Immigration Options for Santa's Helpers
Posted Dec 23, 2005
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In recent years, readers of MurthyDotCom and the MurthyBulletin have been both educated and amused as we focused on the legal options available under U.S. immigration law for Santa Claus to enter the United States in time for Christmas. [Please refer to How is Santa Claus Coming to Town? (Dec 19, 2003) and Santa's Christmas Eve Visit to the U.S. in 2004 (Dec 17, 2004), available on MurthyDotCom.] A gentleman whose name was legally changed to Santa Claus contacted our firm earlier this year to assure us that he had lawfully entered the U.S. (also, that he has enjoyed reading our articles about him). Reassured, therefore, of Santa's ability to travel to, and within, the U.S., we turn our attention this year to his helpers, the elves, to explore options for them to enter the U.S. in the important work they do, help to distribute toys and gifts before Christmas morning.
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A, Diplomat
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If Santa Claus was given A-1 status, as an ambassador, then his attendants, servants, or personal employees could receive A-3 status to accompany and assist the principal A-1 person, i.e. Santa Claus. Unless Santa's status as an ambassador, public minister, or career diplomat is official and recognized by the governments of both countries, however, this would not be a viable option for him or his elves. We do note that if Santa is an A-1, Mrs. Claus would also be able to come to the U.S. in A-1 status as his dependent.
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Visa Waiver Program or B
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If Santa's helpers are accompanying him merely to help deliver all the toys and are not to be paid in the U.S. for their work, they may be able to enter under the Visa Waiver Program (VWP) if they are from a country that has a VWP agreement with the U.S. If not, then they may need to hold B-1 visitor for business visas. If they have B-1s, we hope that they are multiple entry, to allow the elves to return in the future. They must show their intent is to stay only for a short duration in order to obtain an approval and must not perform any work that is not consistent with the B-1 or VWP status. As reported in our 2003 article, sited above, Santa may originate from Germany, the Netherlands, or Finland - all of which are designated as VWP countries. If so, we hope that he and the elves had time to read and act upon our June 17, 2005, MurthyBulletin article about the need for a Machine Readable Passport, CBP Reminder : Machine Readable Passports Required for VWP Travel.
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C or D, Crewmen
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Certain crewmen are permitted to obtain C-1 or D-1 status. The nature of the sleigh as an aircraft or a vessel is still in debate. If Santa's sleigh is considered a vessel, C-1s or D-1s may be an option. C-1s would require that the elves be passing in immediate and continuous transit through the U.S. On the other hand, D-1s would permit them to remain in the U.S. up to 29 days. Unfortunately, this is shorter than the duration between Santa's coming to town in the Thanksgiving Day parade and the delivery of toys on Christmas Eve. The elves also would not be allowed to work in the U.S., though arguably distributing toys to good children may not be considered "work" as defined by the U.S. Department of Labor since there is no compensation expected on the part of the elves or helpers.
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E-1, Treaty Trader
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If Santa qualifies for E status, as a treaty trader, his employees may be able to obtain E status if they are from the same country as Santa and depending upon the nature of their work. They must be deemed to be executives, supervisors, or non-supervisory persons with special qualifications as essential employees. While most would likely not qualify as executives or supervisors, it is possible that many would qualify as essential employees through their unique knowledge and skill in the care of flying reindeer and in their quick, adept assembly of toys with “some assembly required.”
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G, International Organization
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It is unclear whether the U.S. government recognizes the government where Santa lives. Since the exact location of Santa's home is unknown, it is possible that it is outside the boundaries of a formal, recognized country with a recognized government. If the U.S. government does recognize the government of Santa's country, however, then G-1s may be possible for any of Santa's helpers who are on permanent missions to the U.S.; should they need to remain in the U.S. to make special, large toys, for example. G-2s may be an option if the helpers are a temporary delegation to the U.S. If Santa's government is not recognized as an official government by the U.S., then it may be possible for the elves to obtain G-3 status. If Santa's operation is considered an international organization, his helpers may be able to obtain G-4 status. If Santa has G-1, G-2, G-3, or G-4 status, he may be able to bring the elves as G-5s if they are considered his attendants, servants, or personal employees.
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H1B, H-2, or H-3, Temporary Workers
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It is questionable whether Santa's helpers would qualify for H1Bs, as they would need to be working in specialty occupations that require at least a baccalaureate degree in the particular field. Perhaps some of the more technically-oriented elves - those involved with flight logistics, navigation, and generally defying the laws of physics - hold the necessary qualifications. The same is true of those who design the electronic toys and video games that Santa brings, as well as any who qualify as medical or veterinary personnel, traveling with Santa in the case of such emergencies. Any who meet the requirements would need to have already obtained their H1Bs, since the H1B cap has been met for this fiscal year. For any of Santa's helpers who qualify and have U.S. masters' degrees, there still were a few numbers available as of early December 2005, but those are going quickly.
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H2Bs are for seasonal or peak-load employees. Since the delivery of toys in the U.S. is seasonal work, the H2B is a viable option. These can only be filed once a temporary labor certification has been approved by the U.S. Department of Labor. It will be necessary for Santa to have already sought and obtained H2B visas for his elves, unless they qualify as returning workers, as the H2B cap was reached in mid December.
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H-3s for trainees are questionable since it is not clear why Santa's elves would need to come to the U.S. under training. However, if Santa is conducting operations internationally, as is likely, then he may have training programs set up in the U.S. for his helpers that will permit them to work more effectively in one of his other operations abroad. Thus, this might be an appropriate category for some of the novice helpers or those being trained for more sophisticated positions.
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I, Media Representatives
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If Santa has his own newspaper, or other published media, he may want to bring one of his helpers as a journalist to report on his trip. This elf could qualify for I status.
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J, Trainees
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Similar to the H-3 program, if Santa has a training program set up in the U.S., he may be able to send helpers on J-1 status for training. The trainee program is but one of many types of J-1s. If he wants to use this category, it will have to be sponsored by an organization approved by the U.S. Department of State (DOS).
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L, Intra-Company Transferees
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Assuming that Santa has helpers who work in his operations abroad for one year, he may be able to bring his elves to any U.S. operations on L1As if they are managers or executives, or as L1Bs if they are persons with specialized knowledge. Santa will need to have a U.S. company for this purpose, however, including a physical location. In some instances, companies can obtain blanket L-1 petition approvals if they satisfy certain conditions, to make it easier for their employees to obtain the L-1s. If, however, Santa's operations are nonprofit, then a blanket L-1 petition is not permitted. This does appear to be the case, since Santa accepts only milk and cookies in the way of compensation for the gifts and toys he delivers.
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O, Extraordinary Ability
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If any of Santa's elves has extraordinary ability in the sciences, arts, education, business, or athletics, that helper may be able to obtain O status. Given the longstanding, remarkable accomplishments, and the ample documentation of those accomplishments in the art of making unique toys, for example, some of the helpers just might qualify under this category. Of course, this may cause some jealousy among the other elves, so Santa may want to use this category only for those impervious to being shunned from any reindeer or other games.
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P, Performers
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Some of Santa's helpers who may agree to appear in parades or at various retail venues throughout the U.S. may qualify as performers. If they are entering solely to perform, teach, or coach in a culturally unique program they may qualify for P-3s.
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R, Religious Workers
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It is unlikely that any of Santa's helpers would qualify as R religious workers since Santa does not appear to be affiliated with one specific religious organization. Although he does charitable work to spread good cheer throughout the world, and he is associated with Christmas, there are many individuals who perform charitable work who are not employees of organized religious entities.
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TN, Canadian and Mexican Citizens
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If any of Santa's elves or other helpers are from Canada or Mexico, they may be able to enter on Trade NAFTA or TNs. They would have to be coming to work in one of the listed TN positions and have at least bachelors' degrees or appropriate credentials that show that they are professionals. There are a number of TN positions that might be especially beneficial to the task of delivering all those toys to children around the world in a single night - engineers, management consultants, mathematicians, meteorologists, physicists, and scientific technicians, for example. Others who might be included in Santa's entourage are social workers and registered nurses for children in need or any mishaps along the way. We also note that Santa could bring lawyers under the TN provisions.
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Conclusion
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Regardless of the period of time that Santa's elves or other helpers might remain, Santa should have plenty of options under U.S. immigration law to bring members of his team to the United States this year. We at the Murthy Law Firm look forward to hearing from Santa again, should he need any assistance in these important immigration matters!