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Interim Decision #3752

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 the

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.

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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.”

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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 beneficiary group’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

beneficiary group and its musical style as follows: “This ensemble is composed

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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 biography of 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 music

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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.

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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’s

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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 accord

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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 eligibility for 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.

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