Avoiding a World of Trouble
UNTWISTING THE P-1 VISA FROM THE P-3 VISA
We’ve recently been getting a number of questions involving whether a “cultural unique” artist or group should obtain a P-1 or a P-3 visa.
Officially, a P-1 visa is for an “internationally recognized group” or 2 or more artists “75 percent of whom have been regularly been working together for a year or more.” (If you’re dealing with a duo, this means you’ll need to make sure at least 1.5% of one has been working with 0.5% of the other.) On the other hand, a P-3 visa is for either an individual or a group coming to the U.S. to perform or demonstrate a program that is “culturally unique.” Simple enough. But nothing involving U.S. immigration law is ever what it seems.
U.S. immigration laws and regulations were intentionally written with a certain degree of vagueness and subjectivity so that they could be “interpreted” either broadly or narrowly depending upon the whims, motivations, and quirks of whomever is in charge of reviewing a visa petition at any given time. Over the years, this has led to a considerable amount of inconsistent and unpredictable results, ever changing evidence requirements, bizarre Requests for Evidence (RFE), and general confusion. And nowhere has this been more evident than in the area of P-3 visas.
Regardless of how a reasonable person might interpret the statutory requirements for an artist or group to qualify for a P-3 visa, the term “culturally unique” doesn’t necessarily mean either “cultural” or “unique.” Officially, the term “culturally unique” is defined 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.” In practice, USCIS, interprets this even more narrowly to mean an art form which must also be indigenous, historical, and/or unique to a particular culture, tribe, or region without any outside or contemporary influences. For example, whereas a troupe of English Morris dancers might qualify for a P-3, the Royal Shakespeare Company would not. And although a non-Western artist or group is more likely to be approved for a P-3 visa, a Vietnamese Water Puppetry Troupe is far more likely to qualify for a P-3 than a Vietnamese pop artist.
In short, USCIS narrowly construes a “culturally unique” performance to be that which would be more appropriate in a natural history museum as opposed to a concert hall or theatre. Indeed, in preparing our own P-3 petitions, we often refer to a performance or concert as a “demonstration” and any avoid overt references to a performer’s talent or artistry.
Even if the artist’s performance involves an oud or a kora, a P-3 petition must confirm that the artist’s performance itself will not include any contemporary influences or artistic embellishments. USCIS is quite adamant that merely because an artist belongs to a specific ethnic group, speaks a specific language, or plays a culturally specific instrument does not make the artist’s performance culturally unique. (This did not bode well for a proposed tour of a Mexican Bagpipe Band!) To be fair, there is some rudimentary logic in this. Nonetheless, this presents a uniquely maddening challenge for legitimate “world music” or for any artist or group who wants to present a “living” culture which embodies not just the past and present, but which reflects broad cultural influences. These narrow interpretations also exclude from the P-3 classification anything that might be considered ethno-pop or contemporary music from another culture or country.
Determining which visa category is best for a non-U.S. artist or group to perform in U.S. will always require a significant amount of specific critical, strategic, and creative analysis. More often than not, the visa category you petition for will depend more on the evidence you have to work with than on the visa category which is most appropriate. With regard to obtaining a P-3 visa, an artist’s popularity, acclaim, or recognition is not going to help much. Unlike preparing an O-1 visa petition where USCIS wants to see extensive documentation and “independent evidence” of the artist’s personal acclaim, accomplishments, and recognition, a P-3 petition is focused entirely on whether or not what the artist will be doing is “culturally unique” and whether or not the artist has been trained to do it. USCIS doesn’t care about the artist or group’s actual talent, acclaim, CD sales, awards, or popularity. Instead, a P-3 petition must establish either by expert letters from anthropologists, musicologists, or other academics, or through some sort of “official” recognition from a cultural or ethnic authority: (1) that the artist is doing something which is indigenous, historical, and/or unique to a particular culture, tribe, or region; (2) how the artist was trained to do it; and (3) that the artist’s performance has “authentic” and contains no contemporary influences or artistic embellishments. So, you may have the world’s worst Ukrainian folk band, but so long as you can show that the group wears traditional costumes and only performs on traditional songs on traditional instruments, then the group will qualify for a P-3. By contrast, if you have an artist or a group that actually has a significant amount of acclaim and recognition, you should be obtaining a P-1 visa instead of a P-3 visa in the first place.
Around our office, the general rule is that unless the performance involves feathers, a head dress, and/or bones, then the artist should first exhaust all visa options other than a P-3.
You can always find more information on our website: www.ggartslaw.com
. And if there’s something in particular you want to know about, be sure to let us know!
Brian Taylor Goldstein and Robyn Guilliams are the founding partners of GG Arts Law, a New York-based entertainment law firm, as well as Managing Directors of Goldstein Guilliams International, through which they provide comprehensive business, project and tour management, and legal services exclusively to the international performing arts and entertainment community. Brian has twice been recognized as one of New York's "Super Lawyers" in the fields of Entertainment, Intellectual Property and Immigration in The New York Times and is a well-known speaker and author on arts and artist management. Robyn is an internationally recognized specialist in foreign artist taxation and artist business matters, as well as a Co-Author of Artistsfromabroad.org, with an impressive past career in arts administration and management at major venues and arts organizations.
THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. One size never fits all. Circumstances and solutions can, and do, vary. Please consult with a professional—legal, medical, or otherwise—familiar with your specific facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, quoting us out of context, or doing anything rash!