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How is Santa Claus coming to town?

Only people that have gone through any immigration/visa issues might find this funny... or at least groan with appreciation!

While scientists frequently discuss whether it is mathematically possible for Santa Claus to travel around the world in just one night, they generally overlook the legal implications of the jolly man"s travels. Here, we explore his visa options in order to help him attain admission to the U.S. this December 24th!

Visa Waiver Program
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. As long as Santa has a passport that is valid for at least six months beyond December 24, 2003, for any one of these three countries, he will be able to enter the U.S. through the Visa Waiver Program (VWP). He will need to depart from the U.S. within 90 days of entry, but this should be no problem because he has less than one night to deliver toys to good boys and girls all over the world. Even if he comes to the U.S. on Thanksgiving to listen to children"s wish lists and does not leave until December 24, 2003, he will still be within the 90-day period. One thing he cannot do is accept wages for any work he does in the U.S. We think that the cookies and milk left for him by many children to sustain Santa while he works would fit within the "incidental expenses or remuneration" allowed for business visitors. Because 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.

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 a citizen of the world. This does not clarify whether he has a passport from a VWP country. Therefore, as we do with all immigration cases our Office considers, we will consider other options that may be available to him.

A Visa
Though many consider Santa a goodwill diplomat, it is questionable whether he would receive this visa. Use of an A (diplomat) visa would, however, explain how it was that, in the modern Christmas classic song, "Grandma Got Ran Over By A Reindeer", Santa did not have any legal trouble. Diplomatic immunity, which is a benefit of the A visa, would have saved Santa from criminal charges and a civil suit.

B-1/B-2 Visa
It is possible that Santa could obtain a visitor"s visa. He does intend to leave on the very same night he enters the U.S. Additionally, he has enough proof to show that he has the proper nonimmigrant intent as his wife, elves, and reindeer all live outside the U.S. He also has a well-established toy making business to which he must return. Further, a man who can afford to make and give away toys to children worldwide clearly has enough funds to avoid becoming a public charge. Some problems could arise from his traveling to certain NSEERS countries on the same night that he travels to the U.S. He may be marked as a security risk under the CLASS system or one of the other Department of State (DOS) databases. This possible complication may require Santa to apply early for his visa, to ensure that he will have received it by Christmas Eve. Otherwise, he may suffer the same fate as the Latin Grammy winners from Cuba, discussed in our September 12, 2003 article, "Latin Grammy Winners Unable to Obtain Timely Visas", causing Santa, too, to miss his big night - a daunting prospect for children all over the United States!

E-1/E-2 Visa
If Santa Claus is from a country that has a commercial treaty with the U.S., and he is willing to invest money in the U.S. for a second workshop, he may be able to obtain a treaty trader or treaty investor visa. Santa may wish to review our article, "Overview E Visas for Traders and Investors", to fully understand the amount of money and commitment he must make to receive this visa. For a once-a-year trip, he may be better benefited by a different visa.

H1B Visa
There is nothing to indicate that one needs a bachelor"s degree or its experiential equivalent to supervise the delivery of toys and to operate the sleigh. The technical aspects of toy manufacturing and business management are all being performed abroad. Therefore, the additional problem of needing a sponsoring employer need not be addressed here.
> Finally, even if all of the other issues were solved, there is a slight risk of running up against the 65,000 H1B visa cap before Santa could obtain the visa!

H2B Visa
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. However, the store cannot discriminate in its hiring practices, and there may be persons in the U.S. who could be nice to children and operate a sleigh to deliver toys as well as Santa Claus. It would be very difficult, however, to find a U.S. worker who is capable of going up and down chimneys with a bag of toys so quickly at all the homes in one night. So, if there were a sponsor, this may provide an option for Santa Claus.

L-1 Visa
If Santa Claus did have operations in the United States, he should qualify for an L-1 visa. At the least, he would have specialized knowledge to qualify for the L1B, and he certainly has worked at least one of the last three years at the company abroad. He should also qualify for the managerial / executive L1A visa, as he would have been the president or vice-president of operations at the company abroad. Premium processing is available, so there may still be enough time for this option.

O-1 Visa
Santa Claus must have extraordinary ability in the arts. This may, however, be difficult to prove. One is normally compared to others in his/her field to determine whether one"s ability level is extraordinary. Because 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 fake Santas of the world because he is the only one who can really make it around the world to deliver the toys in just one night. Unfortunately, Os have been viewed by the USCIS with more skepticism in recent years. This argument, that might have once worked easily, now has a lower chance of success. Given that Santa has many other options available to him, we would recommend that he pursue another course.

P-3 Visa
Santa has definitely been involved in a culturally unique program for a substantial period of time. A P-3 would require a lot of documentation from Santa. Moreover, if a P-3 will be performing in more than one geographical area, s/he must submit an itinerary. This means that Santa would have to turn over his U.S. good boys and girls list to the USCIS, and last minute changes may be impossible or cause ICE to start tracking Santa.

R Visa
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 because Santa appears to be nondenominational, and this may
> create problems for the petition.

Green Card or Permanent Residence
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 U.S., he does not have sufficient ties to this country, as he only visits once a year. Eventually, the port of entry inspectors would consider his green card abandoned, and it would be much harder to obtain any of the nonimmigrant visas after that point because he would have previously held immigrant status.

Port of Entry Issues
Santa must be pleased that he will no longer need to pass separately through customs and immigration at the border because the two have been combined in one agency, the U.S. Customs and Border Patrol (CBP). It is possible that Santa"s long beard may cover some of his facial features and prevent the CBP Inspector from being able to undertake a thorough biometric evaluation of Santa. In addition, his strangely bright red costume may cause a border agent to be suspicious of whether he might not be a person posing as the real Santa. Another disadvantage is that the border agent will have to determine whether the reindeer meet the livestock standards required to enter the U.S., and he may be required to pay duty on all the toys. In any case, it appears that Santa may be unable to avoid some type of delay in secondary inspection.

Name Issues
As discussed in our December 4, 2003 article, "Last Name First No Joking Matter", 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 in the name of Saint Nicholas, and his passport under Joulupukki. This is certain to befuddle the USCIS and cause problems at the port of entry. It is recommended that Santa pick one version of his name, change as many of his official documents as possible to be in that name, and ensure that all immigration applications are in that name. 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, we at The Law Office of Sheela Murthy take pride in considering the many varied options available to him. We would be happy to discuss them with him personally, so that he may be legally able to enter the U.S. in time for Christmas. Let us hope that, in our quest to protect our country"s borders, we do not hold him in secondary inspection overnight on Christmas Eve. Otherwise, this beloved person would not be able to take care of business that special night and millions of little children would be terribly disappointed!

by Sheela Murthy et al.