P3 Visa for Artists or Entertainers who are Part of a Culturally Unique Program

 

Introduction: P3 Visa for Artists or Entertainers who are Part of a Culturally Unique Program

p3 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 P3 category for artists and entertainers coming to the United States to be part of a culturally unique program.

P3 Visa Statute

The P3 category is authorized by section 101(a)(15)(P)(iii) of the Immigration and Nationality Act (INA). The statute authorizes the for P3 status a person who:

  • 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 to perform, teach, or coach as such an artist or entertainer or with such a group under a commercial or noncommercial program that is culturally unique.

Furthermore, any person seeking P status is required to have a residence abroad which he or she has no intention of abandoning.1

“Culturally Unique Program”

A person seeking P3 status must be seeking entry to participate in a “culturally unique program.” As we will review in the next section of the article, many of the documentary requirements for a P3 petition point toward meeting the culturally unique program requirement.

Firstly, there is no requirement that the culturally unique program must be sponsored by an educational, cultural, or government agency. A culturally unique program may be commercial or non-commercial (see PDF).2

Regulations in 8 C.F.R. 214.2(p)(3) define “culturally unique” as: “a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.”

The Administrative Appeals Office (AAO) issued an important precedent decision regarding the definition of “culturally unique” in Matter of Skirball Cultural Center (PDF version).3 The AAO held that an art form need not be “traditional” in order to meet the “culturally unique” standard. Therefore, fusion art forms or other non-traditional art forms may qualify as culturally unique if the petitioner can otherwise meet the evidentiary requirements set forth in the regulations.

Petitioning for P3 Status: Eligibility Requirements and Petition Process

The P3 petition, just like other P visa petitions, is filed on the Form I-129, Petition for a Nonimmigrant Worker. The P visa category does not allow for self-petitioning. The Form I-129 for a P3 beneficiary must be filed by a U.S. employer, U.S. sponsoring organization, U.S. agent, or a foreign employer through a U.S. agent. The petition for a P3 artist or entertainer must be filed within 1 year of the commencement of his or her intended employment. If the petition is for a P3 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

The majority of the evidentiary requirements specific to P3 status are found in 8 C.F.R. 214.2(p)(6).

The culturally unique program for a P3 artist or entertainer must be to further the understanding of his or her art form.7

The following are the evidentiary requirements that must accompany a Form I-129 for a P3 artist or entertainer found in 8 C.F.R. 214.2(p)(6)(ii):

  • A. Affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the alien's or the group's skills in performing, presenting, coaching, or teaching the unique or traditional art form and giving the credentials of the expert, including the basis of his or her knowledge of the alien's or group's skill, or
  • B. Documentation that the performance of the alien or group is culturally unique, as evidenced by reviews in newspapers, journals, or other published materials; and
  • C. Evidence that all of the performances or presentations will be culturally unique events.

These evidentiary requirements are designed to establish both that the P3 artists and entertainers possess a high level of skill in the culturally unique art form, and that the art form itself is culturally unique.

The petitioner must obtain a consultation from an appropriate labor organization (the labor organization may issue a letter of no objection in lieu of a formal consultation). A favorable consultation should evaluate the cultural uniqueness of the alien's skills and state that the event or activity is appropriate for P3 classification.8 If no appropriate labor organization exists, the United States Citizenship and Immigration Services (USCIS) will render a decision based upon the evidence in the petition.9

The petitioner has the right to appeal the denial of a P3 petition.10

P3 Essential Support Personnel

An alien seeking to accompany a principal P3 alien to provide essential support is classifiable as a P3 essential support alien. The petition Form I-129 for a P3 essential support alien is filed separately from the principal P3 Form I-129. A P3 essential support alien must be entering to provide services that cannot be readily performed by a U.S. worker.11 Regulations found in 8 C.F.R. 214.2(p)(6)(iii) require that the following evidence is submitted with a Form I-129 for a P3 essential support alien:

  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 a summary of the terms of the oral agreement between the alien(s) and the employer.

The evidentiary requirements make it incumbent on the petitioner to show that the P3 essential support alien has special expertise and experience that is essential to the culturally unique performances that the P3 artists or entertainers will perform in.

Dual Intent Permitted

An approved labor certification application or filed immigrant visa preference petition cannot by itself necessitate the denial of a Form I-129 for a P3 artist or entertainer. However, this does not apply to P3 essential support personnel.12

P4 Dependents

The spouse and unmarried child(ren) of a principal P1 beneficiary may obtain a P4 visa. A P4 beneficiary is ineligible for employment without obtaining employment authorization.13

Approval of a P3 Petition and Extensions of Stay

In the case of a P3 group, the petitioner may substitute beneficiaries prior to all of the members obtaining P3 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 P3 visa at a Port-of-Entry. P3 essential support personnel may not be substituted in this way.14

A P3 artist or entertainer may be admitted for the time necessary to complete his or her itinerary of culturally unique events, but not for an initial period in excess of one year.15 If an extension of stay is needed to complete the culturally unique event(s), the petitioner may file a Form I-129 on behalf of the P3 artists or entertainers in order to request an extension of stay. An extension may be granted for a period not in excess of 1-year.16 The same initial period of admission and extension rules apply to P3 essential support personnel, although extension petitions must be filed separately. There is no right to appeal the denial of a petition for extension of stay.17

If there is a change of employer or other change in employment that would affect the eligibility of the P3 visa holders, it is incumbent on the petitioner to file an amended Form I-129 to the Director who approved the petition to seek approval.18

Conclusion: P3 Visa for Artists or Entertainers who are Part of a Culturally Unique Program

The P3 visa is allows artists or entertainers to come to the United States in order to participate in a culturally unique program. Those considering the P3 visa should consult with an experienced immigration attorney for an assessment of whether they can meet the evidentiary requirements and whether the P3 visa is the most appropriate immigration path to conduct performances for a short period in the United States.

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  1. INA § 101(a)(15)(P)
  2. 59 FR 41818, 41825 (Aug. 15, 1994)
  3. Matter of Skirball Cultural Center, 25 I&N Dec 799 (AAO 2012) [holding that in South American klezmer music, which combined Argentine and Eastern European Jewish traditions, qualified as “culturally unique” given the evidence in the petition]
  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(p)(6)(B)
  8. 8 C.F.R. § 214.2(p)(7)(v)
  9. 8 C.F.R. § 214.2(p)(7)(i)(F)
  10. 8 C.F.R. § 214.2(p)(9); [for an example, see footnote 3]
  11. 8 C.F.R. § 214.2(p)(3)
  12. 8 C.F.R. § 214.2(p)(15)
  13. 8 C.F.R. § 214.2(p)(i)(iii)(D)
  14. 8 C.F.R. §§ 214.2(p)(2)(iv)(H)
  15. 8 C.F.R. § 214.2(p)(8)(iii)(C)
  16. 8 C.F.R. § 214.2(p)(14)(ii)(B)
  17. 8 C.F.R. § 214.2(p)(9)
  18. 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.