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Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 23 , 2016

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a non-profit educational folk art organization, seeks to classify the Beneficiaries as performing artists in a culturally unique program. See Immigration and Nationality Act (the Act) section 101(a)(l5)(P)(iii), 8 U.S.C. § 1101(a)(15)(P)(iii). This P-3 classification makes visas available to foreign nationals who perform, teach, or coach as artists or entertainers, individually or as part of a group, under a culturally unique program.

The Beneficiaries are dan~ers and musicians who perform as the group a dance ensemble from the Republic of Georgia The Director of the California Service Center denied the petition, concluding that the Petitioner did not establish that the Beneficiaries' performance is culturally unique and that their performances in the United States would be culturally unique events.

The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and additional material and maintains that the Director erred in determining that the Beneficiaries are not eligible tor the classification sought.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section IOI(a)(15)(P)(iii) of the Act, provides for classification of a foreign national having a foreign residence which the foreign national 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 a culturally unique artist or entertainer or with such a group under a commercial or noncommercial program that is culturally unique.

The regulation at 8 C.F.R. § 214.2(p)(3) provides, in pertinent part, that:

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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.

In addition, the regulation at 8 C.F.R. § 214.2(p )(6)(i) 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.

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.

Further, the regulation at 8 C.F.R. § 214.2(p)(2)(ii) states that petitions for P nonimmigrant foreign nationals shall be accompanied by the following evidence:

(A) The evidence specified in the specific section of this part for the classification;

(B) Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien(s) will be employed; 1

(C) An explanation of the nature of the events or activities, the beginning and end dates for the events or activities, and a copy of any itinerary for the events or activities; and

(D) A written consultation from a labor organization.

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II. ANALYSIS

A. Introduction

The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, seeking to employ the Beneficiaries, members of the Georgian dance ensemble for a period of approximately three weeks to perform at the following three folk festivals sponsored by the petitioning organization: the m Idaho; m

Utah; and in Utah. In pmt 4 ofthe 0 and P Classifications Supplement to Form 1-129, the Petitioner characterized the nature of the events at which the Beneficiaries' group will perform as, "[p ]erforming arts festivals centered around the preservation and performances of traditional folk dances and music." In part 5 of the supplement, the Petitioner described the nature of the Beneficiaries' duties as "[p ]erforming traditional, culturally-based, unique folk dances and music."

In its initial letter, the Petitioner explained that the folk dance ensemble was founded in 1996 at in Georgia. The Petitioner described itself as a

worldwide organization "working to document, preserve, and promote intangible forms of folk art," and stated that it "sponsors national and international folk art festivals" and "cultural exchanges of performing artists and visual art." The Petitioner noted that its president is the executive director of the

festival, and its treasurer is the executive director of the company that runs the festival.

The Petitioner's initial submission contained a copy of its letter requesting a consultation from the invitation letters on the Petitioner's letterhead from the

above-referenced folk festivals, each festival's contract with the Beneficiaries, the group's perfonnance schedule for each festival, video links for several of the group's past performances, photographs of the group performing at unknown venues, and a letter about the ensemble from the Head of Administration at The Petitioner also supplied a description of 13 Georgian folk dances, from an unidentified source, advising that "[ s ]orne of these dances will be performed at the festival," and an introduction to Georgian regional history and culture "represented by [the Beneficiaries' ensemble]." The Petitioner' s letter to the characterized the ensemble as a "Youth Folk-Choreographic Ensemble" created in the 1990s to achieve "popularization of Georgian folk dances," and provided a listing of each Beneficiary and his/her role in the ensemble. The letter indicated that the group's members have changed over the years, identifying three members not listed in the instant petition as the group's leaders and describing them as "a traditional Georgian family of artists." The letter advised that the group has performed on Georgian and Russian television, and in live performance"s locally and in Europe, including in Turkey, Greece,

(

1 In its response to the Director' s request for evidence (RFE) the Petitioner advised U.S. Citizenship and Immigration Services (USClS) that, due to a typographical error, the name of the Beneficiaries' ensemble was incorrect in its initial letter and in a letter requesting a consultation on behalf of the group. The Petitioner submitted corrected copies of those documents. We note that the name of the Beneficiaries ' group was correctly stated on the Form 1-129.

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Italy, Bulgaria, the Czech Republic, and Germany. The Petitioner's letter further noted the opening of a studio teaching "the art of dancing" in

The letters from and invited the Beneficiaries "to represent Georgia" and explained that "[t]he purpose of folk dance festivals is to promote the preservation of dance of ethnic cultures," "to celebrate our differences and similarities," and "to promote international understanding through cultural exchanges." The letters stated that those festivals have performances from several groups with each group performance lasting approximately 10 minutes, that "instruments must be traditional." The contracts from those festivals revealed that the Beneficiaries' group "will present only traditional dances in traditional costumes. All dances must be accompanied by live music performed by musicians in traditional costumes" and that "[ c ]horeographed works are also permitted if based substantially on traditional folk dances." The invitation letter from indicated that the Beneficiaries' ensemble "would be an excellent representative of Georgian culture." The contract from provided that "[a]ll music, dances and costumes must be authentic traditional folk, not

' contemporary /interpretive."

The Director issued an RFE, asking for additional information to establish that the Beneficiaries are coming to the United States to participate in a qualifying cultural event or engagement to further the understanding or development of a unique or traditional ethnic, folk, cultural, musical, theatrical, or other art form. In response, the Petitioner presented an additional support letter, reiterating that the Beneficiaries will be "representing the Republic of Georgia" in the above-referenced festivals, the purpose of which is to "promote the preservation of dance of ethnic cultures," "celebrate our differences and similarities," and "promote inte~ational understanding through cultural exchanges." The Petitioner explained that the group "may also be asked to provide a workshop or an outreach program to the elderly or disabled." The Petitioner also submitted a "no objection" letter from the

The Director denied the pet1t10n, concluding that the Petitioner did not demonstrate that the Beneficiaries' artistic field is culturally unique as defined at 8 C.F.R. §' 214.2(p)(3) or that all of their performances or presentations will be culturally unique events. On appeal, the Petitioner contends that the record before the Director verified the Beneficiaries' eligibility, and provides additional evidence. Upon review, and for the reasons discussed herein, the Petitioner's submissions are not sufficient to establish that the Beneficiaries, individually or as a group, are skilled in performing a culturally unique art form.

B. Culturally Unique

The regulation at 8 C.F.R. § 214.2(p)(6)(ii) requires that the Petitioner show that the Beneficiaries' performance or art form is culturally unique through the submission of affidavits, testimonials, and letters, or through published reviews of their work or other published materials. Regardless of which form of evidence is offered, it must establish that the Beneficiaries' group presents, performs, teaches, or coaclles 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.

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1. Affidavits, Testimonials, or Letters from Recognized Experts

The regulation at 8 C.F .R. § 214.2(p )( 6)(ii)(A) allows the Petitioner to submit affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the foreign national'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 foreign national's or group's skill. As evidence under this option the Petitioner initially supplied a letter from Head of Administration at stating that the group "completely consists of students," and has had the same artistic director since its founding in 1996. He provided a listing of prizes the group has received and festivals/tours in which it has performed between 1998 and 2015. letter did not, however, address or testify to the authenticity of the Beneficiaries' culturally unique skills.

The Director's RFE advised the Petitioner to supply additional affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the Beneficiaries' skills in performing or presenting a traditional or unique art form. In response, the Petitioner submitted a "no objection" letter from

of the stating that the petition and supporting documentation "establishes that [the Beneficiaries' group] presents a unique performance representative of the cultural heritage and musical traditions of Georgia." While this letter satisfies the Petitioner's burden to provide a written consultation from a labor organization pursuant to 8 C.P.R. § 214.2(p)(2)(ii)(D), it does not meet the evidentiary requirement at 8 C.P.R. § 214.2(p)(6)(ii)(A). In this matter, the consultation does not constitute a letter from an expert attesting to the authenticity of the Beneficiaries' skills in performing a unique or traditional art form, because it does not detail how their performances are "unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons." Specifically, the unsupported statement that the Beneficiaries' ensemble "presents a unique performance representative ofthe cultural heritage and musical traditions of Georgia" does not confirm that the performances of the Beneficiaries are unique to one of the described groups. Further,

does not explain how reached this conclusion based on the evidence included with the petition.

The Director determined that the Petitioner did not document any culturally unique aspects of the Beneficiaries' skills or performances as a dance ensemble. On appeal, the Petitioner submits an additional letter from with content identical to his previous letter. The Petitioner also provides letters from production director and a dance teacher at

and head of and

states that the Beneficiaries' group "is a highly acclaimed folk dance group" which captures "the history and essence of the people of Georgia in their performances with excellent choreography, beautiful costumes and wonderfully traditional music." She clarifies that the ensemble "brings a wide range of dances representing all areas of Georgia" and describes several types of Georgian traditional dances. She explains that Georgian folk dance is very unique, and that tl;le war dances that the

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Beneficiaries' group performs "have been derived from traditional military movement and ~re very distinctive." Upon review, this letter does not satisfY the evidentiary requirement at 8 C.F.R. § 214.2(p)(6)(ii)(A). Although states that there are cultural elements to the Beneficiaries' performances, the record does not establish 4er credentials as a recognized expert in the field of Georgian folk dance. letter does not state that she has expertise in Georgian folk dance and the Petitioner has not submitted any documentation indicating that she possesses such expertise.

In his letter, states that the Beneficiaries' ensemble has beeh operating for 20 years at that "[ m ]embers of the ensemble are high level professionals" who have won awards at international and national festivals, and that the ensemble's concerts are posted on and

letter does not describe with specificity the cultural or traditional elements of the Beneficiaries' performances.

Upon review, the record supports the Director's conclusion that the submitted letters do not confirm the Beneficiaries' skills in performing, presenting, coaching or teaching a unique or traditional art form, as required by 8 C.F.R. § 214.2(p)(6)(ii)(A). Here, for the reasons discussed above, the expert opinion testimony is lacking in sufficient probative value, as it does not assist USCIS in determining whether the Beneficiaries are skilled in 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 only letter claiming to describe the culturally unique elements of the Beneficiaries' dance form is from

a person whose expertise has not been established. None of the remaining reference letters specifically describe the cultural aspect to the Beneficiaries' performance or attest to the ·cultural authenticity of their performance. On the Form I-129, the Petitioner indicated that the Beneficiaries will be "[p]erforming traditional, culturally-based, unique folk dances and music" without articulating or defining precisely what is culturally unique about the Beneficiaries' art form. References to traditional Georgian folk dances or Georgian culture, without further information or documentation, are insufficient to meet the Petitioner's burden of proof. Such statements do not identify the Beneficiaries' culturally unique skills or the unique art form to which they apply those skills.

In Matter ofSkirball Cultural Center, 25 I&N Dec. 799 (AAO 2012), we held that 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 ofpersons with a distinct culture; it is the weight and quality of the documentation that corroborates whether or not the artistic expression is "culturally unique." In that case, we found sufficient scholars' letters explaining in detail how Klezmer music in general is the music of a specific ethnic group of people, and how the Argentine version, which combines Eastern European roots with native Argentine culture, produces a unique Jewish Argentine music. !d. at 802-03. While it appears that 1 the Beneficiaries' performance contains cultural elements such as traditional dress and music, the record before us lacks expert letters that detail the culturally unique aspects of the Beneficiaries' duties performing previously as dancers in folk festivals, as found in Skirball Cultural Ce;nter. The exhibits do not sufficiently identify the culturally unique aspects of the performance that make the Beneficiaries' performance distinct to a particular group of persons and recognizable as a unique style of artistic expression that exists in Georgian culture. While characterizes Georgian folk dance as

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"very unique," U.S. Citizenship and Immigration Services (USCIS) need not accept primarily conclusory statements. 1756, Inc. v. The Att 'y Gen. of the United States, 745 F. Supp. 9, 15 (D.C.D. 1990). As the Petitioner submitted no other affidavits, testimonials or letters from recognized experts, the record supports the Director's determination that the testimony does not satisfy the requirement at 8 C.F.R. § 214.2(p)(6)(ii)(A).

2. Reviews in Newspapers,, Journals, or Other Published Materials

The regulation at 8 C.F.R. § 214.2(p)(6)(ii)(B) alternately allows the Petitioner to submit documentation that the performance of the foreign national or group is culturally unique, as evidenced by reviews in newspapers; journals, or other published materials. The Director concluded that the Petitioner did not satisfY this regulation. Upon review, we agree with that finding.

As noted by the Director, the Petitioner did not submit any reviews in newspapers, journals, or other published materials that would illuminate how the Beneficiaries' performance 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 Petitioner initially provided video links for several of the group's past performances, photographs of the group performing at unknown venues, a description of 13 Georgian folk dances from an unknown source, and an introduction to Georgian regional history\ and culture. The description of the various Georgian folk dances characterizes them as war, shepherd, mountain, romantic or wedding dances originating in various regions of the Republic of Georgia, and indicates that " [s]ome of these dances will be performed at the festival."

On appeal, the Petitioner offers a completed roommate request form for the individual Beneficiaries, a 2012 diploma the ensemble received at a and a 2014 foreign language article which contains a photograph of the Beneficiaries' ensemble. The Petitioner has not provided any translations of the 2012 credential and the article.' The regulation at 8 C.F .R. § 103 .2(b) states: "Any document containing foreign language submitted to USCIS shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English." Because the Petitioner has not supplied translations, we cannot determine whether the evidence supports the Petitioner' s positions.

.· Unlike the published material in Sldrball Cultural Center, 25 I&N Dec. at 803-04, none of the exhibits in the matter before us specify how the skills the Beneficiaries will perform in the United States are culturally unique to the Republic of Georgia. The above-referenced documents do not contain sufficient corroboration that the Beneficiaries' dance performances are an art form that is culturally unique to the Republic of Georgia, as evidenced by reviews in newspapers, journals, or other published materials. There record does not include evidence that describes, specifically, the type of dance to be performed at the Petitioner' s concerts or how the Beneficiaries' performance will be culturally unique. 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 Petitioner bears the burden of establishing that the Beneficiaries'

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artistic expression is unique to an identifiable group of persons with a distinct culture, beyond that it was performed in traditional costumes to traditional music. The Petitioner's broad position that the Beneficiaries' style of Georgian dancing is an art form culturally unique to the Republic of Georgia is insufficient absent corroboration that satisfies the' evidentiary requirements at 8 C.F.R. § 214.2(p)(6)(ii)(A) or (B). Matter ofSojjici, 22 I&N dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'! Comm'r 1972)). The petition may not be approved as the Petitioner has not fulfilled the requirements at 8 C.F.R. § 214.2(p)(6)(ii)(A) or (B).

3. Evidence that all of the Performances or Presentations will be Culturally Unique Events

The Director concluded that the Petitioner had not shown that all of the Beneficiaries' performances or presentations would be culturally unique events, as required by 8 C.F.R. § 214.2(p)(6)(ii)(C). Upon review, the record supports the Director's determination. As previously discussed, the Petitioner has not offered relevant, probative material to confirm that the Beneficiaries' performances are culturally unique, as required by 8 C.F.R. § 214.2(p)(6)(ii)(A) or (B). As noted by the Director, absent evidence that the Beneficiaries' style of performance is culturally unique to the Republic of Georgia, the Petitioner has not established that the group' s dramatic performances will be "culturally unique" events. For this reason, the Director properly found that the exhibits do not satisfy the requirement set forth at 8 C.F.R. § 214.2(p)(6)(ii)(C).

. III. CONCLUSION

In summary, the statute requires that the Beneficiaries enter the United States solely to perform, teach, or coach under a program that is culturally unique. Section 101(a)(15)(P)(iii)(II) of the Act, 8 U.S.C. § 1101(a)(15)(P)(iii)(II). To obtain classification of the Beneficiaries under this section of the Act, the Petitioner must submit evidence that all of the Beneficiaries' performances or ' presentations will be events that meet the regulatory definition of the term "culturally unique." 8 C.F.R. § 214.2(p)(3) and 214.2(p)(6)(ii). The Petitioner did not meet these requirements. Accordingly, the appeal will be dismissed.

The appeal will be' dismissed for the above stated reasons. It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden.

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ORDER: The appeal is dismissed.

Cite as Matter of ID# 13735 (AAO Nov. 23, 2016)

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