I’d like to share this very interesting question I got yesterday from my six-year old niece at our family Christmas party.  As I was talking to my auntie about US immigration, my niece, who was listening to our conversation the whole time jumped in and asked me: “Tito Mike, does Santa need a visa?” I usually answer questions without pause especially when its connected to my profession, but there’s always something about the innocence of a child and the questions they ask that even the most learned person will find themselves asking – hmmm, that’s a good question.  Of course, I said that he doesn’t need a visa.  As to whether he exists, well, that question wasn’t raised so I wouldn’t dare volunteer an answer.

For argument’s sake and for a bit of holiday mental exercise, let's imagine for a moment that US immigration rules apply to Santa.  Where does the analysis begin? Well, I would start out with his background and origin.  Common knowledge of Santa (and a quick internet search) shows a consensus that he is the legendary bringer of gifts to good children during Christmas Eve.  He is also known as Saint Nicholas, Kris Kringle, or Father Christmas.  And legend has it that he either lives in the North Pole or Finland.

Now, on Christmas Eve, when Santa takes a trip around the globe to deliver gifts to the good kids of the different countries, he would potentially have to pass through immigration checks in every country.  However, since his travel is stealthily made in the dead of the night, he can easily slip in and out of countries and borders without being detected.  However, then Santa enters the United States, or the North American Continent, he is easily detected by a satellite defense system called NORAD.

NORAD is the North American Aerospace Defense Command which is responsible for defending the airspace and seaspace of the United States and Canada.  NORAD provides advanced warning on any missiles or attacks entering North American air sovereignty.  Unbeknownst to Santa, for the past 50 years, NORAD has been tracking his flight paths.  So once he enters United States airspace, he will be directed to land at the nearest port-of-entry for immigration processing.

The question then becomes, does Santa need a visa? And if so, under what visa category would it be?  The answer to this depends on what activity Santa will engage in once he enters the United States. As we all know, he will be giving gifts to deserving children.  But if you add to the equation that Santa will be paid by the parents of the kids in the United States, then this is deemed as working.  As such, a working visa will be appropriate. 

If, on the other hand, his gift-giving activity is for free (which it really is), then Santa would only need a visitor’s visa since he is only coming into the United States temporarily.  So, depending on what Santa will do while in the United States, there is a specific visa available for him. 

However, if Santa declares that he is from Finland as legend has it, then he would not need a visa.  Finland is one of the countries under the Visa Waiver Program of the United States in which if you are a national of a country under VWP, you are able to travel to the United States without a visa if the travel is 90 days or less.  In Santa’s case, his trip to the United States is only for a maximum of one day.

Another consideration of not requiring a visa for Santa is that on December 24, 2008, the Minister of Citizenship, Immigration and Multiculturalism, Jason Kenney, declared Santa as a Canadian citizen with fully authorized re-entry rights.  So as a Canadian Citizen, Santa can enter the United States without a visa for a limited amount of time.

As a consequence, if you are living in the United States and you got a gift from Santa, then that only means two things – you were good this year and it was easy for him to enter the United States because he didn’t need a visa. 

Wishing everybody Happy Holidays and Happy New Year!

Atty. Michael Templo is an attorney admitted to practice law in New York State and Federal Courts and is a partner at Templo & Templo with offices in New York, USA and Makati City, Philippines.  Atty. Templo specializes in US Immigration matters.  The discussion above is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional.  For your comments and questions, Atty. Templo can be reached at mdt@templolaw.com or log on to www.templolaw.com