U.S. Citizenship and Immigration Services

MATTER OF MGB- S-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. II, 2018

APPEAL OF VERMONT SERVICE CENTER DECISION.

PET!TION: FORM 1-129, PET!TION FOR A NONIMMIGRANT WORKER

The Petitioner, an entertainment, event production, and business services company, seeks to classit)' the Beneficiaries as performing artists in a culturally unique program. See Immigration and Nationality Act (the Act) section !Ol(a)(l5)(P)(iii); 8 U.S.C. § IIOI(a)(l5)(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 Vermont Service Center denied the petition, concluding that the record did not establish, as required, that (I) the Petitioner is in business as an agent and (2) the Benetlciaries are culturally unique performers and would be participating in culturally unique events. The Director also found the itinerary insufficient.

On appeal, the Petitioner asserts that, if considered with the evidence supporting a previous petition, the current record establishes eligibility.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 101 (a)(l5)(P)(iii) of the Act provides for classitication of a foreign national having a foreign residence which the foreign national has no intention of abandoning who performs individually or as a group and seeks to enter the United States temporarily solely to participate in a program that is culturally unique.

The regulation at 8 C.F.R. § 214.2(p)(6)(i) expands on the statute as follows:

(A) A P-3 classitication 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.

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Maner ofMGB- S-. Inc.

(B) The arti st 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 fonn. The program may be of a commercial or noncommercial nature.

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

Culturally unique means a style of arti stic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tiibe, or other group of persons.

The regulation at 8 C.F.R. § 214.2(p )(6)(ii) also 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 skill s in performing, presenting, coaching, or teaching the unique or traditional mi form and giving the credentials of the expert, including the basis of his or her knowledge of the alie'n's or group's skill, or

(B) Documentation that the performance of the alien or group is culturally unique, as evidenced by revicv.;s in newspapcrs, joumals, or other published materials; and

(C) Evidence that all of the perfo m1anccs_ or presentations will be culturally unique events.

Finall y, we have held that, "truth is to be determined not by the quantity of evidence alone but by its quality." lvlalfer (?l Chawathe, 25 l&N Dec. 369, 376 (AAO 201 0). That decision explains that, pursuant to the preponderance of the evidence standard, we "must examine each piece of evidence tor relevance, probati ve value, and credibility, both individually and within· the context of the totality of the evidence, to determine whether the fact to be proven is probably true." Jd.

II. ANA LYSIS

-ln its initial cover letter, the Petitioner indicated that it was organizing, producing, and promoting a series of live vocal concerts and events featuring the Beneficiaries, two brothers who perform together. It characterized them as "superbly talented and culturally unique." It then explained that their act "features a number of trad itional music and songs from classical Russian and Kazakh repertoire," although it offered examples of both brothers singing at opera festivals. One brother '\vas a resident at the m Kazakhstan." While the Petitioner relerenced an enclosed iti nerary, the only evidence accompanying the petition pertained to the Beneticiaries' entry into the United States as visitors. fn a subsequent submission, the Petitioner reques!ed "to consolidate"·this petition vvith a separate "pending" petitio!) invo lving the same pat1ies. It did, however, present a no objection letter from of the

a memorandum of understanding and written summary of an oral

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Maller of MGB- S-. Inc.

agreement, and materials pertammg to several venues who affirm their interest 111 hosting the Beneficiaries as performers.

The Director advised that "each petition must stand on its own" and concl uded tha.t the Petitioner had iwt provided a sufficient iti nerary and demonstrated the culturally un ique aspects of the Beneficiaries as artists and the events where they would perform. The Director also determined insufficient evidence that the Petitioner is in business as an agent. On appeal, the Petitioner sought a 30 day extension to. file a brief, but in that supplemental tiling maintains that the Beneticiaries cannot timely obta in items from overseas that accompanied the earlier petition. The Petitioner cites no provision, and we know or none, that allows it to rely on materials supporting a prior petition that U.S. Citi zenship and Immigration Services (USCIS) has denied.'

Page 3 of the instructions· to the Form I-129, Petition for a Nonimmigrant Worker, specifies that a petitioner "must submit all required initial evidence along with the supporting documentation with [its] petition at the time of liling." The Director correctly advised the Petitioner that it must support each peti tion with the requisite attachments. Accordingly, we will review the items supporting this petition only. For the reasons discussed below, the Petit ioner has not met the regulatory requiremeots for verifying that the Beneficiaries are culturally unique artists and will so lely perform at culturally unique events. We also tind the itinerary and evidence that the Petitioner is doing business as an agent insufficient.

A. Beneficiaries as Culturally Unique Artists

As quoted above, the regulation at 8 C.F.R. § 2 14.2(p)(6)(ii)(A), (B) provides that a petitioner may demonstrate the culturally unique nature of the beneficiaries' performances in two ways. The record before us, however, contains no newspaper or joumal reviews or other published materials about the Beneficiaries to satisfy R C.F.R. § 214.2(p)(6)(ii)(B). It remains whether the letters in the record constitute atlidavits, testimonials, or letters from recognized experts as permitted under 8 C.F.R. § 214.2(p)(6)(A).

The no obj ec tion letter n·om at does not demonstrate that the Beneficiaries ' performances are culturally unique. She affirms that the application she rev iewed "meets the current regulations in thi s category." Nevertheless, she neither details the brothers' skill s nor describes her own expertise and basis or her knowledge. Accordingly, while her letter may fuHill the consultation requi rements at 8 C. F. I~. ~ ~ 14.2(p)(7)(v), it does not meet the testimonial requirements of 8 C.F.R. § 214.2(p)(6)(ii)(A).

While the Petitioner maintains on appeal that offers to play at venues that serve a Russian and former Soviet clientele logically indicate a demand for the Beneficiaries' culturally umque performances, the letters from venue operators do not satisfy the requirements of 8 C.F.R. § 214.2(p )( 5)(i i)( A). These letters confirm that the establishments focus on Russian and former

1 USCIS denied the prior petil ion. on September 5, 20 I 7.

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Maller (~(MCi/3- S-. Inc.

Soviet performances or serve a clientele from that region and two of them specify that the brothers will perform "folk music and romances.'' None of the authors, however, provide their credentials for evaluating the culture of these areas or explain how the Beneficiaries performances are unique to a particular country, nation , society, class, ethnicity, religion, tribe, or other group of persons.

A final letter from of the is also insutlicient. He confirms that he enjoyed working with "unique and highly talented a11ist[s]" like the Beneficiaries and that he hopes to work with them in the future. He does not clarify the nature of the collaboration, his own credentials, or how the Beneficiaries' skills and performances are culturally unique. Comp(tre Maller (?l Skirba/1 Cull ural Center, 25 I&N Dec. 799, 802-03 (AAO 20 12) (finding suffic ient scholars' letters explaining in detai l how Klezmer mus ic in general is the music of an ethnic group of people, and how the Argentine version, which combines Eastern European roots with native Argentine culture, produces a unique .Jewish Argentine music). For all of these reasons, the Petitioner has not satisfied 8 C.F.R. § 214.2(p)6)(ii)(A) or (B) and, as such, has not established that the Benefic iaries' performances are unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.

B. Culturally Unique Events

The record contains several letters from restaurants, adult day care fac ilities, a gallery, a music center, and a medical research company inviting the Beneficiaries to perfomi at their venues or for a company party. The. letters affirm a Russian and former Soviet clientele or require the performance of "folk songs and romances." The cl ientele of the events is not determinative. For example, singing opera for a primarily Russian/ former Soviet audience does not transform a performance of that international art to an event unique to a particular country, nation, society, class, ethnic ity, religion, tribe, or other group of persons. The record lacks information about each venue to demonstrate that all of the Beneficiaries' performances will be at culturally unique events.

C. Itinerary and Evidence or Doing Business as an Agent

The Peti tione r must provide a contract or a summary of an oral agreement.2 A company in business as an agent may file the petition with a contract and an itinerary.3 While the Peti tioner submi tted a summary of' an oral agreement with the wages, it did not include confirmation that it is in business as an agent. For example, as the Director noted, the record does not contain agreements between the Petitioner and the venues. The Petitioner does not address this concern on appeal by either providing evidence that it does business as an agent or qualifies under a separate agent provision. Without evidence that it is in business as an agent, it has not demonstrated it IS a qualit)'ing petitioner.

2 8 C.F.R. § 214.2(p)(2)(ii)(B). 3 8 C.F.R. § 2 14.2(p)(2)(iv)(E)(2).

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Mauer of MGB- S-. Inc.

The Director also noted the lack of an itinerary with specific dates. Instead, several venues affirm that they would schedule the Beneficiaries to perform once or twice per month. On appeal, the Petitioner maintains that delays in tiling and approval of a petition prevented the venues from confirming specific dates. While USCIS can offer some flexibility based on industry standards, the Petitioner has not demonstrated that performing venues generally do not schedule specific dates for performers in advance. Accordingly, the Petitioner has not complied with the itinerary requirement.

Ill. CONCLUSION

The Petitioner has not submitted an itinerary and has not established (I) that it is in business as an agent and (2) that the Beneficiaries are culturally unique performers coming to the United States solely to participate in culturally unique events.

ORDER: The appeal is dismissed.

Cite as Matter o[MGB- S-. Inc., ID# 1165435 (AAO Apr. II, 2018)

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