Matter of Skirball Cultural Center: Uscis Dabbles in the Arts
| Jurisdiction | United States,Federal |
| Citation | Vol. 55 No. 1 Pg. 0030 |
| Pages | 0030 |
| Publication year | 2014 |
Lome M. Fienberg, J.
It would be difficult to imagine an agency of the United States government that is called upon more frequently in the routine course of its business to opine on matters upon which it has no expertise than U.S. Citizenship and Immigration Service ("USCIS" or "the Service"). As the guardians (and on occasion, the bouncers) at "the golden door," USCIS examiners make the issuance of non immigrant visas and grants of legal permanent residence to individuals hinging upon distinctions such as:
those who possess "extraordinary ability," "exceptional ability," or those who are merely "outstanding";
those foreign nationals who have achieved "distinction" and those who have "sustained national or international acclaim'' and those who are "among the small percentage of individuals that have risen to the very top of their field."[1]
In fields as diverse as business, science, education and athletics, USCIS examiners render decisions with seeming certitude about merit, making minute distinctions among degrees of excellence. But in no field are the determinations so confounding as in the adjudication of cases involving the approval of artists, performers and entertainers under the nonimmigrant O-IB, P-l and P-3 categories. These non immigrant categories are of special importance to the climate for the arts in the United States, because they determine which artists will have an opportunity to display their work, to go on tour, and to provide Americans with a window into diverse lives and cultures from around the world, while retaining their own countries of residence.
While most (but not all) are seeking remuneration for their talents, artists or those who engage them to present or perform, and who are petitioning in these categories, are acknowledging that critical acceptance and acclaim for their artistic creations in the U.S. is itself an imprimatur of their work on the global stage.
The adjudication of cases involving artists and their sponsors occurs at the intersection of government bureaucracy and debates about what is art and what comprises a culture that runs from Plato to the present. And all of this is done in apparent obliviousness that the debates even exist. What is the role of USCIS in deciding which international artists will find audiences in the United States? This article will analyze a recent precedent decision in this area, Matter of Skirbatt Cultural Center[2], a case in which the Administrative Appeals Office of USCIS ("AAO")[3] undertakes an intellectually demanding investigation of what constitutes "culturally unique" performance for purposes of the issuance of a P-3 nonimmigrant visa—and gets it right.
What is Art; who is an Artist?
As a starting point, the regulations acknowledge that "artists" are different from practitioners in other fields of endeavor. The "extraordinary ability" standard for the issuance of O-IA visas provides:
Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor.[4]
When we turn to the O-IB classification, "extraordinary ability" in the arts means something different:
Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.[5]
Immigration practitioners generally view the standard to be applied to artists in the O-IB classification as lower than the standard t o 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 standard, 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-IB 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 examiners 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 performing arts. Aliens engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, Directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup aitists, flight masters, stage technicians, and animal trainers.[7](emphases added)
Individuals across a wide spectrum of human endeavor would 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 of "doing" in the world that can't be viewed as "creative"? But the regulation goes on to explain itself by providing examples of "arts," although these "include but [are] not limited to "fine arts, visual arts, culinary arts, and performing arts." At the risk of offending some art lovers, it could be acknowledged that one of these arts is not like the others.[8] Notwithstanding the fascinating analogies between cooking and painting for instance, or between a challenging recipe and the score for Mahler's 6th Symphony, one could surmise that the drafters of the regulation were going for an expansive view of the arts. But then the doors swing wide open. Not only principal creators and performers in the vast realm of creative endeavor but "other essential persons" may qualify as "artists."
And while the regulation had certain conventional performing arts in mind when it admitted "flight masters" and "animal trainers" to the list of qualifying professions, immigration practitioners are clearly being invited to find art in unusual places. With this invitation in mind, the presenters at a 2014 webinar sponsored by the American Immigration Lawyers Association ("AILA") vied with each other to produce the most outlandish inclusions to the list of "alternative occupations" that they had qualified in the O-IB classification, including: hairstylist; handbag designer; bodyguard; death metal/deaf metal guitarist; quilter; pole dancer; gospel church leader; Japanese knife sharpener; motivational speaker.[9]In opening the gates in this manner, USCIS embraces an aesthetic that is encapsulated in the Latin adage: degustibus non estdisputandum, or in matters of taste there can be no disputes.[10] If the regulatory criteria are met, USCIS wisely never inquires why some people would (or should) prefer a classically- t rained flamenco guitarist to a death metal musician, or a ballet dancer to a pole dancer, or a Shakespearean actor to a motivational speaker.[11] By adopting an expansive interpretation of what the "arts" are, the Service acknowledges that the arts and artists are special. All the while, the process articulates criteria to create the appearance of objective adjudicative standards that militate against the contingency that permeates the definitions themselves.
Matter of Skirball Cultural Center
What happens, then, in the adjudicatory process in a nonimmigrant visa category where the status of beneficiaries as "artists" is...
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