Cite as 25 I&N Dec. 799 (AAO 2012) Interim Decision #3752
1 This decision was originally entered on December 19, 2009. The matter has been
reopened on U.S. Citizenship and Immigration Services’ own motion for the limited purpose
of making editorial revisions consistent with the designation of this decision as precedent.
799
Matter of SKIRBALL CULTURAL CENTER
Decided May 15, 20121
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office
(1) Congress did not define the term “culturally unique,” as used in section
101(a)(15)(P)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(P)(iii)
(2006), leaving reasonable construction of that term to the expertise of the agency
charged with adjudicating P-3 nonimmigrant visa petitions.
(2) The term “culturally unique,” as defined at 8 C.F.R. § 214.2(p)(3) (2012), is not
limited to traditional art forms, but may include artistic expression that is deemed
to be a hybrid or fusion of more than one culture or region.
(3) As the regulatory definition provides for the cultural expression of a particular “group
of persons,” the definition may apply to beneficiaries whose unique artistic expression
crosses regional, ethnic, or other boundaries.
(4) The regulatory definition of “culturally unique” calls for a case-by-case factual
determination.
(5) The petitioner bears the burden of establishing by a preponderance of the evidence
that the beneficiaries’ artistic expression, while drawing from diverse influences,
is unique to an identifiable group of persons with a distinct culture; it is the weight and
quality of evidence that establishes whether or not the artistic expression is “culturally
unique.”
FOR PETITIONER: Pro se
BEFORE: Perry Rhew, Chief, Administrative Appeals Office
The Director, California Service Center, recommended that the
nonimmigrant visa petition be denied and certified her decision to theCite as 25 I&N Dec. 799 (AAO 2012) Interim Decision #3752
800
Administrative Appeals Office (“AAO”) for review. The AAO will withdraw
the director’s decision and approve the petition.
The petitioner, a museum and cultural center, filed the nonimmigrant
petition seeking classification of the beneficiaries under section
101(a)(15)(P)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(15)(P)(iii) (2006), as entertainers in a culturally unique program.
The beneficiaries are musicians comprising the group known as Orquesta Kef.
The petitioner seeks classification of the beneficiaries as P-3 entertainers for
a period of approximately 6 weeks.
On November 10, 2009, the director recommended denial of the petition,
concluding that the petitioner failed to establish that the performance of the
beneficiaries is culturally unique. Specifically, the director found that the
petitioner failed to meet the evidentiary requirements set forth in the
regulations.
Because the petition involves an unusually complex or novel issue, the
director certified her decision to the AAO and advised the petitioner that it had
30 days in which to submit a brief or other written statement to the AAO. See
8 C.F.R. § 103.4(a) (2012). The petitioner did not submit a brief and the
record is considered complete.
I. THE LAW
Section 101(a)(15)(P)(iii) of the Act provides for classification of an alien
having a foreign residence that the alien has no intention of abandoning 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 . . . .
Congress did not define the term “culturally unique,” leaving construction
of that term to the expertise of the agency charged with adjudicating P-3
nonimmigrant visa petitions. By regulation, the Immigration and
Naturalization Service (now U.S. Citizenship and Immigration Services
(“USCIS”)), defined the term at 8 C.F.R. § 214.2(p)(3) (2012): “Culturally
unique means 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.”Cite as 25 I&N Dec. 799 (AAO 2012) Interim Decision #3752
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The regulation at 8 C.F.R. § 214.2(p)(6)(i) further provides:
(A) A P-3 classification may be accorded to artists or entertainers, individually
or as a group, coming to the United States for the purpose of developing, interpreting,
representing, coaching, or teaching a unique or traditional ethnic, folk, cultural,
musical, theatrical, or artistic performance or presentation.
(B) The artist or entertainer must be coming to the United States to participate
in a cultural event or events which will further the understanding or development
of his or her art form. The program may be of a commercial or noncommercial
nature.
Finally, the regulation at 8 C.F.R. § 214.2(p)(6)(ii) states that a petition for
P-3 classification shall be accompanied by:
(A) Affidavits, testimonials, or letters from recognized experts attesting to the
authenticity of the alien’s or 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.
The record of proceeding includes the Petition for a Nonimmigrant Worker
(Form I-129) and supporting documentation, a request for additional evidence
(“RFE”) dated October 19, 2009, the petitioner’s response to the RFE, and the
director’s certified decision dated November 10, 2009. The petitioner’s initial
evidence included a written consultation from a labor organization, a written
contract between the petitioner and beneficiary group, and an itinerary,
as required by 8 C.F.R. § 214.2(p)(2)(ii). The director did not request
additional evidence with respect to these evidentiary requirements.
II. CULTURALLY UNIQUE
The sole issue certified for review is whether the beneficiary group’s
performance is culturally unique. The director acknowledged that the
petitioner submitted evidence required by 8 C.F.R. § 214.2(p)(6)(ii) but found
the evidence unpersuasive in establishing that the beneficiarygroup’s “hybrid”
musical style can be considered culturally unique. Upon review, the petitioner
has submitted sufficient evidence to establish that the performance of Orquesta
Kef is culturally unique.
In a letter dated September 26, 2009, the petitioner described the
beneficiarygroup and its musical style as follows: “This ensemble is composedCite as 25 I&N Dec. 799 (AAO 2012) Interim Decision #3752
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of seven musicians from Argentina, who have been performing together
between 4 to 8 years and whose music blends klezmer (Jewish music
of Eastern Europe) with [L]atin and South American influences.”
The petitioner also included a short biographyof the group, which indicates
that the ensemble plays “traditional, classical and contemporary Jewish songs”
and “brings together the emotion, passion and spirit of Jewish music.” The
biography indicates that the band developed “its own and unique musical
style” that is “based on the millenary force of tradition and the powerful
emotion of the Jewish culture, mixed in with Latin American sounds.”
The regulation at 8 C.F.R. § 214.2(p)(6)(ii) requires that the petitioner
establish that the beneficiaries’ performance is culturally unique through
submission of affidavits, testimonials, or letters, or through published reviews
of the beneficiaries’ work. The petitioner has submitted both types of evidence
in support of the petition.
A. Affidavits, Testimonials, or Letters from Recognized Experts
The regulation at 8 C.F.R. § 214.2(p)(6)(ii)(A) requires the petitioner
to submit affidavits, testimonials, or letters from recognized experts attesting
to the authenticity of the alien’s or 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.
The petitioner provided a letter from Josh Kun, Associate Professor at the
University of Southern California’s Annenberg School for Communication,
who indicates that he is a scholar who teaches, researches, and publishes
on both Jewish music and the music of Latin America. Professor Kun
establishes that he is familiar with the beneficiary group’s body of work and
states:
This band’s uniqueness lies in their ability to fuse cultures, to use music to meld
diverse elements from their native Argentine culture with the multiple musical
traditions of Eastern Europe.
As South Americans born to immigrant Eastern European parents, they use their
music to explore their mixed identities and re-visit the musical traditions and
heritages of their parents[’] families. As Argentineans, they also draw on many
influences of the folkloric music of their own country which they then incorporate
into a variety of klezmer forms. . . .
Klezmer music is often seen as the music of a specific ethnic group of people.
Yet while it originates in Eastern Europe, it is a music [of] change and transformation
and has migrated to different parts of the world through the Jewish Diaspora.
By mixing with the cultures and influences of the hosting countries where it lands,
the music is continually re-imagined in new forms. The Argentine Jewish musicCite as 25 I&N Dec. 799 (AAO 2012) Interim Decision #3752
803
of [the beneficiaries] is a great example of these travels and combinations.
As leading exponents and innovators of South American klezmer, [the beneficiary
group] is has [sic] rightfully been acclaimed as one of the world’s most interesting
and important ensembles working within the new styles of klezmer music.
The petitioner also provided a letter from Leigh Ann Hahn, Director
of Programming and Associate Director of Grand Performances, in
Los Angeles, California, who writes:
I have seen [the beneficiary group] perform numerous times in Buenos Aires.
In addition to [the beneficiary group] being fine musicians, they embody the spirit
of Jewish Argentina. I have followed their career for at least five years, and am
continuously captivated by their unique sound and ability to seamlessly fuse cultural
influences. Based on my considerable experience, there are no other musical groups
in the world who blend klezmer with tango and Argentine folk styles, making them
a singular expression of Buenos Aires’ Jewish immigrant community.
Finally, the petitioner submitted a letter from Dr. F. John Herbert,
Executive Director of Legion Arts, who states that the beneficiary group
is “internationally recognized for blending klezmer and tango with Argentine
folk styles, creating a singular expression of Buenos Aires Jewish immigrant
identity.” He describes the group as “outstanding representatives of the
cultural traditions of Jewish Argentina, possessing a sound that’s absolutely
distinctive, accompanied by a recognized ability to fuse diverse social and
artistic influences.”
B. Documentation That the Performance Is Culturally Unique
The regulation at 8 C.F.R. § 214.2(p)(6)(ii)(B) requires the petitioner
to submit documentation that the performance of the alien or group
is culturally unique, as evidenced by reviews in newspapers, journals, or other
published materials.
The petitioner submitted an article by Gabriel Plaza, published in the
November 17, 2005, issue of La Nacion, which indicates that the beneficiary
group is becoming established as “the indispensable attraction in Jewish
community festivals,” and “has its own unique style with new arrangements,
based on the traditional Jewish repertoire,” but “influenced by other sounds.”
The article includes quotes from one of the beneficiaries, who states that the
band was formed “to revive the festive spirit within the Jewish community
in Argentina.” The author writes that the group “blends the vivacious
festiveness of Argentine Jewish music with other rhythms that come from
across Eastern Europe.” The article also discusses generally a “Balkan music
phenomenon” growing in Argentina from local roots.Cite as 25 I&N Dec. 799 (AAO 2012) Interim Decision #3752
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The petitioner also submitted an article by Nicolas Artusi for the largest
print and internet newspaper in Argentina, which features the beneficiary
group among three bands that create music in Argentine Hebrew and refers
to the group as the “Yiddish mom” of Argentine Jewish music. The article
also speaks of an “Urban Passover” occurring on the streets of Argentina
“where the religious celebration is brought to the city’s main square.”
Finally, the petitioner submitted a review of the beneficiaries’ 2004 album,
“Música Judía” by Ari Davidow, for a specialized website that follows
klezmer music. Mr. Davidow describes the group’s music as “modern
Yeshivish” with “the simplicity and excitement of rock and roll.”
He distinguishes the music from “American post-revival klezmer” and notes
that it includes older Israeli dance songs and music from modern Orthodox
artists.
In her decision, the director acknowledged and included quotations from
all of the submitted expert opinion letters and published materials, and reached
the following conclusion:
The evidence repeatedly suggests that the group performs a hybrid or fusion style
of music, incorporating musical styles from other cultures and regions. A hybrid
or fusion style of music cannot be considered culturally unique to one particular
country, nation, society, class, ethnicity, religion, tribe, or other group of persons.
The beneficiaries’ performance does not evince a style of artistic expression,
methodology, or medium which is considered unique to a particular country, nation,
society, class, ethnicity, tribe or other group of persons. The performances must
be demonstrated to be socially or regionally different or distinct and the evidence
of record does not support that.
Although the director selected quotations from all of the above-referenced
evidence, she declined to comment specifically on any one piece of evidence,
other than noting that Mr. Davidow’s review of the beneficiary group’s album
“fails to even mention that the group’s music is considered culturally unique
to the Jewish Argentine community.”
For these reasons, the director recommended denial of the petition.
III. ANALYSIS
Upon review, the director’s reasoning is not supported by the record. The
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). The AAO can find no justification for the director’sCite as 25 I&N Dec. 799 (AAO 2012) Interim Decision #3752
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exclusion from this definition of a distinct artistic expression that is derived
from a hybrid or fusion of artistic styles or traditions from more than one
culture or region.
Rather, 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.
While a style of artistic expression must be exclusive to an identifiable people
or territory to qualify under the regulations, the idea of “culture” is not static
and must allow for adaptation or transformation over time and across
geographic boundaries. The term “group of persons” gives the regulatory
definition a great deal of flexibility and allows for the emergence of distinct
subcultures. Furthermore, the nature of the regulatory definition of “culturally
unique” requires USCIS to make a case-by-case factual determination based
on the agency’s expertise and discretion. Of course, the petitioner bears the
burden of establishing by a preponderance of the evidence that the
beneficiaries’ artistic expression, while drawing from diverse influences,
is unique to an identifiable group of persons with a distinct culture.
To determine whether the beneficiaries’ artistic expression is unique, the
director must examine each piece of evidence for relevance, probative value,
and credibility, both individually and within the context of the entire record.
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).
The director’s decision failed to note that the beneficiary group
is a klezmer band and seemed to struggle to identify the nature of the group’s
musical performance, focusing instead on the group’s musical influences.
Here, the evidence establishes that the beneficiaries’ music is, first and
foremost, Jewish klezmer music that has been uniquely fused with traditional
Argentine musical styles.
The AAO finds the expert opinion of Professor Kun particularly
persuasive, because he explains 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. He also explains
how the beneficiaries, as South Americans born to Eastern European
immigrants, came to be influenced by both cultures to create something new
and unique to their experience. All three opinion letters recognize the
existence of a distinct Jewish Argentine culture and identity that is expressed
in the beneficiary group’s music and opine that the beneficiary group
is a “leading exponent and innovator of South American klezmer.”
The regulation at 8 C.F.R. § 214.2(p)(6)(ii)(A) specifically permits the
petitioner to submit affidavits, testimonials, or letters from recognized experts
attesting to the group’s performance of a culturally unique art form. USCIS
may reject an expert opinion letter, or give it less weight, if it is not in accordCite as 25 I&N Dec. 799 (AAO 2012) Interim Decision #3752
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with other information in the record or if it is in any way questionable. Matter
of Caron Int’l, Inc., 19 I&N Dec. 791, 795 (Comm’r 1988). In the present
matter, the director did not question the credentials of the experts, take issue
with their knowledge of the group’s musical skills, or otherwise find reason
to doubt the veracity of their testimony. The AAO finds the uncontroverted
testimony to be reliable, relevant, and probative as to the specific facts in issue.
Accordingly, the expert testimony satisfies the evidentiary requirement
at 8 C.F.R. § 214.2(p)(6)(ii)(A).
Furthermore, the published articles submitted recognize a musical
movement in Argentina that fuses Argentine styles with influences from
Jewish music and other Eastern European styles. The articles and opinion
letters place the beneficiary group directly at the forefront of this trend.
Although the director highlighted references to “rock and roll” and other
external influences on the beneficiaries’ music, the evidence as a whole
establishes that the beneficiaries’ audience is a Jewish audience. There
is nothing in the record to suggest that the beneficiary group is recognized
in any circle as a mainstream rock band.
IV. CONCLUSION
The regulations do not require that an art form be “traditional” in order
to qualify as culturally unique. Here, the AAO finds the expert testimony and
the corroborating evidence to be relevant, probative, and credible. The
petitioner has established by a preponderance of the evidence that the modern
South American klezmer music performed by the beneficiary group
is representative of the Jewish culture of the beneficiaries’ home country
of Argentina. Accordingly, the group’s musical performance falls within the
regulatory definition of culturally unique.
Finally, the petitioner has submitted an itinerary indicating that the
beneficiary group will be performing its culturally unique music at Jewish
cultural centers and temples during its short United States tour. The AAO
is satisfied that the group’s performances will be culturally unique events,
as required by 8 C.F.R. § 214.2(p)(6)(ii)(C).
In visa petition proceedings, the burden of proving eligibilityfor the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C.
§ 1362 (2006). Here, that burden has been met.
ORDER: The decision of the director is withdrawn. The petition
is approved.