Q1 Cultural Exchange Visitors

 

Introduction: Q Visa International Cultural Exchange Visitors Program

Q1 Exchange VisitorThe Q1 visa is a temporary nonimmigrant work visa for international cultural exchange visitors. In addition to being an employment-oriented program, Q1 nonimmigrants must communicate about their cultural attributes as part of the qualifying exchange program. Q1 status may be granted for up to 15 months in the aggregate. Unlike most nonimmigrant work visa categories, the spouse or child(ren) of a Q1 nonimmigrant are not entitled to derivative nonimmigrant status. In this article we will examine the requirements for Q1 status, the rules for being on Q1 status, and options for the spouse or minor child(ren) of a Q1 nonimmigrant to gain nonimmigrant status in the United States.

Q Visa Statute

The statute regarding Q1 visas is found in section 101(a)(15)(Q) of the Immigration and Nationality Act (INA).

Under the statute, the Q1 visa category is for an alien who is coming to the United States temporarily (for a period not exceeding 15 months) as a participant in an international cultural exchange program approved as such by the Secretary of Homeland Security. The program must provide practical training, employment, and “the sharing of the history, culture, and tradition of the country of the alien's nationality.” The statute requires that the Q1 nonimmigrant “be employed under the same wages and working conditions as domestic workers.” Similar to most nonimmigrant categories, a Q1 nonimmigrant is required to have a residence in a foreign country which he or she has no intention of abandoning. This means that an applicant for a Q1 visa must demonstrate that he or she has nonimmigrant intent.

Q Visa Regulations

The regulations regarding Q visas are found in 8 C.F.R. 214.2(q). These regulations constitute the rules regarding the Q1 visa program based on the statute found in section 101(a)(15)(Q) of the INA.

Dual Purpose of Form I-129 in Q1 Petitions

When filing the Form I-129, Petition for a Nonimmigrant Worker, the employer must demonstrate both that it maintains an international cultural exchange program that qualifies for Q1 purposes, and that the petition beneficiary is eligible for Q1 status. Under 8 C.F.R. 214.2(q)(3)(i), the United States Citizenship and Immigration Services (USCIS) will only consider the beneficiary's eligibility for Q1 status if the international cultural exchange program is approved.

Requirements for Q1 Exchange Program Approval

8 C.F.R. 214.2(q)(3)(iii) sets forth the requirements for demonstrating that an exchange program qualifies as an “international cultural exchange program” for Q1 employment purposes. As we will see, the program must be accessible to the public, have a cultural component, and have a work component. The program must meet each of these three requirements in order to qualify as an international cultural exchange program. We will discuss the rules for each requirement in the following passages.

Firstly, 8 C.F.R. 214.2(q)(3)(iii)(A) requires that the program take place in a:

  • School;
  • Museum; or
  • Business or other establishment where the American public, or a segment of the public sharing a common cultural interest, is exposed to aspects of a foreign culture as part of a structured program.

This requirement means that the program must be accessible to the public. Accordingly, if the activities take place in a setting to which the American public or a segment thereof sharing a common cultural interest does not have access, the program will not qualify for Q1 purposes.

Secondly, 8 C.F.R. 214.2(q)(3)(iii)(B) requires that the program have a “cultural component.” This cultural component must be an “essential part” of the Q1 exchange visitor's employment or training. Furthermore, the cultural component must be designed to explain the attitude, customs, history, heritage, philosophy, or traditions of the Q1 exchange visitor's country of nationality. The regulation explains that the cultural component may include structured activities such as:

  • Seminars;
  • Courses;
  • Lecture series; or
  • Language camps.

Thirdly, 8 C.F.R. 214.2(q)(3)(iii)(C) requires that the program have a “work component.” The work component, which may consist of employment or training, may not be independent of the cultural component of the program. This means that the Q1 nonimmigrant may not meet the cultural component while doing work that is separate from the cultural component. The regulation explains that the sharing of the culture of the Q1 exchange visitor's country of nationality must result from his or her employment or training on Q1 status.

The approval of the program is distinct from the approval of each individual participant. As we will see, this is pertinent with regard to filing petitions for multiple beneficiaries, filing petitions to bring exchange visitors after the start of the program, and replacing beneficiaries.

Requirements for Approval as a Q1 Exchange Visitor

In order to qualify for Q1 status, 8 C.F.R. 214.2(q)(iii)(C)(iv) requires that the alien be a bona fide nonimmigrant (having nonimmigrant intent) who:

  • A. Is at least 18 years of age when the petition is filed;
  • B. Is qualified to provide the service or labor or receive the training stated in the petition;
  • C. Has the ability to communicate effectively about the culture of his or her country of nationality to the American public; and
  • D. If previously admitted as a Q1 exchange visitor, has been physically present outside of the United States for the immediate prior year.

Required Supporting Documentation

A Form I-129 for a Q1 visa beneficiary must include supporting documentation establishing that both the petitioner and beneficiary meet the requirements for Q1 status. As we will discuss in this and the following section, a petition may include multiple beneficiaries.

Petitioner Documentation

Under 8 C.F.R. 214.2(q)(4)(i), the petitioner must submit documentation with the Form I-129 to establish that it is a qualified employer running an international cultural exchange program. The documentation and other evidence must establish that the petitioner:

  • A. Maintains an established cultural exchange program for Q1 purposes;
  • B. Has a designated qualified employee as a representative who will be (1) responsible for administering the international cultural exchange program and (2) who will serve as a liaison with the USCIS;1
  • C. Is actively “doing business” in the United States;
  • D. Will offer the beneficiaries wages and working conditions comparable to those accorded to local domestic workers who are similarly employed; and
  • E. Has the financial ability to remunerate the exchange visitors.

The USCIS website [link] provides a non-exhaustive list of examples of evidence that an employer may submit to satisfy the requirement found in Part A, including:

  • Copies of catalogues, brochures, or other types of material which demonstrate that the cultural component of the program is designed to teach/inform the public about the culture of the exchange visitor's home country; and
  • Evidence which illustrates that the program activities take place in a public setting where the exchange visitors will be able to share culture through direct interaction with the American public or a segment thereof.

Part B requires that the petitioner have a “qualified employee” who is responsible for administering the international cultural exchange program. Furthermore, the employee's responsibilities will include serving as a liaison to USCIS for the duration of the exchange program. This means that the petitioner cannot just pick an employee to administer the program; it must also establish that the employee is qualified to do so.

Part C requires that the petitioner be “doing business” in the United States. This term is defined in 8 C.F.R. 214.2(q)(1)(iii) as meaning “the regular, systematic, and continuous provision of goods and/or services … by a qualified employer which has employees, and does not include the mere presence of an agent or office of the qualifying employer. The definition states that “goods and/or services” include “lectures, seminars, and other types of cultural programs.”

Part D requires that the petitioner must offer the Q1 exchange visitor wages and working conditions comparable to those accorded to local domestic workers who are similarly employed. 8 C.F.R. 214.2(q)(11)(ii) explains that “local domestic workers” refers to “domestic workers similarly employed in the geographical area of the alien's employment.”

Under 8 C.F.R. 214.2(q)(4)(iii), there is an exception to the documentary requirements found in part (i). This documentation is required “in all cases except where the employer files multiple petitions in the same calendar year.” If the petition is for aliens who are to be employed in a previously approved cultural exchange program, the petitioner may submit a copy of the initial program approval notice in lieu of the above documentation required by 8 C.F.R. 214.2(q)(4)(i). The USCIS may request additional documentation if it deems such documentation necessary.

Under 8 C.F.R. 214.2(q)(4)(ii), the petitioner must provide the following information about the petition beneficiary/beneficiaries:

  • Date of birth;
  • Country of nationality;
  • Level of education;
  • Position title; and
  • A brief job description for each international cultural exchange visitor included in the petition.

Additionally, the petitioner must verify and certify that each beneficiary of the petition is qualified to perform the service or labor, or receive the type of training, that is described in the petition.

The petitioner is also required to report the wages of the international cultural exchange visitors and verify that they were offered wages and working conditions comparable to those accorded to local domestic workers who are similarly employed.

Issues Related to the Filing of a Form I-129

In order to bring over an exchange worker to work in an approved international cultural exchange program, the petitioner must file a Form I-129 with fee along with the requisite documentation. Under 8 C.F.R. 214.2(q)(5)(i), a new Form I-129 must be filed each time a qualified Q1 employer seeks to bring additional Q1 international cultural exchange visitors. Each person named on a Q1 petition may only be admitted for the duration of the approve program (and not in excess of 15 months).

Under 8 C.F.R. 214.2(q)(5)(ii), a petitioner may include more than one name on a Form I-129 petition. The petition must include the required information for each petition beneficiary for. Additionally, the petitioner is required to indicate at which U.S. consulate each exchange visitor will apply for a Q1 visa or, for any participants who are visa-exempt under 8 C.F.R. 212.1(a), the port of entry at which each participant will apply for admission. 8 C.F.R. 212.1(a) allows certain citizens of Canada, the British Overseas Territory of Bermuda, Bahamian nationals, and certain British subjects resident in the Bahamas, Cayman Islands, or in the Turks and Caicos Islands to gain admission in certain nonimmigrant statuses without a visa. The list of statuses includes Q1 status.

Under 8 C.F.R. 214.2(q)(5)(iii), if the petition will require the Q1 exchange visitor to engage in employment or training with the same employer in more than one location, the petition must include an itinerary with the dates and locations of the services, labor, or training. Under paragraph (q)(5)(iv), If the Q1 exchange visitor will perform services or labor for, or receive training from, multiple employers, each employer must file a separate petition. In this situation, the Q1 exchange visitor may work part time for several employers provided that the Form I-129 filed by each employer was approved.

8 C.F.R. 214.2(q)(5)(v) allows for an exchange visitor lawfully maintaining Q1 status to change employers. In order to change employers, the new employer must have filed a Form I-129 and the petition must have been approved. However, a change of employer does not allow a Q1 exchange visitor to remain in the United States for more than 15 months on Q1 status.

8 C.F.R. 214.2(q)(10) allows for a Q1 exchange visitor to receive an extension of stay in Q1 status provided that the total time spent in Q1 status does not exceed 15 months. In order to apply for an extension of stay, the petitioner must file a new Form I-129. If the petition for an extension is filed by the same employer, it should include a copy of the previous Form I-129 approval notice along with a letter from the petitioner indicating that the terms and conditions of the petition remain unchanged.

Substituting or Replacing Participants in an International Cultural Exchange Program

A petitioner running an approved international cultural exchange program may substitute or replace a person on a previously approved Form I-129 for the remainder of the international cultural exchange program without filing a Form I-129. However, the replacement or substitute exchange visitor must meet all of the regulatory requirements for Q1 status. In order to request a substitution or replacement, the petitioner must send a letter both to the consular office at which the substitute or replacement exchange visitor will apply for a visa, or to the USCIS Service Office at the port of entry where the substitute or replacement exchange visitor will apply for admission. In the latter case, the letter does not also need to go to a consular office if the alien is visa-exempt. The letter must include a copy of the Form I-129 approval notice and the following information about the alien:

  • Date of birth;
  • Country of nationality;
  • Level of education;
  • Position and title of each prospective exchange visitor; and
  • Certification that each replacement or substitute prospective exchange visitor is qualified to perform the service or labor or receive the type of training in the approved petition.

Additionally, the petitioner must certify that the prospective replacement or substitute exchange visitor was offered wages and working conditions comparable to those accorded to local domestic workers.

It is important to reiterate that a replacement or substitute exchange visitor may only be approved for Q1 status for the remainder of the cultural exchange program.

Approval, Denial, or Revocation of Petition

8 C.F.R. 214.2(q)(7) explains that if the petition is approved, the USCIS will notify the petitioner and the appropriate U.S. consulates of the decision (or ports of entry for visa-exempt beneficiaries). A petition will be valid for up to 15 months, or for a shorter period of time if the program is less than 15 months in duration. If the alien was previously accorded Q1 status, the petition will not be approved unless the alien has been physically present outside the United States for the immediate prior year.

Under 8 C.F.R. 214.2(q)(8), if the petition is denied, the petitioner will be notified of the denial and its right to appeal. If the petition listed multiple beneficiaries, it is possible that it may denied in part with respect to certain beneficiaries but not others.

8 C.F.R. 214.2(q)(9) sets forth the rules for the revocation of an approved petition. First, it is important to note that a petitioner is required to notify the appropriate USCIS service center of any changes to the employment of a Q1 exchange visitor that would have an effect on his or her eligibility for Q1 status.

A petition shall be automatically revoked under the following circumstances:

  • If the employer goes out of business;
  • If the employer files a written withdrawal of the petition; or
  • If the employer terminates the approved international cultural exchange program prior to its termination date.

Under the following circumstances listed in 8 C.F.R. 214.2(q)(9)(iii), the USCIS shall send the petitioner a notice of intent to revoke the petition in whole or in part if it finds that:

  • The Q1 exchange visitor is no longer employed by the petitioner in the capacity listed in the petition or is not receiving training as specified in the petition;
  • The statement of facts contained in the petition was not true and correct;
  • The petitioner otherwise violated the terms of the approved petition; or
  • The USCIS approved the petition in error.

If the petitioner receives a notice of intent to revoke, it will have 30 days to submit evidence in rebuttal. If the petition is ultimately revoked in part, the USCIS will send the petitioner a revised approval notice along with the revocation notice. Revocation under 8 C.F.R. 214.2(q)(9)(iii) may be appealed. However, an automatic revocation may not be repealed.

Employment on Q1 Status and Rules for Departure

Under 8 C.F.R. 214.2(q)(11), a Q1 exchange visitor is only permitted to engage in employment for the qualifying employer(s) for Q1 status. A Q1 exchange visitor may not be granted an employment authorization document. Engaging in unauthorized employment would constitute a violation of Q1 status.

Under 8 C.F.R. 214.2(q)(3)(ii), a Q1 exchange visitor is permitted to remain for up to 30 days after the approved duration of his or her admission on Q1 status to arrange for travel arrangements to depart.

Review

Courts have found that the petition for a Q1 organization is reviewable. For example, in Beyond Management Inc. v. Holder, 778 F.Supp.2d 1375, 1378-80 (N.D. Ga. 2011) [PDF version], a federal district court held that it had the authority to review the denial of a Form I-129 for Q1 status because the applicable statute does not specify that review is at the discretion of the Department of Homeland Security (DHS). Another federal district court held similarly in National Collegiate Recreation Servs. v. Chertoff, 447 F.Supp.2d 527 (D.S.C. 2006) [PDF version].

Bringing Derivative Spouse or Child(ren) as a Q1 Exchange Visitor

Unlike many other nonimmigrant classifications, the Q1 category has no derivative classification. This means that the spouse or child of a Q1 exchange visitor cannot obtain immigration status by virtue of the spouse or parent's being granted Q1 status. In order to accompany a Q1 exchange visitor to the United States, the spouse or child must independently obtain nonimmigrant status. For a spouse or child who is not otherwise on nonimmigrant status in the United States, the most likely way to accompany a Q1 exchange visitor would be by applying for a B2 travel visa for purpose of accompanying the Q1 exchange visitor to the United States. To learn about B2 visas, please see our articles on the subject [see article; article].

What are Q2 and Q3 Visas?

One who reads the regulations will see that there are references to “Q2” and “Q3” visas. The Q2 visa program was a special program for certain nonimmigrants from Northern Ireland. The Q3 visa was a derivative visa for principal Q2 visa-holders. The Q2 visa program sunset in 2008, and it is no longer in effect. Because the Q1 visa is still listed as “Q1” in the regulations and many other agency documents, we use “Q1” in this article.

Conclusion

The Q1 visa program is a means for cultural exchange visitors to participate in specially designated international cultural exchange programs. Before making a Q1 visa application, the petitioning employer is well advised to consult with an experienced immigration attorney. An experienced immigration attorney will be able to assess the case and help the prospective petitioner determine whether the Q1 visa program is the appropriate means for meeting his or her objectives, or whether a different work visa or exchange visitor visa would be more appropriate. If it is determined that the Q1 visa is appropriate, an experienced immigration attorney will be able to help the petitioner properly complete the application and to advise on the rules regarding Q1 visas. A Q1 exchange visitor may also consult with an experienced immigration attorney for guidance on the maintenance of Q1 status and assistance in determining whether his or her spouse or child(ren) may be able to obtain a nonimmigrant visa for admission into the United States.

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  1. The regulations state “Immigration and Naturalization Service.” This has subsequently been supplanted by the USCIS.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1018-20, Print. Treatises & Primers.