AAO Finds Artistic Expression Does Not Need to be Traditional to be "Culturally Unique"

The Administrative Appeals Office (AAO) recently addressed the term “culturally unique” and its significance in the adjudication of petitions for performing artists and entertainers (P-3 Non-Immigrant Visa). The Immigration & Nationality Act (INA) allows for an alien artist or entertainer, who performs individually or as part of a group, to receive a non-immigrant visa if he or she seeks to enter the United States temporarily to perform, teach, or coach a program that is culturally unique. INA §101(a)(15)(P)(iii)(I)-(II). The Federal Regulations 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.” 8 C.F.R.§214.2(p)(3).

In the Matter of Skirball Cultural Center, the AAO found that “the fact that the regulatory definition allows its application to an unspecified 'group of persons' makes allowances for beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries.” Matter of Skirball Cultural Center, 25 I&N Dec. 799, 805 (AAO 2012). The AAO specifically found that “the idea of 'culture' is not static and must allow for adaptation or transformation over time and across geographic boundaries.” Id. The style of artistic expression must still be identifiable to a specific group of people. Id. The determination of whether an artistic expression is “culturally unique” must be made on a case-by-case basis applying the Bureau of U.S. Citizenship & Immigration Services' expertise and discretion. Id.

The AAO's interpretation of “culturally unique” is favorable to petitioners and beneficiaries as it defines the term broadly to allow for many types of artists to qualify for the visa. The AAO reversed the determination of the Bureau of U.S. Citizenship & Immigration Services (USCIS) finding the beneficiaries' Jewish klezmer music, which had been distinctively blended with traditional Argentine musical styles was “culturally unique”. The AAO focused on an expert opinion that found “that klezmer music, while often associated with ethnically Jewish people, is an artistic form that has migrated and is continually mixed with and influenced by other cultures.” Id. at 805. The AAO specifically held that “[t]he regulations do not require that an art form be 'traditional' in order to qualify as culturally unique.” Id. at 806. As such, a hybrid artistic expression can be deemed “culturally unique”. It is important to make sure that a petitioner and beneficiary submit sufficient evidence to show the artistic expression is “culturally unique”.