P2 Visa for Artists or Entertainers in a Reciprocal Exchange Program

 

Introduction: P2 Visa for Artists or Entertainers Coming as Part of a Reciprocal Exchange Program

P2 VisaThe P visa category is a nonimmigrant work visa category for: internationally recognized athletes (P1A); members of an internationally recognized entertainment group (P1B); individual performers or performers as part of a group entering to perform under a reciprocal exchange program (P2); or an artist or entertainer coming to be part of a culturally unique program (P3). The spouse and children of principal P visa holders are eligible for P4 visas. In this article, we will discuss the rules and regulations surrounding the P2 category for artists or entertainers, either individually or as part of a group, entering under a reciprocal exchange program.

P2 Visa Statute

The statutory provision authorizing the P2 visa category is found in section 101(a)(15)(P)(ii) of the Immigration and Nationality Act. It states that a person seeking to enter as a P2:

  • I. performs as an artist or entertainer, individually or as part of a group, or is an integral part of the performance of such a group, and
  • II. seeks to enter the United States temporarily and solely for the purpose of performing as such an artist or entertainer or with such a group under a reciprocal exchange program which is between an organization or organizations in the United States and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers.

Furthermore, an applicant for P2 status must have a foreign residence which he or she has no intention of abandoning.1

P2 Reciprocal Exchange Agreements

At the present, there are four qualifying reciprocal exchange agreements that qualify as exchange programs for purpose of P2 status. These agreements are between:

  • The American Federation of Musicians (U.S.) and the American Federation of Musicians (Canada);
  • The Actor's Equity Association (U.S.) and the Canadian Actor's Equity Association;
  • The Actor's Equity Association (U.S.) and the British Actor's Equity Association; and
  • The International Council of Air Shows and the Canadian Air Show Association.

If a reciprocal exchange agreement is submitted other than those four, adjudicators must review the agreement in order to determine whether the agreement meets the regulatory requirements for purpose of P2 status. See this link for the relevant Memorandum.2

Petitioning for P2 Status: Eligibility Requirements and Petition Process

The bulk of eligibility requirements for P2 status are found in 8 C.F.R. 214.2(p)(5).

Aliens seeking P2 status must do so as part of a reciprocal exchange program. The exchange of artists or entertainers must be similar in terms of the caliber of artists and entertainers and the terms of conditions and employment. This does not preclude an individual artist or entertainer from being part of a reciprocal exchange agreement.3

The P2 petition is filed on the Form I-129, Petition for a Nonimmigrant Worker. The P visa category does not allow for self-petitioning. The petition must be filed within 1 year of the intended employment and must be filed by a U.S. employer, sponsor, agent, or foreign employer through a U.S. agent. If the P2 petition is for a group, multiple beneficiaries may be included on a single Form I-129.4

A sponsoring organization may act as petitioner if it is an established U.S. organization that will not directly employ the P1A beneficiary, but will assume responsibility for the petition.5

When the petitioner is a U.S. agent, he or she must be in business as an agent, submit a compete itinerary of services and engagements for the P beneficiary, submit the contracts between the employer(s) and P beneficiary, and explain the terms and conditions of the P beneficiary's employment.6

Regulations in 8 C.F.R. 214.2(p)(5)(ii) list the basic evidentiary requirements for a P2 petition:

  • A. A copy of the formal reciprocal exchange agreement between the U.S. organization or organizations which sponsor the aliens and an organization or organizations in a foreign country which will receive the U.S. artist or entertainers;
  • B. A statement from the sponsoring organization describing the reciprocal exchange of U.S. artists or entertainers as it relates to the specific petition for which P-2 classification is being sought;
  • C. Evidence that an appropriate labor organization in the United States was involved in negotiating, or has concurred with, the reciprocal exchange of U.S. and foreign artists or entertainers; and
  • D. Evidence that the aliens for whom P-2 classification is being sought and the U.S. artists or entertainers subject to the reciprocal exchange agreement are artists or entertainers with comparable skills, and that the terms and conditions of employment are similar.

Subsections A and B require the submission of the reciprocal exchange agreement so that it can be determined if the agreement qualifies for P2 purposes. The consultation with an appropriate labor organization in subsection C is always required for a principal P2 petition. The consultation must support that the reciprocal exchange agreement meets the regulatory requirements for P2 status.7 The evidentiary requirement in subsection D requires that the petitioner show that the P visa applicants are of comparable ability and coming for similar employment to the U.S. artists or entertainers who are traveling abroad as part of the reciprocal exchange agreement.

The petitioner has the right to appeal the denial of a P2 petition.8

Essential Support Personnel

Essential support aliens are also eligible for P2 status in order to support a P2 artist or entertainer or P2 group. The form I-129 petition for a P2 essential support alien must be filed separately from the Form I-129 for the P2 artist(s) and entertainer(s). A P2 essential support alien must be coming to perform services that could not readily be performed by a U.S. worker. The United Citizenship and Immigration Services (USCIS) website suggests that the following persons may qualify as P2 essential support personnel:

  • Stagehands;
  • Trainers;
  • Persons with critical knowledge of the specific services to be performed.9

The Form I-129 for a P2 essential support alien must be supported by the following pieces of evidence:

  1. A consultation from a labor organization with expertise in the area of the alien's skill;
  2. A statement describing the alien(s) prior essentiality, critical skills, and experience with the principal alien(s); and
  3. A copy of the written contract or summary of the terms of the oral agreement between the alien's and the employer.10

Dual Intent Permitted

The approval of a permanent labor certification application or filing of an immigrant visa preference petition does not necessitate the denial of a P petition. However, a petition for an essential support alien may be denied for this reason. 11

P4 Dependents

The spouse and unmarried minor children of a P2 artists, entertainers and essential support personnel are eligible for derivative P4 visas. P4 status may is valid for the same duration as the principal P2 status. A P4 beneficiary is ineligible for employment without obtaining employment authorization.12

Approval of a P2 Petition and Extensions of Stay

In the case of a P2 group, the petitioner may substitute beneficiaries prior to all of the members obtaining P2 visas at a U.S. Consulate. The petitioner must submit a letter the consulate or point of entry post requesting the substitution along with approval. The substituted beneficiary must then apply for a P2 visa at a Port-of-Entry. Essential support personnel may not be substituted in this way.13

A P2 artists and entertainers may be admitted for the time required to complete the event(s) status was approved for, but not in excess of 1 year.14 The petitioner may file a Form I-129 to file for an extension of stay for the P2 artists and entertainers, and extensions may be granted increments of up to 1 year.15 The same rules apply for P2 essential support personnel, although any extension requests will be adjudicated on their own merits.

There is no right to appeal the denial of a petition for extension of stay.16

If there is a change of employer or other change in employment that would affect the eligibility of the P2 artists or entertainers, it is incumbent on the petitioner to file an amended Form I-129 to the Director who approved the petition to seek approval.17

Conclusion: P2 Visa for Artists or Entertainers Coming as Part of a Reciprocal Exchange Program

The P2 visa category is a limited-use employment visa for persons seeking to enter the United States as part of a reciprocal exchange program. Persons considering using the P2 reciprocal exchange program should consult with an experienced immigration attorney, especially if the reciprocal exchange program is not one of the four listed in AFM 33.6(d).

______________________

  1. INA § 101(a)(15)(P)
  2. Memo, Neufeld, Acting Assoc. Dir., Domestic Ops., USCIS H1 70/6.2.19, AFM Update AD10-28 (March 11, 2010); AFM 33.6(d)
  3. 8 C.F.R. § 214.2(p)(5)(i)(B)
  4. 8 C.F.R. § 214.2(p)(2)
  5. 8 C.F.R. §§ 214.2(p)(2)(i) and (3)
  6. 8 C.F.R. 214.2(p)(2)(E)(1)-(3); Memo, Neufeld, Acting Accoc. Dir. Domestic Operations, HQ 70/6.2.18, HQ 70/6.2.19 (Nov. 20, 2009)
  7. 8 C.F.R. § 214.2(7)(iv)
  8. 8 C.F.R. § 214.2(p)(9)
  9. “P-2 Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program,” USCIS, (July 7, 2015)
  10. 8 C.F.R. §§ 214.2(p)(5)(iii)(B)(1)-(3)
  11. 8 C.F.R. § 214.2(p)(15)
  12. 8 C.F.R. § 214.2(p)(i)(iii)(D)
  13. 8 C.F.R. §§ 214.2(p)(2)(iv)(H)
  14. 8 C.F.R. § 214.2(p)(8)(iii)(C)
  15. 8 C.F.R. § 214.2(p)(14)(ii)(B)
  16. 8 C.F.R. § 214.2(p)(9)
  17. 8 C.F.R. § 214.2(p)(10)(i)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 991-96, Print. Treatises & Primers.

“P-2 Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program,” USCIS, (July 7, 2015) available at http://www.uscis.gov/working-united-states/temporary-workers/p-2-performer-or-group-performing-under-reciprocal-exchange-program/p-2-individual-performer-or-part-group-entering-perform-under-reciprocal-exchange-program (PDF Version)