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USCIS Clarifies Meaning of “Culturally Unique” for Performing Artist Visas

Herzel_Street_Klezmers_P1080777_05212012.JPGAn Argentinean musical group may visit the United States as “culturally unique” artists after the Administrative Appeals Office (AAO), part of U.S. Citizenship and Immigration Services (USCIS), reversed the initial denial of their petition for a P-3 nonimmigrant visa. The P-3 visa allows performers to travel to the U.S. temporarily, provided that they can demonstrate that their work is “culturally unique.” The immigration statute does not offer a clear definition of “culturally unique,” so the AAO reviewed the decision to deny the petition filed for the Argentinean group and offered some guidance in a binding precedent decision. The decision could have a dramatic impact on New York City, being a hub for international arts and entertainment.

The P-3 visa is a nonimmigrant visa, meaning that it can only be issued to someone who intends to depart the United States after a set period of time. An employer or sponsor must petition for a performer or group of performers. This is different from an employment-based visa petition, which intends for an individual to come to the U.S. permanently. A petition for a P-3 visa must present evidence of the performer’s cultural uniqueness. This may include letters or affidavits from experts, or written reviews or articles demonstrating how the performer’s work represents the performer’s culture or ethnic heritage.

The case in question involved a petition by the Skirball Cultural Center in Los Angeles on behalf of Orquesta Kef an Argentinean musical group. The Center described the group’s style of music as a fusion of klezmer, a genre originating in Eastern European Jewish communities, and Latin and South American musical styles like tango and traditional folk music. USCIS denied the petition on November 10, 2009, finding that the Center did not meet its burden of proof as to cultural uniqueness. It sent the matter to the AAO for review.

The AAO is an office within USCIS charged with reviewing appeals of decisions on immigration petitions and applications made by USCIS officials. It relies on case law from the immigration courts and the Board of Immigration Appeals to maintain compliance with the current state of immigration law. It may submit decisions for publication that it wishes to have binding precedent effect, which it what it did with this case.

In a decision dated May 10, 2012, the AAO reversed the denial of the Center’s petition, holding that it met its burden of proving that the performers’ style of artistic expression is culturally unique. The Center had submitted letters from a music professor and two directors of performing arts organizations describing the unique aspects of the musical group’s style. The AAO held that a performer’s style does not have to follow a particular musical tradition strictly to qualify as culturally unique. A fusion of different styles, including a performer’s own background and traditions, may count as culturally unique. Decisions must ultimately vary case by case, but the AAO established that the standards applied by USCIS in this instance, looking at the group’s influences more than their own musical identity, were too narrow.

The New York immigration lawyers at Samuel C. Berger, P.C. help immigrants seeking visas to come to, or remain in, the United States. To schedule a consultation with one of our skilled attorneys today, contact us online or at (212) 380-8117.

Web Resources:

Matter of Skirball Cultural Center (PDF), USCIS Administrative Appeals Office Interim Decision #3752, via EOIR

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Photo credit: ‘Herzel Street Klezmers P1080777’ by Deror Avi (Own work) [GFDL or CC-BY-SA-3.0-2.5-2.0-1.0], via Wikimedia Commons.