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P-2 Status for Artists, Entertainers and Entertainment Groups Pursuant to P-2 Reciprocal Exchange Programs

Written by Henry J. Chang

Overview

Section 101(a)(15)(P)(ii) of the Immigration and Nationality Act ("INA") defines a P-2 nonimmigrant as an alien

having a foreign residence which the alien has no intention of abandoning'' who:

  1. performs as an artist or entertainer, individually or as part of a group , and

  2. seeks to enter the United States temporarily and solely for the purpose of performing as such an artist or entertainer or with such a group under a reciprocal exchange program which is between an organization or organizations in the United States and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers.

The P-2 category is given to artists, individual entertainers and entertainment groups seeking to enter the United States to perform under a P-2 reciprocal exchange program. The P-2 category does not require that the artist or entertainer have attained any particular level of prominence or even experience and it can be given to either individual artists or groups.

To qualify, the alien must be either an artist or an entertainer with skills comparable to those of the U.S. entertainer participating in the exchange. The exchange of artists or entertainers shall be similar in terms of caliber of artists or entertainers, terms and conditions of employment, such as length of employment, and numbers of artists or entertainers involved in the exchange. However, this requirement does not preclude an individual for group exchange.

Essential Support Aliens

The INS regulations permit essential support aliens to be admitted in the same classification as the principal alien. The term "essential support alien" is defined at 8 CFR §214.2(p)(3) as a highly skilled, essential person determined by the Director to be an integral part of the performance of a P-1, P-2, or P-3 alien because he or she performs support services which cannot be readily performed by a United States worker and which are essential to the successful performance of services by the P-1, P-2, alien. Such alien must have appropriate qualifications to perform the services, critical knowledge of the specific services to be performed, and experience in providing such support to the P-1, P-2, or P-3 alien.

Labor Consultations

As in the case of P-1 aliens, no P-2 petition will be approved by the INS unless a consultation with the appropriate labor organization has been conducted. However, P-2 consultations for artists or entertainers under reciprocal exchange programs only need to comment on whether the exchange program is viable and bona fide, and whether it meets the other rules, such as similarity in terms and conditions of employment for both sides. The P-2 consultation is not required to judge the qualifications of the alien artists or entertainers involved. As in the case of P-1 petitions, a letter of no objection may also be submitted by the labor organization in lieu of an advisory opinion.

Petition Requirements

As no minimum level of expertise is required, a petition does not have to establish that a P-2 alien is involved in a leading role, has achieved international recognition, or is involved in a program that has a distinguished reputation. The alien must be merely be an artist or entertainer with skills comparable to those of the U.S. entertainer participating in the exchange.

When considering a P-2 petition, the Immigration and Naturalization Service ("INS") will focus on whether the proposed admission is part of a genuine reciprocal program. The terms and conditions of the exchange should be the same for both U.S. and foreign participants. The artists or entertainers who will take part in the exchange should be of similar caliber, the proposed length of employment should be equivalent, and a similar number of individuals should be involved on both sides of the exchange. However, individual-for-group exchanges are permitted.

Currently, Actors Equity (performers in live theatre) runs two P-2 programs with its Canadian and U.K. affiliates. The American Federation of Musicians also has a P-2 program with its Canadian affiliate.

A petition for P-2 classification must be accompanied by:

  1. a copy of the formal reciprocal exchange agreement between the U.S. organization or organizations which sponsor the aliens and an organization or organizations in a foreign country which will receive the U.S. artist or entertainers;

  2. a statement from the sponsoring organization describing the reciprocal exchange of U.S. artists or entertainers as it relates to the specific petition for which P-2 classification is being sought;

  3. evidence that an appropriate labor organization in the United States was involved in negotiating, or has concurred with, the reciprocal exchange of U.S. and foreign artists or entertainers; and

  4. evidence that the aliens for whom P-2 classification is being sought and the U.S. artists or entertainers subject to the reciprocal exchange agreement are artists or entertainers with comparable skills, and that the terms and conditions of employment are similar.

Duration of Status

An approved petition for an artist or entertainer under P-2 status shall be valid for a period of time necessary to complete the event, activity, or performance for which the P-2 alien is admitted, not to exceed 1 year. Petitions for essential support personnel to P-2 aliens shall be valid for a period of time necessary to complete the event, activity, or performance for which the P-2 is admitted, not to exceed 1 year. An extension of stay may be authorized in increments of 1 year for P-2 aliens in reciprocal exchange programs, and their essential support personnel, to continue or complete the same event or activity for which they were admitted.

The Immigration Regulations define the terms, "competition, event, or performance" as follows:

an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such an activity could include short vacations, promotional appearances for the petitioning employer relating to the competition, event, or performance, and stopovers which are incidental and/or related to the activity. An athletic competition or entertainment event could include an entire season of performances. A group of related activities will also be considered an event.

A P-2 event may be the duration of a reciprocal exchange agreement.

Dual Intent for P-2 Aliens

Although the statute appears not to recognize dual intent, the regulations indicate otherwise. INA §101(a)(15)(P) defines a P non-immigrant as an alien having a foreign residence which the alien has no intention of abandoning . This ordinarily means that the doctrine of dual intent is inapplicable to the category. However, the regulations clearly indicate that the approval of a permanent labor certification or the filing of a preference petition for the alien shall not be a basis for denying a P petition (excluding essential support personnel). So long as the alien maintains an unabandoned foreign residence, it appears as though dual intent is recognized. Please refer to the article on dual intent for additional information.

Strike Breaker Provisions

As in the O-1 category, "strike-breaker" provisions apply to the P category. If the Secretary of Labor certifies that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation at the place where the beneficiary is to be employed and that the employment of the beneficiary would adversely affect the wages, and working conditions of U.S. citizens or lawful permanent residents, a P petition will not be approved.

Liability of Employer for Return Transportation

Should the employment of an alien who entered under P status terminate, for reasons other than voluntary resignation, the employer and the petitioner (if different) are jointly and severally liable for the reasonable cost of return transportation for the alien to his or her last place of residence. However, as in the case of O-1 aliens, where the alien entered the United States under a different category and subsequently adjusted status to P, this provision will not apply.

Dependents of P-2 Aliens (P-4)

Dependant spouses and children of P-2 aliens are eligible for P-4 status. They may accompany or follow to join the principal alien. P-4 aliens may not accept employment without an independent nonimmigrant classification permitting employment or another independent basis for employment authorization.


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