amnesty" for current unauthorized residents. The specific prohibition on allowing parole for anyone who would be eligible for public benefits should firewall this initiative from one major source of controversy. And the implied focus on entrepreneurs who are already backed by US-based venture capitalists means the individual beneficiaries of this program will, by definition, have powerful political advocates inside the United States.