U.S. Citizenship and Immigration Services

MATTER OF S-T-C-C-

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 14, 2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a martial arts performing organization, seeks to classify the Beneficiary as a performing artist in a culturally unique program. See Immigration and Nationality Act (the Act) section 101(a)(15)(P)(iii), 8 U.S.C. § 110l(a)(15)(P)(iii). The 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 Director of the California Service Center denied the Form I-129, Petition for a Nonimmigrant Worker, concluding that the record did not establish, as required, that the Beneficiary possesses culturally unique skills pursuant to 8 C.F.R. § 214.2(p)(6)(ii)(A) or (B), and that all of the Beneficiary's performances or presentations in the United States would be culturally unique events pursuant to 8 C.F.R. § 214.2(p)(6)(ii)(C).

On appeal, the Petitioner submits additional evidence and maintains that the record establishes the authenticity of the Beneficiary's culturally unique skills and that all of his activities on behalf of the Petitioner will be culturally unique.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 101 ( a)(l5)(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 such an artist or entertainer or with such a group under a commercial or noncommercial program that is culturally unique ....

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

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) further 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.

Finally, pursuant to the regulation at 8 C.F.R. § 214.2(p )(2)(ii), all petitions for P classification must be accompanied by:

(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;

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(C) An explanation of the nature of the events or activities, the beginning and ending 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.

II. ANALYSIS

A. Introduction

The Petitioner filed the petition indicating that it seeks to employ the Beneficiary as a Chinese martial arts 1 instructor at its California location for one year. The initial submission included the Petitioner's invitation letter to the Beneficiary stating that his duties would be to provide Tai Chi martial arts instruction to children and adults and to represent the petitioning center at various community events. The Petitioner provided an itinerary of seven community events, many located at its center, where the Beneficiary would "give a demonstration of his Tai Chi martial arts skills in order to promote the art ofTai Chi and the [s]ervices that [the Petitioner] provides."

In a support letter, the Petitioner averred that the Beneficiary is highly qualified for the offered position, based upon his being a graduate of the for martial arts in China, and his work there as a martial arts instructor from 2010 to 2014. It described as different from other forms of Tai Chi in that ' uniquely stems directly from

movements, and alternates smooth motions with rapid bursts of power," and that the comparatively "more fast-paced" form of is "an expression of the unique

from ancient times, in martial art form." The Petitioner presented documents showing that although originated from China, this style of martial arts is now practiced and taught in different parts of the world.

In response to the Director's request for evidence (RFE), the Petitioner emphasized that the evidence demonstrates that "the practice of martial art is culturally unique to China," and that the Beneficiary's training at the a school associated with the "is directly connected to the culture." The Petitioner's RFE response included a copy of its weekly class schedule as of February 1, 2016, showing that it offers martial arts classes to students of all levels six days per week.

B. Culturally Unique Program

The regulation at 8 C.F.R. § 214.2(p)(6)(ii) requires that the Petitioner establish the Beneficiary's skills in performing or teaching a culturally unique art form through the submission of affidavits, testimonials, and letters, or through published reviews of his work or other published materials. Regardless of which form of evidence is submitted, it must show that the Beneficiary presents, performs, teaches, or coaches 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. For the reasons discussed below, we

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agree with the Director's determination that the Petitioner did not credibly demonstrate that style martial arts, as practiced and taught in the Petitioner's organization, are a culturally unique art form.

1. Affidavits, Testimonials, or Letters from Recognized Experts

The regulation at 8 C.P.R. § 214.2(p)(6)(ii)(A) allows a petitioner to submit affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the foreign national's skills in performing, presenting, coaching, or teaching the unique or traditional art form. The letters must give the credentials of the expert, including the basis of his or her knowledge. In response to the RFE, the Petitioner submitted a testimonial letter from a martial arts practitioner and instructor, stating that

martial arts are related to "the teachings and philosophies of the and are, therefore, "intrinsically cultural because the philosophy was developed in China over 1 000 years ago by monks from India." did not, however, attest with specificity to the Beneficiary's skills in performing or teaching style martial arts.

The Petitioner also provided a letter from of the a cultural institution "dedicated to fostering understanding between Asians and Americans." stated that

is a culturally unique art form, and [the Beneficiary] is a practitioner of this traditional and culturally unique art form." On appeal, the Petitioner maintains that this letter establishes that the Beneficiary's performances are culturally unique.

While letter satisfies the Petitioner's burden to provide a written consultation from a labor organization under 8 C.P.R. § 214.2(p)(2)(ii)(D), it does not meet the evidentiary requirements at 8 C.P.R. § 214.2(p)(6)(ii)(A). Consultations are advisory and are not binding on U.S. Citizenship and Immigration Services (USCIS). See 8 C.P.R. 214.2(p)(7)(i)(D). Regardless, the letter is not from an expert attesting to the authenticity of the Beneficiary's skills in performing or teaching a unique or traditional art form. The Petitioner offered documents showing that Tai Chi, although originated from China, is now a martial arts style practiced and taught worldwide. does not explain how this specific form of martial arts, as it is performed and taught by the Beneficiary, is "unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons," or identify what evidence she reviewed in reaching her conclusions. Further, while and discussed their own credentials, the Petitioner did not submit evidence to establish that they are "recognized experts" in the Beneficiary's field, as required by the plain language of the regulation at 8 C.P.R.§ 214.2(p)(6)(ii)(A).

On appeal, the Petitioner submits additional testimonial letters from several martial arts instructors, who indicate that the primary purpose of the Petitioner's martial arts classes is to promote the understanding of martial arts throughout the United States, by having students· study the physical forms of those martial arts with a goal toward performing onstage at community and social events. The letters state that martial arts are culturally unique to China because they were developed there by follmvers of the approximately 1,500 years ago and have been passed down for generations. The letters of and

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relate that the authors saw the Beneficiary perform at the m China. of the in China, verifies that the Beneficiary participated in and choreographed martial arts routines for the academy's performance troupe as a student and instructor. Dean of the

in China, where the Beneficiary worked as a choreographer, confirms that he recently met with the Petitioner's director, who advised him that the Petitioner's students "are primarily learning martial arts to gain an appreciation ofthe traditional culture," and that its community performances feature "choreographed martial routines, combined with a stage performance to narrate classic stories of the accompanied by traditional Chinese music. Based upon this information, concludes that the Petitioner's "curriculum and performances constitute [a] culturally unique form of performance art."

Upon review, we find that the record supports the Director's determination that the letters are not sufficiently probative of the "culturally unique" nature of the Beneficiary's skills. The regulation at 8 C.F .R. § 214.2(p )( 6)(ii) specifically requires "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 testimonial evidence does not explain the basis of the authors' knowledge of the Beneficiary's skills.

As a matter of discretion, USCIS may accept expert opinion testimony. 1 USCIS will, however, reject an expert opinion or give it less weight if it is not in accord with other information in the record or if it is in any way questionable. Matter of Caron International, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). USCIS is ultimately responsible for making the final determination regarding a foreign national's eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of Skirball Cultural Center, 25 I&N Dec. 799, 805 (AAO 2012) (holding 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 of persons with a distinct culture; it is the weight and quality of evidence that establishes \vhether or not the artistic expression is "culturally unique").

Here, the record lacks expert letters that detail the culturally unique aspects of the Beneficiary's performance and teaching of Although the authors of the letters affirm that

originated in China, and avers that the petitioning center will perform martial arts routines pertaining to the at community events, the letters do not attest with specificity to the cultural or traditional elements of the Beneficiary's proposed activities. In addition, several of the letters do not establish the credentials of the authors or the manner in which they gained knowledge of the Beneficiary's skills. Based on the foregoing, the Petitioner has not satisfied the evidentiary requirements at 8 C.F.R. § 214.2(p)(6)(ii)(A).

1 Depending on the specificity, detail, and credibility of a letter, USC IS may give the document more or less persuasive

weight in a proceeding.

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2. Documentation that the Performance of the Individual or Group is Culturally Unique

The Director determined that the record does not contain evidence that could, in the alternative, satisfy the evidentiary requirements at 8 C.F.R. § 214.2(p)(6)(ii)(B), which allows a petitioner to submit documentation reflecting that the performance of the foreign national is culturally unique, as evidenced by reviews in newspapers, journals, c;>r other published materials. We agree with the Director that the Petitioner has not submitted reviews or other published materials documenting that the Beneficiary' s performance is culturally unique. The Petitioner submitted photographs showing the Beneficiary practicing and teaching Tai Chi in China. It also provided information about its programs from its website, copies of awards and commendations it received, flyers and photographs of previous community events which it hosted or attended, a Wikipedia article about Tai Chi, favorable student reviews posted online, several articles about its director and its participation in past community events, and flyers for upcoming events, some of which mention the Beneficiary by name. With regard to information from Wikipedia, there are no assurances about the reliability of the content from this open, user-edited Internet site. See Badasa v. Mukasey, 540 F.3d 909 (8th Cir. 2008)?

Regardless, the regulation at 8 C.F.R. § 214.2(p)(6)(ii)(B) requires documentation that is specific to the beneficiary, or his or her individual performance of the claimed culturally unique art form. Unlike the published material in Skirball Cultural Center, 25 I&N Dec. at 803-04, the documents in the present matter do not specify how the skills the Beneficiary will perform or teach in the United States, namely his skills in are culturally unique to China. The fact that Tai Chi has been recognized as having originated in China does not equate to a finding that all modem Tai Chi martial arts programs continue to offer "culturally unique" activities. Based on the foregoing, the materials submitted do not confirm that the Beneficiary's performances or instruction methods are culturally unique.

3. Evidence that All of the Performances or Presentations Will Be Culturally Unique Events

The Director found that the record does not establish that the Beneficiary's proposed performances or presentations as a Tai Chi instructor will be culturally unique events, as required by 8 C.F.R. § 214.2(p)(6)(ii)(C). The Director found insufficient evidence to support a conclusion that a class held

2 See also the online content from https: //en.wikipedia.org/wiki /Wikipedia:General_disclaimer, accessed on April 7, 2017, and incorporated into the record of proceeding, is subject to the following general disclaimer:

WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop a common resource of human knowledge. The structure of the project allows anyone with an Internet connection to alter its content. Please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate, or reliable information ... . Wikipedia cannot guarantee the validity of the information found here. The content of any given article may recently have been changed, vandalized, or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields .

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at the Petitioner's school is a culturally unique event. Upon review, we conclude that the record supports the Director's determination.

First, as previously discussed, the Petitioner did not demonstrate that the Beneficiary's performances or teaching methods are culturally unique. See 8 C.F.R. § 214.2(p)(6)(ii)(A) or (B). Absent evidence that the Beneficiary's particular Tai Chi techniques are cultUrally unique to China, the Petitioner cannot establish that classes taught in this subject will be "culturally unique" events. Even assuming, arguendo, that the Petitioner had satisfied the evidentiary requirements at 8 C.F.R. § 214.2(p)(6)(ii)(A) or (B), it has not shown that the specific artistic or entertainment events for which the Beneficiary's services are sought are in fact unique to a particular country, nation, society, class, ethnicity, religion, tribe or identifiable group of persons with a distinct culture. 8 C.F.R. § 214.2(p)(3).

The Beneficiary will spend the majority of his time teaching daily Tai Chi martial arts classes to students of various levels at the Petitioner's school, in addition to participating in several cultural events in the community. The record indicates that the Petitioner's school offers martial arts classes, but it does not specify the culturally unique aspects of the Beneficiary's instruction and coaching responsibilities. While the Petitioner submitted testimonials and materials from various sources discussing the history and philosophy of Chinese martial arts and Tai Chi, those documents do not explain how, for example, a class held at the Petitioner's school is a culturally unique event. Based on the foregoing, the Petitioner has not established that all of the Beneficiary's performances or presentations in the United States will be culturally unique events, as required by 8 C.F.R. § 214.2(p )(6)(ii)(C).

C. Contract

Although not addressed in the Director's decision, the Petitioner has not provided a written contract or, in the alternative, a summary of the terms of the oral agreement under which it will employ the Beneficiary, as required by the regulation at 8 C.F.R. § 214:2(p)(2)(ii)(B). The petition indicated that the Petitioner will employ the Beneficiary in the position of "Tai Chi Martial Arts Instructor," a full­time position, at a salary of $1,500 per month. This information is reflected in the Petitioner's invitation letter. The Petitioner, however, has not provided a written contract with the Beneficiary, or a summary of the terms of an oral agreement under which the Beneficiary will be employed. While the invitation letter describes the terms and conditions of the employment offered by the Petitioner, the record does not include evidence indicating the terms and conditions accepted by the Beneficiary. The appeal will therefore be dismissed for this additional reason.

III. CONCLUSION

The Petitioner has not established that the Beneficiary is entering the United States solely to perform, teach, or coach under a "program that is culturally unique." Section 10l(a)(15)(P)(iii)(I) and (II) of the Act. In addition, the Petitioner has not demonstrated that all of the Beneficiary's proposed performances or presentations in the United States will be culturally unique events. 8 C.F.R. § 214.2(p)(3) and 214.2(p)(6)(ii). Further, the Petitioner has not provided a copy of a

Matter ofS-T-C-C-

written contract between the parties or, in the alternative, a summary of the terms of the oral agreement under which it will employ the Beneficiary. 8 C.F.R. § 214.2(p)(2)(ii)(B). Accordingly, the Petitioner has not demonstrated eligibility for the immigration benefit sought.

ORDER: The appeal is dismissed.

Cite as Matter ofS-T-C-C-, ID# 181257 (AAO Apr. 14, 2017)

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