MATTER OF SKIRBALL CULTURAL CENTER: USCIS Dabbles in the Arts
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MATTER OF SKIRBALL CULTURAL CENTER:
USCIS Dabbles in the Arts
acceptance and acclaim for their artistic creations in the U.S. is
By Lorne M. Fienberg itself an imprimatur of their work on the global stage.
The adjudication of cases involving artists and their sponsors
It would be difficult to imagine an agency of the United States
occurs at the intersection of government bureaucracy and debates
government that is called upon more frequently in the routine course
about what is art and what comprises a culture that runs from Plato
of its business to opine on matters upon which it has no expertise
to the present. And all of this is done in apparent obliviousness that
than U.S. Citizenship and Immigration Service (“USCIS” or “the
the debates even exist. What is the role of USCIS in deciding which
Service”). As the guardians (and on occasion, the bouncers) at “the
international artists will find audiences in the United States? This
golden door,” USCIS examiners make the issuance of nonimmigrant
article will analyze a recent precedent decision in this area, Matter of
visas and grants of legal permanent residence to individuals hinging
Skirball Cultural Center2, a case in which the Administrative Appeals
upon distinctions such as:
Office of USCIS (“AAO”)3 undertakes an intellectually demanding
those who possess “extraordinary ability,” “exceptional ability,” or investigation of what constitutes “culturally unique” performance
those who are merely “outstanding”; for purposes of the issuance of a P-3 nonimmigrant visa—and gets
it right.
those foreign nationals who have achieved “distinction” and those
who have “sustained national or international acclaim” and those What is Art; who is an Artist?
who are “among the small percentage of individuals that have risen As a starting point, the regulations acknowledge that “artists” are
to the very top of their field.”1 different from practitioners in other fields of endeavor. The “extraor‑
dinary ability” standard for the issuance of O-1A visas provides:
In fields as diverse as business, science, education and athletics,
USCIS examiners render decisions with seeming certitude about Extraordinary ability in the field of science, education, business,
merit, making minute distinctions among degrees of excellence. or athletics means a level of expertise indicating that the person is
But in no field are the determinations so confounding as in the ad‑ one of the small percentage who have risen to the very top of the
judication of cases involving the approval of artists, performers and field of endeavor.4
entertainers under the nonimmigrant O-1B, P-1 and P-3 categories. When we turn to the O-1B classification, “extraordinary ability” in
These nonimmigrant categories are of special importance to the the arts means something different:
climate for the arts in the United States, because they determine
which artists will have an opportunity to display their work, to go Extraordinary ability in the field of arts means distinction.
on tour, and to provide Americans with a window into diverse lives Distinction means a high level of achievement in the field of arts
and cultures from around the world, while retaining their own evidenced by a degree of skill and recognition substantially above
countries of residence. that ordinarily encountered to the extent that a person described as
prominent is renowned, leading, or well-known in the field of arts. 5
While most (but not all) are seeking remuneration for their talents, Immigration practitioners generally view the standard to be ap‑
artists or those who engage them to present or perform, and who plied to artists in the O-1B classification as lower than the standard
are petitioning in these categories, are acknowledging that critical
30 New Hampshire Bar Journal Fall 2014
to be applied to other extraordinary individuals. For that reason, the
determination of who is an artist, and thus gets to have this standard
applied to him or her, can be a matter of critical importance. More
about this in a moment. But in the race to embrace the lower stan‑
dard, practitioners do not inquire why “artists” as a group merit an
easier path. It might be thought that gifted scientists, educators and
business people have more substantial contributions to make to the
public welfare than painters and poets. It may be appropriate to view
the standard for O-1B artists more as a deliberate recognition of the
“contingencies of value”6 in the arts. In other words, there are no
fixed standards of excellence to be applied in the arts. That said, there
is clearly a qualitative difference between requiring an individual to
be demonstrably “one of the small percentage who have risen to the
very top of the field of endeavor,” and (merely) requiring him or her
to exhibit “a degree of skill and recognition substantially above that
ordinarily encountered. . . .” The Regulations invite Service examin‑
ers to avoid the steep path that leads to the “very top” in favor of a
more comfortable determination that a particular artist’s gifts are well
above average. It is an intrepid examiner who endeavors to quantify
extraordinary ability in the arts through rigorous application of criteria
set forth in the Regulations.
With this differential/lower standard, the question of “who is an
artist?” or what categories of talented individuals may be entitled to
be judged by this standard has become a matter of great creativity on
its own. What can we make of the assistance provided by the Code of
Federal Regulations, which defines the “arts” as follows:
Arts includes any field of creative activity or endeavor such as,
but not limited to, fine arts, visual arts, culinary arts, and per‑ USCIS embraces an aesthetic that is encapsulated
forming arts. Aliens engaged in the field of arts include not only in the Latin adage: de gustibus non est disputandum,
the principal creators and performers but other essential persons
such as, but not limited to, Directors, set designers, lighting design‑ or in matters of taste there can be no disputes.10 If
ers, sound designers, choreographers, choreologists, conductors, the regulatory criteria are met, USCIS wisely never
orchestrators, coaches, arrangers, musical supervisors, costume inquires why some people would (or should) prefer a
designers, makeup artists, flight masters, stage technicians, and
animal trainers. 7 (emphases added) classically-trained flamenco guitarist to a death metal
musician, or a ballet dancer to a pole dancer, or a
Individuals across a wide spectrum of human endeavor would Shakespearean actor to a motivational speaker.
insist that once the “arts” are defined to include “any field of creative
activity or endeavor,” then the jig is up already. Is there a category arts in mind when it admitted “flight masters” and “animal trainers”
of “doing” in the world that can’t be viewed as “creative”? But the to the list of qualifying professions, immigration practitioners are
regulation goes on to explain itself by providing examples of “arts,” clearly being invited to find art in unusual places. With this invitation
although these “include but [are] not limited to “fine arts, visual arts, in mind, the presenters at a 2014 webinar sponsored by the American
culinary arts, and performing arts.” At the risk of offending some art Immigration Lawyers Association (“AILA”) vied with each other to
lovers, it could be acknowledged that one of these arts is not like the produce the most outlandish inclusions to the list of “alternative
others.8 Notwithstanding the fascinating analogies between cooking occupations” that they had qualified in the O-1B classification, in‑
and painting for instance, or between a challenging recipe and the cluding: hairstylist; handbag designer; bodyguard; death metal/deaf
score for Mahler’s 6th Symphony, one could surmise that the drafters of metal guitarist; quilter; pole dancer; gospel church leader; Japanese
the regulation were going for an expansive view of the arts. But then knife sharpener; motivational speaker.9 In opening the gates in this
the doors swing wide open. Not only principal creators and performers manner, USCIS embraces an aesthetic that is encapsulated in the Latin
in the vast realm of creative endeavor but “other essential persons” adage: de gustibus non est disputandum, or in matters of taste there
may qualify as “artists.” can be no disputes.10 If the regulatory criteria are met, USCIS wisely
And while the regulation had certain conventional performing never inquires why some people would (or should) prefer a classically-
Fall 2014 New Hampshire Bar Journal 31 
trained flamenco guitarist to a death metal musician, or a ballet ties created by the Regulations. 8 C.F.R. § 214.2(p)(6)(i) presents the
dancer to a pole dancer, or a Shakespearean actor to a motivational familiar pattern of expanding the available options for permissible
speaker.11 By adopting an expansive interpretation of what the “arts” activity by stating that P-3 may be accorded to artists or entertainers
are, the Service acknowledges that the arts and artists are special. All “for the purpose of developing, interpreting, representing, coaching,
the while, the process articulates criteria to create the appearance of or teaching,” without mentioning artistic performance or presentation
objective adjudicative standards that militate against the contingency until it gets tacked on at the end of the sub-section. In the meantime,
that permeates the definitions themselves. the provision states that the presentation may be “unique or tradi‑
tional,” suggesting, at least syntactically, that the qualifying artistic
Matter of Skirball Cultural Center performance may be “unique” or “traditional,” and that there is
What happens, then, in the adjudicatory process in a nonim‑ a distinction to be made between the two. Certainly, the language
migrant visa category where the status of beneficiaries as “artists” is suggests that a performance need not be “traditional” in a historical
accepted as a given, but the law requires something additional in order or formal sense to qualify as unique. This prompts an attentive im‑
for them to qualify for admission. The P-3 is a category that calls for migration/art theorist to wonder what form of art can possibly exist
something more and poses a fascinating test for Service adjudicators. distinct from some context, historic or artistic. In other words, were the
Section 101(a)(15)(P)(iii) of the Immigration and Nationality drafters of the Statute and the Regulations chasing a phantom from
Act governing the issuance of P-3 visas provides for classification of the start? Namely, are we saying there can be no such thing as art, or
an alien having a foreign residence that the alien has no intention of the performance of art that is culturally unique? But the difficulty
abandoning who: doesn’t end there; subsection B then takes the important critical leap
by saying that the performance or cultural event “must further the
(I) performs as an artist or entertainer, individually or as part of a understanding or development of [the artist’s] art form.” Here we have
group, or is an integral part of the performance of such a group, and possibly the oldest distinction in all of literary theory between art that
delights and art that instructs.15 Are we to understand that P-3 status
(II) seeks to enter the United States temporarily and solely to per‑ may be denied to an artist who merely delights and entertains an
form, teach or coach as such an artist or entertainer or with such audience?
a group under a commercial or noncommercial program that is In other ways, the drafters can’t master the concept: “Culturally
culturally unique . . . . unique means a style of artistic expression, methodology, or medium
which is unique . . . . “ thus creating a circumlocution that effectively
The corresponding Regulation further provides: negates the word “unique.” To be sure, the explanation continues:
(A) A P-3 classification may be accorded to artists or entertainers, “unique to a particular country, nation, society, class, ethnicity,
individually or as a group, coming to the United States for the purpose religion, tribe, or other group of persons.” The section struggles
of developing, interpreting, representing, coaching, or teaching a to identify meaningful categories, but by adding “or other group of
unique or traditional ethnic, folk, cultural, musical, theatrical, persons,” it gives up the battle.
or artistic performance or presentation. It would be difficult to imagine why the government functionary
charged with adjudicating this particular case at the California Service
(B) The artist or entertainer must be coming to the United States to Center wished to launch into waters that were bound to be troubled.
participate in a cultural event or events which will further the un- The petitioner is a widely recognized, major cultural institution; the
derstanding or development of his or her art form. The program beneficiaries are themselves a much-travelled and highly-praised
may be of a commercial or noncommercial nature.12 ensemble performing music that is both appealing and, for all of the
director’s difficulties with concepts of genre, highly recognizable.16
The decision in Matter of Skirball notes: “Congress did not define The AAO decision sets out the procedural history and the facts in
the term ‘culturally unique,’ leaving construction of that term to the the case, as well as the argument presented by the Skirball Cultural
expertise of the agency charged with adjudicating P-3 nonimmigrant Center for classifying the beneficiaries, a musical ensemble called
visa petitions. By regulation, the Immigration and Naturalization Orquesta Kef, as culturally unique:
Service (now U.S. Citizenship and Immigration Services (“USCIS”)),
In a letter dated September 26, 2009, the petitioner described the
defined the term at 8 C.F.R. § 214.2(p)(3) (2012): “Culturally unique
beneficiary group and its musical style as follows: “This ensemble
means a style of artistic expression, methodology, or medium which is
is composed of seven musicians from Argentina, who have been
unique to a particular country, nation, society, class, ethnicity, religion,
performing together between 4 to 8 years and whose music blends
tribe, or other group of persons.”13 It is not clear whether the reference
klezmer (Jewish music of Eastern Europe) with [L]atin and South
to the “expertise of the agency” was intended ironically. We will return
American influences.” The petitioner also included a short biography
to “culturally unique” momentarily, but it is apparent that Congress
of the group, which indicates that the ensemble plays “traditional,
and the drafters of the Regulations cannot resist rushing in where art
classical and contemporary Jewish songs” and “brings together the
critics and theorists fear to tread.14
emotion, passion and spirit of Jewish music.” The biography indicates
Before turning to Matter of Skirball, let’s examine the ambigui‑
32 New Hampshire Bar Journal Fall 2014Orquesta Kef, whose visas to enter and perform in the United States were the subject of Matter of Skirball Cultural Center, is an ensemble
from Argentina whose music blends klezmer (Jewish music of Eastern Europe) with Latin American influences. The P-3 non-immigrant
visas sought on their behalf require that the artistic expression of the beneficiaries is “culturally unique.” Photo courtesy of Orquesta Kef.
that the band developed “its own and unique musical style” that is rock band. ).” But you have to sympathize with any examiner who
“based on the millenary force of tradition and the powerful emotion actually tried to apply the characterizations in the advocacy letter to
of the Jewish culture, mixed in with Latin American sounds.” the standard lexicon of musical forms and conventions. The opinion
doesn’t indicate whether the Service was provided with audio-visual
Even allowing for the hyperbolic stock-in-trade of successful immigra‑ evidence. Fortunately, we have YouTube, which has become a staple
tion practitioners, this is flamboyant advocacy. With the critical stan‑ of this type of case in the five years since the initial filing in Matter of
dard well in sight, the Skirball Center’s letter describes the ensemble’s Skirball Cultural Center.17
music as both a historical (“traditional, classical and contemporary”) The Regulation requires the petitioner to establish that the ben‑
and an emotional compendium (bringing together “emotion, pas‑ eficiaries’ performance is culturally unique through the submission
sion and spirit”). If this were not sufficient, the petitioner adds to the of affidavits, testimonials, or letters, or through published reviews of
admixture “the millenary force of tradition,” “the powerful emotion the beneficiaries’ work.18 The support letter from Professor Josh Kun
of Jewish culture” and “Latin American sounds.” The opinion of the of the University of Southern California, Annenberg School of Com‑
AAO eventually faults the Service Center for characterizing Orquesta munication addresses the issue of cultural uniqueness head-on and
Kef as a “rock and roll” band: “Although the Director highlighted sows the seeds of discord about Orquesta Kef’s qualifications:
references to “rock and roll” and other external influences on the This band’s uniqueness lies in their ability to fuse cultures, to
beneficiaries’ music. . . . there is nothing in the record to suggest that use music to meld diverse elements from their native Argentine
the beneficiary group is recognized in any circle as a mainstream culture with the multiple musical traditions of Eastern Europe.
Fall 2014 New Hampshire Bar Journal 33 As South Americans born to immigrant Eastern European parents, nation, society, class, ethnicity, religion or tribe,” that is doesn’t partake
they use their music to explore their mixed identities and re-visit of the influence, tonalities and rhythms, or share motifs or structures
the musical traditions and heritages of their parents[’] families. As with the arts of some other “particular country. . . .” When we refer to
Argentineans, they also draw on many influences of the folkloric jazz or the Broadway musical as “unique American art forms” do we
music of their own country which they then incorporate into a mean that they do not draw on the art forms of any other country or
variety of klezmer forms. . . . culture outside of the United States?
We have noted that the director’s denial failed to identify the
Klezmer music is often seen as the music of a specific ethnic group beneficiary group as a klezmer band and struggled to identify the
of people. Yet while it originates in Eastern Europe, it is a music nature of the group’s musical performance. This left the decision to
[of] change and transformation and has migrated to different deny hanging upon a rather glib discussion of the group’s musical
parts of the world through the Jewish Diaspora. By mixing with the influences in a review of the group’s 2004 album, “Musica Judia” by
cultures and influences of the hosting countries where it lands, the Ari Davidow for a niche website called “The KlezmerShack.”23 Davidow
music is continually re-imagined in new forms. The Argentine characterizes the band’s music as “modern Yeshivish” and admires
Jewish music of [the beneficiaries] is a great example of these travels how it has “absorbed. . . the rhythmic simplicity and excitement of
and combinations. As leading exponents and innovators of South rock and roll.” What exactly is this genre, he asks
American klezmer, [the beneficiary group] is has [sic] rightfully What makes Yeshivish different from “American post-revival
been acclaimed as one of the world’s most interesting and important klezmer?” To me, the beat is somewhat different - more rock-in‑
ensembles working within the new styles of klezmer music. (all fluenced as different from the jazz riffs that are part of most American
emphases added)19 klezmer drumming. The musicians do a lot more singing, as well,
in a lovely transformation of table nigun onto the dance floor. The
There is a pattern that informs the group’s “uniqueness”: their “ability song repertoire is also very different (there are some totally odd
to fuse cultures”; using music “to meld diverse elements”; “multiple cowboy Americanisms pulled into one of the dance medlies [sic],
musical traditions”; “mixed identities”; and “many influences of the “Yippie Ai Ai Ai” here), with little or no Yiddish theatre music - here,
folkloric.” As with all klezmer music, “it is a music [of] change and there is only the medley from Fiddler on the Roof (“Shermix”).
transformation.” By mixing with the cultures and influences of the There are many more older Israeli dance songs such as “Mayim”
hosting countries where it lands, the music is continually re-imagined and “Tzena Tzena” mixed in with a delightful spread of music
in new forms. 20 The approach taken by this letter and by the other from modern Orthodox [stars] . . . .
testimonials effectively dooms the petition in the eyes of the examiner.
In her decision, the director acknowledged and included quota‑ In the case of Orquesta Kef, there are also occasional hints of a North
tions from all of the submitted expert opinion letters and published African legacy (starting with the band name: Arabic or Judeo-Arabic
materials, and reached the following conclusion: for “Simkha Orchestra”) as on the Middle Eastern-tinged version
The evidence repeatedly suggests that the group performs a hybrid of “Eliahu Hanavi”, the “Keferino Leolam” medley, or “Iabanat
or fusion style of music, incorporating musical styles from other Skandaría”. It’s like listening to a combination of a modern Ameri‑
cultures and regions. A hybrid or fusion style of music cannot be can haredi wedding band merged with classic Israeli bands such
considered culturally unique to one particular country, nation, as “Tzlilei Ha-Kerem”.24
society, class, ethnicity, religion, tribe, or other group of persons.
The beneficiaries’ performance does not evince a style of artistic Reviewer Davidow is showing off, delightfully, for lovers of klezmer
expression, methodology, or medium which is considered unique music, but for the Service examiner, there are too many influences,
to a particular country, nation, society, class, ethnicity, tribe or other too many acknowledgements of styles, genres and world cultures for
group of persons. The performances must be demonstrated to the fusion of these to qualify as “culturally unique.” On November
be socially or regionally different or distinct and the evidence of 10, 2009, the Director of the California Service Center recommended
record does not support that (emphasis added).21 denial of the petition.25
The decision of the AAO flips both the decision and its aesthetic on
The director doesn’t simply find here that Orquesta Kef’s music is not their heads. The first part is easy: “Upon review, the director’s reasoning
“culturally unique.” The interesting point here is the audacity with is not supported by the record.”26 But what is again most striking is the
which the examiner launches on a fundamental aesthetic pronounce‑ AAO’s entry into the debate about art and culture. After repeating the
ment: “A hybrid or fusion style of music cannot be considered definition in the Regulations of “’culturally unique’ as a style of artistic
culturally unique to one particular country, nation, society, class, expression, methodology, or medium which is unique to a particular
ethnicity, religion, tribe, or other group of persons.” 22 There is no country, nation, society, class, ethnicity, religion, tribe or other group
legal source or artistic theory that justifies this opinion. One grasps for of persons,” the AAO states that it “can find no justification for the
examples, but it is impossible to imagine a form of musical expression Director’s exclusion from the definition of a distinct artistic expression
that is so hermetically sealed in the culture of “one particular country, that is derived from a hybrid or fusion of artistic styles or tradi-
34 New Hampshire Bar Journal Fall 2014tions from more than one culture or region.”27 The AAO decision identifiable group of persons with a distinct culture.
then offers a lesson on the nature of world cultures that is suitable for
college-level courses in the arts, and for immigration officers charged . . . . the regulation at 8 C.F.R. § 214.2(p)(6)(ii)(A) specifically
with an understanding of the backgrounds of international artists permits the petitioner to submit affidavits, testimonials, or letters
seeking to present their creations in the United States: from recognized experts attesting to the group’s performance of a
the fact that the regulatory definition allows its application to an culturally unique art form. USCIS may reject an expert opinion
unspecified “group of persons” makes allowances for beneficiaries letter, or give it less weight, if it is not in accord with other infor-
whose unique artistic expression crosses regional, ethnic, or other mation in the record or if it is in any way questionable. Matter
boundaries. While a style of artistic expression must be exclusive to of Caron Int’l, Inc., 19 I&N Dec. 791, 795 (Comm’r 1988).30
an identifiable people or territory to qualify under the regulations,
the idea of “culture” is not static and must allow for adaptation The implication here is that the failure to examine the expert testimony
or transformation over time and across geographic boundar- “for relevance, probative value and credibility” marked a deficiency
ies. The term “group of persons” gives the regulatory definition a in the Service determination that superseded its questionable theory
great deal of flexibility and allows for the emergence of distinct of culture:
subcultures. (emphases added)28 In the present matter, the Director did not question the credentials
of the experts, take issue with their knowledge of the group’s
Where the Service Center director based her denial on a rigid and musical skills, or otherwise find reason to doubt the veracity of
static view of the migration of people and their cultures, the AAO their testimony. The AAO finds the uncontroverted testimony to
decision defines artistic expression in the context of a dynamic view be reliable, relevant, and probative as to the specific facts in issue.
of time and space—“adaptation or transformation over time and Accordingly, the expert testimony satisfies the evidentiary require‑
across geographic boundaries.”—and the “emergence of distinct ment at 8 C.F.R. § 214.2(p)(6)(ii)(A).
subcultures.” Surely, this is the position we want an enlightened Im‑
migration Service to be applying in all of its adjudications. The AAO As Matter of Skirball Cultural Center opens the door for artists
decision goes on to school the Service Center director in the embrace working in new genres and in non-traditional forms created by fusing
of diverse and complex cultures: the styles and influences of their precursors, so the decision raises a
The AAO finds the expert opinion of Professor Kun particularly provocative new question: Who is a critic? Who are the “recognized
persuasive, because he explains that klezmer music, while often experts” whose education, taste and aesthetic discernment qualify them
associated with ethnically Jewish people, is an artistic form that has to pass judgment on the admission of artists into the U.S.? The AAO
migrated and is continually mixed with and influenced by other and the courts have not yet seen the case where a denial arose out of
cultures. He also explains how the beneficiaries, as South Americans a Service determination that an expert lacked the requisite expertise
born to Eastern European immigrants, came to be influenced by both to make an informed critical judgment. As our cultures in the U.S.
cultures to create something new and unique to their experience.29 become more complex, the thirst for criticism, analysis, and opinion,
in newspapers, magazines, books, exhibition brochures and catalogues,
Art Criticism: The Testimony of Experts television and radio, on web sites, and in blogs and social networks
of all types, appears unquenchable. The adage, “everyone’s a critic”
Of what significance, finally, are the decision and the theory
represents a new challenge, not only in cases involving distinction in
of cultural uniqueness in Matter of Skirball Cultural Center to
the arts, but in every case where the testimony of experts is relied upon
international artists and performers who are seeking audiences and
to supplement the expertise of the Immigration Service.
critical validation in the United States? Certainly, Matter of Skirball
expands the opportunities for artists to establish that their work meets
the specific criteria for the issuance of P-3 visas. But more than this, ABOUT THE AUTHOR
the AAO decision indirectly offers a precedent for the Service to take a Lorne M. Fienberg has been practicing im-
more expansive view of what it means to achieve “distinction” in the migration law for more than two decades.
arts and, more fundamentally, who is an artist. He maintains a solo practice where he fo-
However, the AAO’s decision may have even more far-reaching cuses on foreign nationals of extraordinary
consequences in immigration determinations for other professionals ability. His clients have included watercolor-
seeking admission to the U.S. Matter of Skirball reinforces the estab‑ ists and marimba players, inventors and
lished standard of proof in all immigration cases and the importance entrepreneurs, fashion designers and hair
of the use of the testimony of experts in meeting that standard: stylists. A longtime member of the Bar Journal
Of course, the petitioner bears the burden of establishing by a Editorial Advisory Board, this Arts & the Law
preponderance of the evidence that the beneficiaries’ artistic ex‑ issue is the second theme issue he has overseen for the Bar Jour‑
pression, while drawing from diverse influences, is unique to an nal.
Fall 2014 New Hampshire Bar Journal 35 ENDNOTES (3) Evidence that the alien has performed, and will perform, in a lead, starring,
or critical role for organizations and establishments that have a distinguished reputation
1 See 8 C.F.R. 214.2(o). evidenced by articles in newspapers, trade journals, publications, or testimonials;
2 25 I & N Dec. 799 (AAO 2012) (4) Evidence that the alien has a record of major commercial or critically acclaimed
3 Petitioners and applicants for certain categories of immigration benefits may appeal a successes as evidenced by such indicators as title, rating, standing in the field, box office
negative decision to the AAO. The AAO conducts administrative review of those appeals to receipts, motion pictures or television ratings, and other occupational achievements reported
ensure consistency and accuracy in the interpretation of immigration law and policy. Under in trade journals, major newspapers, or other publications;
authority that the Secretary of the Department of Homeland Security (DHS) has delegated to (5) Evidence that the alien has received significant recognition for achievements
USCIS, the AAO exercises appellate jurisdiction over approximately 50 different immigration from organizations, critics, government agencies, or other recognized experts in the field in
case types. Not every type of denied immigration benefit request may be appealed, and some which the alien is engaged. Such testimonials must be in a form which clearly indicates the
appeals fall under the jurisdiction of the Board of Immigration Appeals (BIA), part of the U.S. author’s authority, expertise, and knowledge of the alien’s achievements; or
Department of Justice.
(6) Evidence that the alien has either commanded a high salary or will command a
The AAO generally issues “non-precedent” decisions, which apply existing law and policy high salary or other substantial remuneration for services in relation to others in the field, as
to the facts of a given case. After review by the Attorney General, however, the AAO may evidenced by contracts or other reliable evidence; or
also issue “precedent” decisions to provide clear and uniform guidance to adjudicators and
the public on the proper interpretation of law and policy. Matter of Skirball Cultural Center is (C) If the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the
one of only three such “precedent” decisions handed down since 1998. “This decision was beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish
originally entered on December 19, 2009. The matter has been reopened on U.S.Citizenship the beneficiary’s eligibility.
and Immigration Services’ own motion for the limited purpose of making editorial revisions 12 8 C.F.R. § 214.2(p)(6)(i)
consistent with the designation of this decision as precedent.” (799) See also 8 CFR 103.3(c). 13 Matter of Skirball, p. 800
For a discussion of the AAO’s formation and jurisdiction, see a series of blogposts by At-
torney Matt Cameron, “This Whole Court is Out of Order! Why the AAO has no reason to 14 Cf. Pope, Alexander. An Essay on Criticism (1709)
live, and why it matters,” at: http://www.mattcameronlaw.com/2009/06/this-whole-court-is- 15 There are innumerable sources for didactic theories of art, including Horace’s Ars
out-of-order-why-the-aao-has-no-reason-to-live-and-why-it-matters/Default.htm ; and “This Poetica and Pope’s “An Essay on Criticism.” Meanwhile, in his essay, The Poetic Principle,”
Whole Court is Not Entirely Out of Order: How the AAO has Improved and Why it Matters” Edgar Allan Poe disparages “the heresy of the didactic.”
at http://www.mattcameronlaw.com/2010/10/this-whole-court-is-not-entirely-out-of-order- 16 The Skirball Cultural Center is one of the world’s most dynamic Jewish cultural institu-
how-the-aao-has-improved-and-why-it-matters/Default.htm. Attorney Cameron bases his tions, and among the leading cultural venues in Los Angeles. Its mission is to explore the
more optimistic view on the role played by by Chief Perry J. Rhew, who is the author of the connections between four thousand years of Jewish heritage and the vitality of American
decision in Matter of Skirball. democratic ideals. More than 600,000 people visit the Skirball each year to view exhibitions,
4 8 C.F.R. 214.2(o) attend music programs, participate in meeting and conferences or partake in a life-cycle
5 Yet a third standard of extraordinary achievement applies to individuals involved in event such as a baby naming, wedding, or memorial service. The Skirball’s school program
motion picture and television productions: “a very high level of accomplishment in the mo- serves more than 80,000 children and teachers annually from public, private, and parochial
tion picture or television industry evidenced by a degree of skill and recognition significantly schools.
above that ordinarily encountered . . . .” No legislative record explains the rationale for the 17 See, e.g., https://www.youtube.com/watch?v=_iIFPcmQ27g https://www.youtube.
jump from “extraordinary ability” to “extraordinary achievement” with respect to this specific com/watch?v=8ExGEGZ0ndM&list=RD_iIFPcmQ27g&index=2 https://www.youtube.com/
class of individuals. watch?v=htF0DPsy6oA&list=RD_iIFPcmQ27g&index=3.
6 See Smith, Barbara Herrnstein. Contingencies of Value. Cambridge, Mass.: Harvard It is doubtful that any of these videos would have been dispositive of the question of Orquesta
University Press, 1988; and Scandalous Knowledge: Science Truth and the Human, Durham, Kef’s cultural uniqueness. However, the Band’s music and performance certainly becomes
NC, Duke University Press 2006. more understandable and accessible in this format.
7 8 C.F.R. 214.2(o)(3)(ii) 18 8 C.F.R. § 214.2(p)(6)(ii)
8 The lyrics to the song, “One Of These Things (is Not Like The Others)” are generally 19 Matter of Skirball, 802-03.
attributed to Joe Raposo, Jon Stone and Bruce Hart (with apologies to Big Bird). It was originally 20 Another support letter from Dr. F. John Herbert, Executive Director of Legion Arts,
released on The Sesame Street Book & Record - Original Cast (1970) Columbia Records. Los Angeles,
9 “Making it Art: O-1B Visas for People You May Not Have Considered,” AILA Web
Seminar, March 18, 2014. My co-presenters were: Attorney Ally Bolour, Los Angeles, CA; describes the group as “outstanding representatives of the cultural traditions of Jewish Argen-
and Attorney Linda Rose, Nashville, TN. tina, possessing a sound that’s absolutely distinctive, accompanied by a recognized ability to
fuse diverse social and artistic influences.” Id. at 803. And a third letter from Leigh Ann Hahn,
10 This proposition is explicated and refuted in the domain of economic theory in: Stigler, Director of Programming and Associate Director of Grand Performances in Los Angeles,
George J. and Becker, Gary S., “De Gustibus non est Disputandem,” The American Economic praises the group’s “unique sound and ability to seamlessly fuse cultural influences.” Id. at 803.
Review, Vol 67, No. 2, March 1977.
21 Matter of Skirball, 804.
11 The Regulations at 8 CFR 214.2(o)(3)(iv) provide the following evidentiary criteria
for an O-1 alien of extraordinary ability in the arts. To qualify as an alien of extraordinary 22 Music purveyors from Amoeba to Amazon have long recognized an array of musical
ability in the field of arts, the alien must be recognized as being prominent in his or her field forms or genres whose uniqueness is defined by the fusion of genres: jazz fusion; jazz-rock
of endeavor as demonstrated by the following: fusion; tribal fusion bellydance; jazz blues fusion; global fusion; trance fusion; Asian fusion;
soul fusion; Indian world music fusion; spice fusion; pulp fusion; Bollywood fusion.
(A) Evidence that the alien has been nominated for, or has been the recipient of,
significant national or international awards or prizes in the particular field such as an Academy 23 Matter of Skirball, 804. See also: http://www.klezmershack.com/bands/kef/judia/ .
Award, an Emmy, a Grammy, or a Director’s Guild Award; or 24 Ibid.
(B) At least three of the following forms of documentation: 25 Matter of Skirball, 800.
(1) Evidence that the alien has performed, and will perform, services as a lead 26 Id. at 804.
or starring participant in productions or events which have a distinguished reputation as 27 Id at 804-805.
evidenced by critical reviews, advertisements, publicity releases, publications contracts, or
28 Id. at 805.
endorsements;
29 Ibid.
(2) Evidence that the alien has achieved national or international recognition for
achievements evidenced by critical reviews or other published materials by or about the 30 Id. at 805-806.
individual in major newspapers, trade journals, magazines, or other publications;
36 New Hampshire Bar Journal Fall 2014You can also read
