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P-3 Status for Culturally Unique Artists and Entertainers

Written by Henry J. Chang

Overview

Section 101(a)(15)(P)(iii) of the Immigration and Nationality Act ("INA") defines a P-3 nonimmigrant as and 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 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.

Artists and entertainers involved in culturally unique events may be admitted under P-3 status. The P-3 category contemplates unique art forms that may be less well known to the public because they do not ordinarily receive the widespread acclaim or recognition. Teachers and coaches are also eligible for P-3 status to encourage them to disseminate their knowledge. P-3 aliens may be admitted for either commercial or noncommercial performances.

A P-3 artist or entertainer must be coming to the U.S. primarily for a cultural event to further the understanding or development of that art form. 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."

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-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-3 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-3 alien.

Labor Consultations

As in the case of P-1 aliens, no P-3 petition will be approved by the INS unless a consultation with the appropriate labor organization has been conducted. Affirmative advisory opinions are supposed to evaluate the cultural uniqueness of the alien's skills, state whether the events are cultural in nature, and state whether the event or activity is appropriate for P-3 classification. However, 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

Section 214.2(p)(6)(ii) of the Immigration Regulations requires:

  1. affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the alien's or the 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

  2. documentation that the performance of the alien or group is culturally unique, as evidence by reviews in newspapers, journals, or other published materials.

In either case, the petition must also include evidence that all of the performances or presentations in the United States will be culturally unique events.

Duration of Status

An approved petition for an artist or entertainer under P-3 status shall be valid for a period of time necessary to complete the event, activity, or performance for which the P-3 alien is admitted, not to exceed 1 year. Petitions for essential support personnel to P-3 aliens shall be valid for a period of time necessary to complete the event, activity, or performance for which the P-3 is admitted, not to exceed 1 year. An extension of stay may be authorized in increments of 1 year for P-3 aliens in culturally unique 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.

Dual Intent for P-3 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-3 Aliens (P-4)

Dependant spouses and children of P-3 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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