Santa's Christmas Eve Visit to the U.S. in 2004 Posted Dec 17, 2004 ©MurthyDotCom Last year, we at The Law Office of Sheela Murthy, P.C. shared with MurthyDotCom and MurthyBulletin readers a very popular and much sought-after, in-depth analysis on the immigration law-related options for Santa Claus. That December 19, 2003 article, How is Santa Claus Coming to Town is available on MurthyDotCom. While most of the analysis and strategies still apply for Santa's safe entry to the United States from the North Pole for Christmas Eve 2004, the ever-changing nature of immigration law requires a fresh review of this important issue. We appreciate the difficult and arduous journey he makes each year to visit us in the U.S. Our article should help Santa to be better prepared for any new immigration challenges as he comes to town once again, bringing toys and goodies, spreading happiness and goodwill all around! ©MurthyDotCom Visa Waiver Program ©MurthyDotCom As of October 26, 2004, should Santa choose to use the Visa Waiver Program (VWP) to enter the United States, he will need a Machine-Readable Passport (MRP). While the senior officials at the U.S. Customs and Border Protection (CBP) have indicated that they may parole VWP visitors the first time they try to enter without the proper passport, this would undoubtedly cause Santa unnecessary delays at a U.S. port of entry. Further, while the CBP has discretion to parole VWP visitors without MRPs into the U.S., they are not required to do so. If they believe that Santa may be a threat to national security, parole will not be granted. While Santa is expected to embody a generous spirit, this is discretionary for CBP officers. ©MurthyDotCom It will also be required that Santa register through US-VISIT, which would not have been needed under the VWP last year. He may want to consider arriving in the U.S. a little earlier this year, in case of any unanticipated delays, just to be sure that he gets through the port of entry well in time for Christmas Eve. ©MurthyDotCom Is H1B an Option? ©MurthyDotCom Though the H1Bs available for those in specialty occupations have never been the primary option for Santa, it would be impossible for him to obtain a first-time H1B now, since the cap has been met for FY2005. If he held an H1B status within the last six years, however, he could pursue an H1B extension or enter on the previously-issued H1B approval notice, as long as the H1B visa stamp is still valid in Santa's passport. ©MurthyDotCom Unless he can show that his work is a specialty occupation that normally requires a minimum of a baccalaureate degree, for example, the making of customized toys requiring a degree in mechanical engineering or finding the routes to circuitous and difficult-to-find home addresses requiring a degree in Zoning and Land Use Planning, the USCIS could deny Santa's H1B petition. If he engages the services of a knowledgeable lawyer, a strong argument should be made that he should not be subject to the 6-year limit on H1Bs, since he plans to remain in the U.S. for much less than 6 months each year or will only enter the U.S. intermittently to monitor the naughty and nice behavior of boys and girls. ©MurthyDotCom Is H2B an Option? ©MurthyDotCom The H2B cap may be met this year before Santa can obtain this status. If this is the option he has chosen, we hope that he had the help of a good lawyer and applied for H2B status about 6 months ago! H2Bs are for temporary workers in essential occupations and no one can argue that Santa's work is not essential to the well-being of the U.S.! ©MurthyDotCom Is L-1 an Option? ©MurthyDotCom If Santa Claus pursues the L option, we would strongly advise he seek the L1A, available for senior executives and managers, if he is qualified. Even if the USCIS grants him the L1A status, any elves accompanying him will at best be able to obtain the L1B, available for those whose work requires specialized knowledge and training. For some time now, the L1B has received greater scrutiny and bad press. Since Santa has to travel to so many "client sites," the L1B may be denied due to a misperception that he would be displacing U.S. parents, who otherwise would have the job of providing toys to their children themselves! ©MurthyDotCom Is Santa on a "No-Fly" List? ©MurthyDotCom Given some of the high-profile people on the "No-Fly" list; it would not be surprising to find Santa, a person with so many different names, on that list. As we know, his many aliases include, but are not limited to, St. Nicholas, St. Nickalaus, Santa Claus, Father Christmas, and Chris Kringle. Fortunately, the Transportation Security Administration (TSA) recently created a system to clear a person for travel if his or her name has appeared on certain watch lists. Unfortunately for Santa, however, this process can take up to 45 days, and it was not announced 45 days before December 24, 2004. If his name should appear on a watch list, this presents a strong possibility that Santa will not have completed this clearance process in time for his travel this year! Delays at the port of entry may remain unavoidable again in 2004, so we recommend that Santa travel to enter the U.S. well before December 24th. ©MurthyDotCom Private Bill Option? ©MurthyDotCom Santa Claus may be able to have a senator or representative in Congress sponsor a Private Bill to accord him a special immigration status. Although he is generally universally liked and admired, any person with such high status is always subject to scrutiny. Getting a divisive Republican and Democratic Congress to agree upon granting one person a private bill would not be easy. The momentum to complete the passage of a Private Bill for Santa is unlikely for this year, as Congress adjourned earlier this week. ©MurthyDotCom Need to Verify Unlawful Presence Issue ©MurthyDotCom We certainly hope that Santa has not been flying his reindeer sleigh, either intentionally or inadvertently, without first stopping at a U.S. CBP port of entry every year. Multiple illegal entries to the United States, resulting in one's having been unlawfully present for an aggregate of 180 days or more, could result in Santa's having a permanent bar to reenter the U.S.! ©MurthyDotCom We believe, however, that Santa Claus has been law-abiding in his trips to the U.S., as his arrival and presence are well-publicized. The U.S. government has the ability to track and assist him through the National Oceanic and Atmospheric Administration (NOAA), working in concert with the North American Aerospace Defense Command (NORAD). MurthyDotCom and MurthyBulletin readers concerned about Santa's safe entry to the U.S. and his travels are able to follow his progress, as Santa is being tracked by NORAD (in six different languages!) for the fiftieth year. ©MurthyDotCom Our Recommendation ©MurthyDotCom To avoid the new and often difficult immigration issues facing him each year, we would recommend that Santa seriously consider first filing to become a lawful permanent resident and, after that, filing to become a U.S. citizen. Although this process could take several years to complete, he would be able to avoid the ever-changing immigration laws and regulations for future years. As to whether becoming a citizen of the United States could in any way delay Santa's travels to other countries to deliver gifts to those little children before Christmas; this hopefully would not be an issue for concern. Most other countries have less complex immigration laws than the United States. For those familiar with immigration laws in other countries, the U.S. system is considered one of the most sophisticated and complex systems with various work- and non-work-related nonimmigrant and immigrant options and an ever-increasing scrutiny for various levels of security checks, especially since September 11, 2001. ©MurthyDotCom In conclusion, our entire team at The Law Office of Sheela Murthy once again salutes Santa Claus for his good work, and remains on call this December, should he need any immigration assistance! © 2004 The Law Office of Sheela Murthy, P.C. All Rights Reserved
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