Santa’s Visa Options for Coming to Town on Christmas Eve21 Dec 2018
While scientists have been known to investigate whether it is physically possible for Santa Claus to travel around the world in just one night, they tend to overlook the legal implications of the jolly man’s travels to bring toys and gifts to children in the United States. To that end, we at the Murthy Law Firm now explore the legal criteria of the many different options for Santa to consider, so that he can safely enter the U.S. on December 24th (i.e. Christmas Eve) to deliver toys and goodies to children all across the country.
Visa Waiver Program Option for Santa
It is questionable whether Santa was born in the Netherlands or Germany. However, many believe that he currently resides in the Arctic Circle in the country of Finland. In a 2001 application to the U.S. Department of Transportation for a flight certificate, Santa Claus described himself as a resident of the North Pole and citizen of the world. But, this does not clarify whether he has a passport from a VWP country. So, assuming Santa has a valid passport issued by any of these three countries, he could request clearance through the Electronic System for Travel Authorization (ESTA) to be admitted to the United States through the visa waiver program (VWP). If approved, he would need to depart the country within 90 days, but this should be no problem, since he has less than one night to deliver toys to good boys and girls all over the world.
One thing he cannot do while on the VWP is accept wages for any work that he does in this country. We think that the cookies and milk left by many children to sustain Santa while he works would fit within the “incidental expenses or remuneration” allowed for business visitors. Since the incidental expense reimbursement cannot exceed the actual reasonable expenses incurred in travel, Santa should limit himself to only what he needs during his visit.
Still, even if Santa has a passport from a qualifying country, it seems likely that he would need a waiver to be able to use the VWP. This is because he travels to all countries each year, including those on the U.S. “naughty” list. Per the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, anyone who has traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen on or after March 1, 2011, is prohibited from using the VWP unless a waiver is granted by the U.S. Department of Homeland Security (DHS).
It is hard to imagine the DHS denying a waiver to Santa. But, just in case he does not have a passport from a VWP country or is unable to get his waiver in time for his Christmas Eve flight, let’s review his other potential immigration options.
A Visa Option for Santa
Though many consider Santa a goodwill diplomat, it is uncertain whether he would be eligible for the A (diplomat) visa. Use of an A visa would, however, explain how it was that, in the modern Christmas classic song, Grandma Got Run Over by a Reindeer, Santa did not face legal troubles. Diplomatic immunity, a benefit of the A visa, would have saved Santa from criminal charges and a civil suit.
B-1/B-2 Visa Option for Santa
It is possible that Santa could obtain a B-1/B-2 visitor’s visa. He intends to leave on the very same night he enters the United States, and his wife, elves, and reindeer all live outside the country, so he should have enough evidence to show that he has the proper nonimmigrant intent. Santa also has a well-established toy-making business abroad, to which he must return. Further, since he is a person who can afford to make and give away toys to children around the globe, clearly Santa has enough funds to avoid becoming a public charge.
E-1/E-2 Visa Option for Santa
If Santa Claus is from a country that has a qualifying commercial treaty with the United States, and he is willing to invest money in this country for a second workshop, he may be able to obtain a treaty trader or treaty investor visa. Santa clearly has essential skills that are “indispensable to the success of the enterprise.” Yet, Santa may wish to review the MurthyDotCom InfoArticle, Overview: E Visas for Traders and Investors to fully appreciate the amount of investment and commitment required to receive the E-1 or E-2 visa. For a once-a-year trip, he may be better off with a different visa option.
H1B Visa Option for Santa
There is nothing to indicate that one needs a bachelor’s degree or its experiential equivalent to make toys and to operate the sleigh. The technical aspects of the toy manufacturing and business management are all performed abroad. Therefore, the additional problem of needing a sponsoring H1B employer need not be addressed here.
Finally, even if all of the other problems were solved, Santa would still need to overcome the H1B cap limitation issues, meaning his H1B employer would need to have filed the H1B petition for him in April 2017. So, this option faces many challenges, including the need for advance planning.
H2B Visa Option for Santa
Santa is definitely a seasonal or peak-load worker. There is a question here of who would be the sponsoring employer. The sponsoring employer must provide housing for the beneficiary and advertise for qualified U.S. workers. A certain department store advertises that it can only hire the real Santa Claus, so that store may be a candidate to serve as petitioner.
That being said, under the U.S. Department of Labor laws and regulations, the store cannot discriminate in its hiring practices, and there may be persons in the United States who are just as capable as Santa Claus at being nice to children, making toys, and operating a sleigh for toy delivery. Still, it would be hard to find a U.S. worker as skilled at going up and down chimneys with a large bag of toys. So, the H2B may provide an option for Santa Claus.
L-1 Visa Option for Santa
If Santa Claus has a business operating in the United States, he should qualify for an L-1 visa. At the least, he possesses specialized knowledge needed to qualify for the L1B, and he certainly has worked abroad for at least one of the last three years. He is the creator of the proprietary naughty or nice list, as well. Santa may also qualify for the managerial / executive L1A visa, as he is managing a team of hard-working elves and reindeer. And an L-1 petition can be filed without too much advance planning, as premium processing is available, much in the same way many stores offer special deals for last-minute shoppers.
O-1 Visa Option for Santa
Santa Claus must have extraordinary ability “in the sciences, arts, education, business or athletics …” to qualify for the O-1 visa. This, however, may be tough to prove. One is normally compared to others in the field to determine whether his/her ability level is extraordinary. Since Santa Claus has no true peers, it would be difficult to show that he has greater abilities than others in his field. At best, one could argue that he is better than the imposters of the world, because he is the only one who can really make it around the globe and deliver toys in just one night.
Unfortunately, O-1 status has been viewed with more skepticism by the U. S. Citizenship and Immigration Services (USCIS) in recent years, so this argument may have little chance of success. Then again, it’s hard to imagine any USCIS officer being such a scrooge as to deny that Santa possesses extraordinary abilities.
P-3 Visa Option for Santa
Santa has definitely been involved in a culturally unique program for a substantial period of time. A P-3 visa petition would require a lot of documentation from Santa: if a P-3 will be performing in more than one geographical area, he must submit an itinerary. This means that Santa will have to turn over his U.S. good-boys-and-girls list to the USCIS, and last minute changes may be impossible or cause U.S. Immigration and Customs Enforcement (ICE) to start tracking Santa.
R Visa Option for Santa
Santa Claus is sometimes referred to as “Saint Nicholas” or “Saint Nick,” and his good deeds are closely affiliated with a major religious holiday. Therefore, there is a strong argument that Santa Claus qualifies as a religious professional. It is unclear which church can claim the strongest affiliation since Santa appears to be nondenominational, and this may create problems for the approval of the R-1 religious worker petition.
Green Card Option for Santa
While there may be legitimate ways that Santa could obtain a green card, maintenance of the green card makes it an unlikely option for Santa. Unless he opens operations in the United States, he currently does not have sufficient ties to America, as he only visits once a year. Eventually, the U.S. Customs and Border Protection (CBP) inspectors at the port of entry would likely determine that his green card has been abandoned, and it would be much harder to obtain most of the nonimmigrant visas after that point, since he had previously expressed an intent to immigrate.
Port of Entry Issues for Santa
In years past, Santa faced delays when encountering CBP officers at the port of entry. Not only does he wear boots and travel with livestock, the gifts he carries are wrapped with brightly colored, festive reflective paper. With all of this unusual attire, baggage, and flying, four-legged creatures, it appears that Santa was always destined to be subject to close scrutiny when being admitted to the United States.
Fortunately, CBP proactively took steps to help Santa avoid these potential hassles at the port of entry. This was accomplished by enrolling Santa in the global entry program! (See CBP Enrolls Santa in Global Entry, CBP.gov, 23.Dec.2014.)
Santa should be reminded that he will receive an electronic I-94 admission record again this year, as explained in the MurthyDotCom NewsBrief Emerging Issues with I-94 Card Automation (15.Jul.2013). Even though he is quite busy, Santa should take a moment to verify the information in the electronic record.
Name Issues for Santa Claus
As discussed in the InfoArticle, Last Name First: No Joking Matter (02.Oct.2017), an applicant for U.S. immigration benefits must be sure to use his or her full legal name on all documents, and to ensure consistency across official documents and immigration application forms. Santa Claus has changed his name several times, from the original Dutch “Sinter Klaas” and German “Christkindl,” to “St. (or Saint) Nicholas,” to the current Finnish “Joulupukki,” and, of course, the Americanized “Santa Claus.”
While it is understandable that Santa Claus just wanted to make his name easy for all to pronounce, for immigration purposes it would be far better if he had stuck with his original name, Sinter Klaas. His birth certificate probably is in the name of Sinter Klaas, while his marriage certificate may be under St. Nicholas, his sleigh driver’s license Saint Nicholas, and his passport Joulupukki. These many names are certain to befuddle the CBP and the USCIS, and cause problems at the port of entry.
The use of biometrics may solve any identity issues. However, it is recommended that Santa pick one version of his name and change as many of his official documents as possible to be in that name. Further, he should ensure that all immigration applications are in that name for the future. If any inconsistencies remain, he should submit affidavits explaining the reasons for the different names.
Though Santa may not qualify for every type of visa, it appears that he should have enough options to legally enter the United States this year. Let us hope that our immigration system never raises the borders so high that this beloved visitor would be turned away at a port of entry and disappoint millions of children awaiting their presents and the spirit of the season.
This NewsBrief is a favorite in the immigration law community. We periodically update the legal content and rerun it at this time of year for your enjoyment. Happy Holidays from the Murthy Law Firm and MurthyDotCom!
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