non-precedent decision of the administrative appeals ... · brand of post-surf punk rock...

MATTER OF D-C-M-, LLC

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 9, 2016

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a business engaged in music and concert promotion and management, seeks to classify the Beneficiaries as performing artists in a culturally unique program. See Immigration and Nationality Act (the Act)§ 101(a)(15)(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 Director, California Service Center, denied the petition. The Director concluded 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 maintaining that the Director erred in determining that the record did not establish the Beneficiary's eligibility for the requested classification. Upon de novo review, we will dismiss the appeal.

I. LAW

Section 1 01(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.P.R.§ 214.2(p)(3) provides, in pertinent part, that:

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.

Matter of D-C-M-, LLC

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.

The regulation at 8 C.P.R. § 214.2(p)(2)(ii) states that petitions for P nonimmigrant foreign nationals shall also 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;

(C) An explanation ofthe 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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We have held that, "truth is to be determined not by the quantity of evidence alone but by its quality." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). That decision explains that, pursuant to the preponderance of the evidence standard, we "must examine each piece of evidence for relevance, probative 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." Id.

II. ANAYSIS

A. Introduction

The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, on October 16, 2015, indicating on the form and the accompanying letter that it is a business engaged in music and concert promotion and management, and that it sought to hire the Beneficiaries, members of the Iranian

band to perform for the period between , 2015, and , 2015, Idaho and a number of other shows in various locations." The

Petitioner described the which it created in "for the purpose of developing the local music and art scene through concert promotion and community building," and stated that the

festival, "will feature a series of performances intended to advance Persian culture, peace and understanding consistent with the mission of the festival, which is to present a culturally unique program for audiences."

At issue are whether the Petitioner included affidavits, testimonials, or letters from recognized experts under 8 C.F.R § 214.2(p)(6)(ii)(A), or reviews in newspapers, journals, or other published materials in accordance with 8 C.F.R § 214.2(p)(6)(ii)(B), and whether the record contains evidence that all of the performances or presentations will be culturally unique under 8 C.F.R § 214.2(p)(6)(ii)(C). For the reasons discussed below, the record supports the Director's determination that the Petitioner has not met any of these requirements. Rather, the record reflects that the Beneficiaries, rather than performing an art form unique to a particular qualifying group, are a Persian-influenced band.

B. Artist or Entertainer in Culturally Unique Program

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 the Beneficiaries' work or other published materials. Regardless of which form of evidence is offered, it must establish that the Beneficiaries' group 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.

1. Affidavits, Testimonials, or Letters from Recognized Experts

The regulation at 8 C.F.R. § 214.2(p)(6)(ii)(A) allows a petitioner to offer affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the beneficiary' s or group's skills in performing, presenting, coaching, or teaching the unique or traditional art form and giving the

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credentials of the expert, including the basis of his or her knowledge of the beneficiary's or group's skill. The Petitioner described the Beneficiaries as "two of the founding members of a well-known, underground band from Iran," which has "recorded a number of singles and is currently working on its first album," and the Beneficiaries' style of music as a "unique brand of post-surf punk rock music." The Petitioner argued that the Beneficiaries are a "culturally unique band" producing "genuinely compelling music with a unique cultural perspective. Their style is an eclectic mix of ordinary Persian culture and modernity, hinting at the emergence of the longsimmering artistic consciousness of the new Iranian youth." The Petitioner's initial submission did not include any testimonial letters. In response to the Director's request for evidence (RFE), the Petitioner supplied such letters from its representative, and from an IranianAmerican musician and music scholar.

stated that the Beneficiaries' music, which he described as Persian post-surf punk rock, is "quite culturally unique as the usual Persian musicians who visit the U.S. tend to be those specializing in traditional music. What makes these musicians 'unique' is that they are Persian, but play music that is Persian, yet influenced by punk rock." does not, however, explain his expertise in culturally unique music from Iran. On appeal, the Petitioner admits that it "cannot purport that

is an expert on Iranian culture," but maintains that is "an expert on . . . international rock bands" and that he "has the expertise to evaluate the music of a rock band and assess the band's originality" and "uniqueness." Upon review, we concur with the Director's determination that because is not a recognized expert in the field of Iranian music his letter is not probative of the "culturally unique" nature of the Beneficiaries' performance.

described the Beneficiaries' as an '"Iranian' band" whose "music is rooted in Persian music"; although, "to the average listener, it does not sound 'Persian' or Eastern." explained that their influences include "rock and roll, punk rock and to some extent American blues" as well as "Persian pop, folk and classical music," resulting in a sound that is "interesting and extremely unique." Discussing the Iranian music scene, affirmed that their music "is representational of the energy and vigor of Iran's post-revolution youth." He continued: "Thus, esthetically, the sound of their music is 'culturally unique' as it is created from an eclectic recipe of musical disciplines and the musicians themselves are culturally unique in that they represent an exciting generation that is driving an explosive cultural change."

The Director concluded that while the holds an enthusiastic and positive opinion of the Beneficiaries' musical performance his letter did not satisfy the requirements of 8 C.F.R. § 214.2(p)(6)(ii)(A), because it did not discuss how the Beneficiaries' or punk rock performance is culturally unique to Iran. The Director observed that general statements such as that the Beneficiaries' music is culturally unique because it is "rooted in Persian music" or "an eclectic recipe of musical disciplines" and that the Beneficiaries, themselves, are culturally unique because "they represent an exciting generation that is driving an explosive cultural change" does not establish how the Beneficiaries' group presents, performs, teaches, or coaches a style of artistic expression, methodology, or medium which is unique to Iran. On appeal, the P~titioner quotes from letter and argues that the Director did not properly evaluate it and accord it the appropriate weight. Upon review,

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we concur with the Director's finding that letter 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 the letter does not explain how the Beneficiaries' performances are "unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons."

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." As a matter of discretion, USCIS may accept expert opinion testimony, but may 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 does not create a presumption of eligibility. Id.; see also Matter of Skirball Cultural Center, 25 I&N Dec. 799, 805 (AAO 2012) (holding that a petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiary's 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 that confirms whether or not the artistic expression is "culturally unique.")

In Skirball Cultural Center, which the Petitioner cites on appeal, 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. Id. at 802'-03. The letters in that case discussed the beneficiaries' band specifically and how the band itself was culturally unique. The evidence of record in this matter does not support the Petitioner's position that the Beneficiaries' performance of "American rock, punk and blues with distinct Persian influences" is a culturally unique activity. The expert letter does not detail the culturally unique aspects of the Beneficiaries' performance of rock music as was the case in Skirball Cultural Center. Rather, the letter from described the Beneficiaries as member of an Iranian band that has quickly gained a cult following in Iran and abroad, and which has a music sound that is "is rooted in Persian music" and "created from an eclectic recipe of musical disciplines," without mentioning any culturally unique aspects of their performance. users need not accept primarily conclusory affirmations. 17 56, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). Regardless, a combination of influences unique to a particular band is not necessarily indicative of a style of artistic expression that is unique to a distinct culture. Accordingly, the case the Petitioner cites on appeal, Skirball Cultural Center, 25 I&N Dec. at 799, does not support approval of this petition. As letter did not examine the cultural or traditional elements of the Beneficiaries' performances, it is not probative of the "culturally unique" nature of the Beneficiaries' performance. The evidence of record supports the Director's determination that the testimonial documentation does not satisfy the evidentiary criterion at 8 C.F.R. § 214.2(p)(6)(ii)(A).

(b)(6)


2. Documentation that the Performance is Culturally Unique

The regulation at 8 C.F.R. § 214.2(p)(6)(ii)(B) allows the Petitioner to offer documentation that the Beneficiaries' performance is culturally unique, as exemplified by reviews in newspapers, journals, or other published materials. The Petitioner's initial filing included two online articles about one dated 2011, from the news aggregation website and the other dated 2014, published at The Petitioner also provided screen shots for several of the group's music videos, broadcast on The Director determined that the items do not meet this evidentiary criterion, because while those exhibits establish that the Beneficiaries are Iranian performers who enjoy a growing reputation in their native country, they do not document that the Beneficiaries' performance is an art form culturally unique to Iran. As explained below, we concur with the Director's determination that the evidence did not satisfy the regulatory requirements at 8 C.F.R. § 214.2(p)(6)(ii)(B), because the submitted published materials about the Beneficiaries do not demonstrate how their performance is culturally unique.

Regarding the submitted articles, the 2011 article introduced two of the band's video clips, refers to the group as, "part of a booming underground scene, making Rock and Blues and Country - Iranian style," and quoted Beneficiary in expressing the group's decision to pursue performance opportunities abroad. The 2014 article discussed how the group is gaining attention, not because they are a musical group ''from Iran," but because the group "is making genuinely compelling music" which the article described as "influenced by a wide array of contemporary influences ranging from punk to garage rock to music." The screen shots are for music videos of the group's songs and as well as their covers of songs by the rock bands

and These materials do not 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).

Similarly, the Petitioner's description of its music festival does not differentiate the Beneficiaries as culturally unique rather than an Iranian rock band. In response to the Director's RFE, the Petitioner provided an article about its upcoming festival published on the website which states that the five-day, multi-venue festival "will feature an eclectic mix of artists," and names as some of the performers "a Syrian wedding singer .... who has captured the attention of the West's music world," "Idaho native and veterans of and While a culturally unique group could perform at a music festival, the evidence in the aggregate is more consistent with a rock band and nothing in the record suggests otherwise. There is no exhibit in the record that describes, specifically, how the Beneficiaries' performance will be culturally unique as defined at 8 C.F.R. § 214.2(p)(3). The Petitioner bears the burden of establishing that the Beneficiaries' artistic expression is unique to an identifiable group of persons with a distinct culture rather an expression of the band's unique sound.

Unlike the published material in Skirball Cultural Center, 25 I&N Dec. at 803-04, none of the items in the matter before us specify how the skills the Beneficiaries will perform in the United States, namely the skills of performing as an Iranian rock band, are culturally unique to Iran. The regulations do not

(b)(6)


require that an art form be "traditional" in order to qualify as culturally unique. However, nothing in Skirball Cultural Center suggests that performing in a style that is influenced by one's own culture is sufficient to establish that the performances are culturally unique. Based on the foregoing, the Petitioner has not submitted reviews or other published materials documenting that the Beneficiaries' performance is culturally unique.

The Petitioner's broad contention that the Beneficiaries' style of rock music is an art form culturally unique to Iran is insufficient absent supporting documentation that satisfies the evidentiary requirements at 8 C.F.R. § 214.2(p)(6)(ii)(A) or (B). Matter of Sojfici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The petition may not be approved as the Petitioner has not submitted items to satisfy the evidentiary requirements at 8 C.F.R. § 214.2(p)(6)(ii)(A) or (B).

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

The Director determined that the Beneficiaries' proposed performance as an Iranian rock band will not be a culturally unique event pursuant to 8 C.F.R. § 214.2(p)(6)(ii)(C). First, as previously discussed, the Petitioner has not offered adequate materials to confirm that the Beneficiaries' performance is culturally unique, as required by 8 C.F.R. § 214.2(p)(6)(ii)(A) or (B). Absent evidence that the Beneficiaries' style of music is culturally unique to Iran beyond their performing as an Iranian rock band, the Petitioner cannot establish that the group's performance of Iranian rock music will be a "culturally unique" event.

In addition, the culturally unique aspects of the Beneficiaries' performances have not been discussed in the record. In response to the Director's RFE the Petitioner submitted a press release from the website

noting that the Petitioner's festival was named the city's cultural ambassador for The Petitioner also provided the above-referenced letter from its representative and the above-referenced article about the proposed festival published on the website

The press release stated that the Petitioner's festival was named cultural ambassador in recognition of the festival's "positive impact on the city's visibility, economy and cultural scene," and described the festival as hosting national and local music acts, and capturing the "essence of creative, vibrant and unique cultural scene- especially its music." While indicative of the festival's value to the city of the award does not demonstrate how the event will be a venue for culturally unique performances, or how the Beneficiaries' performance at the event will be an event culturally unique to Iran. In addition, as previously discussed, while a culturally unique group could perform at a music festival, and while the article about the upcoming festival lists a Syrian performer, it does not otherwise characterize the event as a venue for culturally unique performances or establish how the Beneficiaries' performance as an Iranian rock band held at the specified venue is a culturally unique event.


The Petitioner's general arguments, in its initial letter of support and in response to the RFE, that the Beneficiaries perform a "unique brand of post-surf punk rock music" with "a unique cultural perspective" and its emphasis that its festivals feature performers from diverse cultures are insufficient to establish that the Beneficiaries' proposed performance at the festival is a culturally unique event. The Petitioner has not indicated how the Beneficiaries' performance in the United States would be culturally unique to Iran or the culture of Iran. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Sojjici, 22 I&N Dec. at 165 (citing Treasure Craft of Cal[fornia, 14 I&N Dec. at 190). Based on the foregoing, the Petitioner has not shown that the Beneficiaries' performance will be a culturally unique event, as required by 8 C.P.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. § 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.P.R. §§ 214.2(p)(3) and 214.2(p)(6)(ii). The Petitioner did not meet these evidentiary requirements. Accordingly, the appeal will be dismissed.

The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofD-C-M-, LLC, ID# 17337 (AAO Mar. 9, 2016)

non-precedent decision of the administrative appeals ... · brand of post-surf punk rock...

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