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Santa Claus is coming to town…

December 24, 2013
Minsky, McCormick & Hallagan

Let’s hope he doesn’t get stopped at the border.

Well known as a man of many elves, holiday cheer, candy canes, and toys, there is a lesser known side of Santa Claus:  the outlaw. Surprised? You shouldn’t be. The man can’t fly around the entire world in one night, crossing international borders completely undetected without butting heads with law enforcement.

Santa Claus has a rich history of run-ins with the law, particularly with respect to immigration. In the days of cavemen, there were no borders so the sleigh (really an oversized flying carpet at that time—we the species were pre-metal back in the good ole’ Stone Age) didn’t face any man/society-made obstacles. Once borders were invented, however, things became a bit trickier for the great mysterious Claus. Throughout the history of the world, the governments of empires, countries, states, provinces, cities, towns, etc., have all had Mr. Claus on their naughty list at one point or another.

Originally, Claus refused to register with the appropriate authorities when exiting/entering U.S. airspace. He did so not out of malice or out of disregard for the law, but rather because one of the keys to his success is his ability to transverse all boundaries without detection. Santa needs to be believed in rather than tracked and documented with an I-94 Arrival/Departure record. However, eventually as U.S. immigration law became more complex and the stakes became higher if he were to be caught in the U.S. out of status, Claus decided that his ability to enter the United States without inspection was just not worth the risk of invoking a three or ten year bar to re-entry. Such bars to re-entry occur when an immigrant remains unlawfully present in the United States for over 6-12 months. Claus just couldn’t bear the thought of all the little boys and girls in the United States receiving nothing—not even coal—for years on end.

Below are some of the highlights of Santa Claus’s varied history and experience with U.S. immigration. Santa has authorized us to share the details of his myriad cases so that you too can learn from his experiences and stay on USCIS’s nice list.

Electronic System for Travel Authorization (ESTA). First, Santa attempted to travel with Electronic System for Travel Authorization (ESTA) so that he could avoid the process of obtaining a visa through an embassy or consulate. For some eligible travelers, a U.S. visa is not required for entry due to the Visa Waiver Program. Santa assumed he’d be eligible for ESTA, but quickly realized that was a no-go as no visa waivers are available for citizens of the North Pole.

It was then that Santa started using visitor visas to cover his U.S. travel for up to six months at a time. These visas were able to cover Claus for both work and play.

B-2 – Visitor visa. For play, Claus opted for the B-2 visitor visa, which would enable him to partake in tourist activities. Even Kris Kingle himself needs a break from his whirlwind lifestyle. Battling all sorts of weather, ranging from Africa’s desert heat to the North Pole’s bone-numbing cold, Santa likes to kickback as a B-2 visitor in the heart of the Lone Star State, all while indulging in Tex Mex – the polar opposite of gingerbread cookies.

B-1 – Business Visitor visa. Beneath the glitz and glamour of being the world’s number one provider to all good girls and boys lays a lucrative business that takes place in southwest Colorado. As a rigorous reindeer trainer, meticulous accountant, and Elf Academy educator, the man of many faces spends a good chunk of each year tending to his enterprise, Kringle, Inc. in B-1 business visitor status. However, much to Santa’s avail, B-1 business visitors are only authorized to do non-productive work, such as attending meetings, etc. Investigators viewed Claus’s B-1 work to be productive in nature, ultimately finding that the company abused U.S. immigration processes by allowing Claus to work in the U.S. while posing as a mere business visitor. Kringle Inc. was fined handsomely and in fact held the record for largest immigration settlement for many years until Infosys recently took the record. Needless to say, many children received coal that year, as Claus had to expand the naughty list to cut costs in light of the fines.

After the debacle with Immigration and Custom’s Enforcement and the hefty fines that ensued, Claus decided to pursue a long-term solution to his immigration woes. Claus started to get serious about his immigration status, conveniently around the same time that he started to get serious about his relationship with his future wife.

K – Family-based immigrant visa for fiancés of U.S. citizens or legal permanent residents. Before she became the iconic Mrs. Claus, Mary Mistletoe was a successful business-woman. Her mom-and-pop sweets shop was rumored to have the best cookies in the world and eventually attracted the attention of one jolly bearded man, who walked into her life and swept her off her feet. They fell in love and Mary followed Claus to the North Pole to set up shop there. As an American citizen, Mary attempted to petition for Santa while they were engaged. If their petition got approved, Santa would be able to become a Legal Permanent Resident of the United States, travel with his green card, and eventually become a citizen. However, the star-crossed couple encountered a problem:  those petitioning for fiancés or relatives must prove that they can financially support their loved one through an Affidavit of Support. Unfortunately, after years of life in the North Pole, Mary no longer met the financial requirements for the Affidavit of Support as candy canes are not an acceptable currency in the United States.

Mary and Santa didn’t let that hindrance stop them. They got married in the North Pole, honeymooned in the South Pole, and then got down to business exploring their immigration options for Claus. Mary moved her candy shop to Colorado to save up funds (in US dollars) so that one day she could afford to file a marriage-based immigrant petition for her holly jolly husband so that he could become a permanent resident. In the meantime, Claus decided to focus on his employment-based immigration options.

R – Nonimmigrant visa classification for religious workers. Due to his affiliation with the Christian holiday of Christmas, Claus was optimistic that the R-1 classification for religious workers might be an excellent option for him. Little did he know that this classification was designated as high risk for fraud. With his multiple identities of Kris Kringle, Papa Noel, St. Nicholas, etc., and his reputation as an imaginary figure, Claus decided that he’d better opt for a secular way to proceed.

H-1B – Employment-based Nonimmigrant visa for workers in a specialty occupation. This classification is generally reserved for those professionals who have attained at least a Bachelor’s degree in a field related to the proposed occupation. There is a cap to the amount of H-1B visas available as well as a limit to the amount of time one can spend in H-1B status (6 years). With a Bachelor’s degree from Santa School and more than sufficient experience in spreading holiday cheer, sleigh driving, international toy distribution logistics, and discerning the naughty from the nice, Kringle Inc. was certain that Claus would be a shoe-in for H-1B employment. However, he had to stop using this classification after he didn’t win the cap lottery. It’s okay, he was at his max-out date anyways.

L-1 – Employment-based Nonimmigrant visa for intracompany transferees. Companies can use this classification to transfer managers, executives, and employees with specialized knowledge from a branch abroad to one in the U.S. For a while, Santa carried out his work in the U.S. as an intracompany transferee with specialized knowledge. The parent company Kringle (North Pole) Limited wanted to utilize his specialized knowledge of sleigh flying, reindeer steering, international logistics, and high speed toy manufacturing to increase its North American presence at its U.S. location, Kringle, Inc. Initially this proved to be a successful route, but as USCIS changed its views on what qualifies as specialized knowledge, Claus encountered lengthy requests for evidence and ultimately a denial from the Service. Suddenly driving a sleigh with flying reindeer wasn’t special enough. It was no longer considered “unusual” or “unique” to travel the circumference of the globe in one mere eve distributing toys to all the children. His “advanced” knowledge of the naughty/nice lists and how they apply to the U.S. market just wasn’t up to USCIS’s snuff.

While in valid L-1B status, Claus once again attempted to start the process to adjust to permanent residence…

PERM – Labor Certification process through the Department of Labor. When a U.S. employer wishes to sponsor a foreign employee so that he or she may become a permanent resident, the employer is first required to test the U.S. job market to ensure that the job offered to an immigrant could not be filled with a qualified U.S. citizen or legal permanent resident. A few years ago, Kringle Inc. attempted to file a PERM on Santa’s behalf. But with all the other Santa imposters roaming around the department stores, malls, and street corners of the United States, the Department of Labor couldn’t justify approving Claus’s labor certification. From its perspective, the U.S. job market was already saturated with jolly bearded men in red suits.

Fortunately, by this time, Mary’s business was back in full swing and she was able to afford supporting Claus. The couple quickly filed an I-130 Immigrant Petition for an Alien Relative and after it was approved filed an I-485 application for Claus to adjust to permanent resident. The year Claus received his green card, even the naughtiest of the naughty girls and boys received every toy they’d ever hoped for.

However, Claus’s joy was short-lived. As the duties of being the world’s most celebrated international toy distributor required that Claus travel most months out of the year, he faced the threat of having his green card revoked. When a legal permanent resident needs to be outside the U.S. for extended periods of time, such as over six months, this can trigger extensive questioning at the airport. This was the case for Claus, as he was found to have abandoned his permanent residence.

It was at this point that the distraught couple contacted the attorneys at Minsky, McCormick & Hallagan. Feeling as if no other options remained, they wanted to explore the possibility of filing an EB-5 petition, which allows those who invest at least $1 million in the U.S. economy and employ at least ten U.S. citizens or legal permanent residents, to become a legal permanent resident. While this would be an economic hardship for the Claus’s and Kringle, Inc. they felt they had no choice. Our attorneys quickly assuaged Claus’s fears and advised him of a simple solution to avoid abandonment of permanent residence and to keep his green card from being revoked:  obtaining a re-entry permit. After we filed the form I-131 and obtained Santa’s re-entry permit, Claus coasted through the next three years until he became a citizen. At his oath ceremony, the elated Claus promised USCIS that they would forever remain on the nice list.

As one who has encountered just about every single immigration scenario imaginable, the great Claus knows how important it is to have a functional immigration system. That said, what does Santa want for the holiday season? #ImmigrationReform. As 2013 was the year of missed opportunities, at least in respect to immigration reform, certain members of the U.S. House of Representatives might not be surprised to find coal in their stockings this year.

If you or someone you know, like Santa Claus, have questions about your immigration options, please contact an attorney at Minsky, McCormick, and Hallagan, P.C.

Happy Holidays!
—the Minsky Elves

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