Q Visa for Cultural Exchanges - An Underutilized Tool

This long article describes the United States Q Visa for cultural exchange programs and participants. It contains citations and links to statutes and regulations. It also includes several summaries and examples from recent Q visa appeal decisions. I hope it is a useful resource.

I.   Introduction to the Q Visa

The Q visa is a relatively obscure and underutilized work visa classification. Sometimes called the "Disney Visa," the Q visa allows petitioners to seek United States Citizenship and Immigration Services (USCIS) approval for certain cultural exchange programs and to employ qualified foreign nationals on a temporary basis - up to 15 months - to work in these programs. 

The U.S. Immigration Reform and Control Act (IRCA) establishes the Q classification for: 

[A]n alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily (for a period not to exceed 15 months) to the United States as a participant in an international cultural exchange program approved by the Secretary of Homeland Security for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien’s nationality and who will be employed under the same wages and working conditions as domestic workers[.] 

8 United States Code (U.S.C.) § 1101(a)(15)(Q).

Statistics indicate that this visa is relatively seldom used. USCIS issued a total of just 1,997 Q visas in 2018 and had a total workload number of 2,228 Q visas. Compare that with the 179,660 H-1B visas issued during the same period. 231 Q visas were refused and 164 were waived or overcome. Worldwide NIV Workload by Visa Category FY 2018, U.S. Department of State. USCIS approval rates for Q visas in 2018 are therefore approximately 83.5%.

Individuals cannot self-petition for a Q visa. See 8 Code of Federal Regulations (C.F.R.) § 214.2(q)(5)(i)(requiring a U.S. employer to submit any petition for a Q visa); see also USCIS Website ("Only employers who administer cultural exchange programs are allowed to petition for Q nonimmigrants."). This means an employer, often through counsel, must petition for a Q visa on behalf of a qualified worker for a qualifying cultural exchange program. See e.g., USCIS Form G-28.

The Q visa can be an especially great option for public entities, local districts, and non-profit organizations that either have or want to establish bona fide cultural programs. These types of organizations tend to be particularly well-suited to fulfill this visa's requirements.

Private employers may also establish cultural exchange programs and petition for Q visas on behalf of participants. However, employers and attorneys must carefully consider whether a proposed cultural exchange is truly worthy of a Q visa. See e.g., Matter of T- LLC, ID# 29592 (Administrative Appeals Office (AAO) Dec. 5, 2016)("any restaurant featuring a specific foreign cuisine involves some measure of cultural exchange, but [...] the Petitioner is primarily engaged in the business of food service, with any Spanish cultural exchange being peripheral to its primary purpose.")

The remainder of this article addresses the substantive qualification criteria for Q classification cultural exchange programs and participants and provides other practical information about the Q visa.

II.     Q Visa Program Requirements

To obtain approval from USCIS for a Q visa cultural exchange program, a petition must establish four elements: (A) a cultural component, (B) a work component, (C) public accessibility of the program, and (D) a properly administered program. See, 8 C.F.R. § 214.2(q)(3) and 8 C.F.R. § 214.2(q)(4)(i). These elements are described below.

A.   The Culture Component

The cultural component is the first element of a Q visa cultural exchange program. An exchange program's cultural component must be an essential and integral part of the visa beneficiary's employment or training. The regulations describe the cultural component as follows:

The international cultural exchange program must have a cultural component which is an essential and integral part of the international cultural exchange visitor's employment or training. The cultural component must be designed, on the whole, to exhibit or explain the attitude, customs, history, heritage, philosophy, or traditions of the international cultural exchange visitor's country of nationality. A cultural component may include structured instructional activities such as seminars, courses, lecture series, or language camps. 

8 C.F.R. § 214.2(q)(3)(iii)(B).

The most recent AAO decision addressing a Q visa is Matter of P-, ID# 315974 (AAO May 25, 2017). This substantive opinion provides a useful analysis of relevant Q visa standards, including the cultural component.

Matter of P- arose out of a Q visa petition filed on behalf of a Chinese immersion regional public charter school in Massachusetts. The petitioner's operations were based on a philosophy "that through early and sustained immersion in the Chinese language with culture integrated throughout, students will achieve high academic attainment, be highly proficient in two languages [,] and develop sensitivity and tolerance for other cultures." Id. at p. 3. The petition included a job description, lesson plans, and literature about the charter school, all of which indicated that program participants would be responsible for "providing instruction in Chinese and through Chinese literature, history, philosophy, gastronomy, and traditions-- in the core subjects of social studies, science, and math, as well as in art, music, health, and physical education." Id.

The USCIS Vermont Service Center initially denied the petition. The petitioner successfully appealed the denial to the AAO, which concluded that "[t]he Petitioner has established that its proposed program is eligible for designation as an international cultural exchange program[.]" Id. at p. 5.

Addressing the cultural component, the AAO explained how the school in Matter of P- had met its burden of proof:

The record contains a structured lesson plan as well as the Petitioner's annual report, establishing that the Beneficiary will introduce students to the holidays, cuisine, traditional arts and crafts, folk songs, and stories of her home country, in this instance China, and other aspects of her culture. The teachers also prepare family events of Eastern cultural significance open to the public throughout the school year. These materials substantiate the Petitioner's statement that its program "prioritizes cultural learning and infuses Chinese culture through [the] various school programs." The Petitioner has established that its program meets the cultural component. 

Id. at p. 4.

See also Matter of R-C-C-S-D-, ID# 17721 (AAO Jul. 18, 2016)(public school district in Delaware with more than 15,000 students in 32 schools successfully obtains Q program approval for Spanish immersion program).

However, other cases clarify that not all cultural programs will satisfy the cultural component requirement for the Q visa. In one such case, a Holocaust museum in Florida sought approval of a Q classification cultural exchange program. Matter of F-H-M-, ID# 17419 (AAO Jul. 21, 2016). According to the record in that case, the petitioner operated a museum designed to "collect, preserve and make available to the public the historical record and artistic and literary interpretation of the Holocaust and other genocides," and teach "the members of all races and cultures the inherent worth and dignity of human life in order to prevent future genocides." Id. at p. 3.

USCIS denied the petition and AAO affirmed the denial in part because the program did not strictly involve the exhibition or explanation of the participant's country of nationality. The AAO wrote:

The primary purpose of the Petitioner's program is, as stated by the Petitioner, to provide the public with the historical record and artistic and literary interpretation of the Holocaust and other genocides, and not to exhibit or explain the attitude, customs, history, heritage, philosophy or traditions of the participant's country of nationality.

Matter of F-H-M-, ID# 17419 (AAO Jul. 21, 2016) 

The outcome in Matter of F-H-M- seems harsh and the details of the case may indicate some strategic missteps on the petitioner's part. Nonetheless, the case is a stark example of how strictly USCIS construes the cultural component element of the Q visa.

B.   The Work Component

The second element of a Q visa is the work component. The work component requires that the Q visa holder's regular work or training be closely connected with the program's cultural component.

The international cultural exchange visitor's employment or training in the United States may not be independent of the cultural component of the international cultural exchange program. The work component must serve as the vehicle to achieve the objectives of the cultural component. The sharing of the culture of the international cultural exchange visitor's country of nationality must result from his or her employment or training with the qualified employer in the United States.

8 C.F.R. § 214.2(q)(3)(iii)(C)

The key parts here are (1) the work must serve as a vehicle to achieve the program's cultural objectives and (2) the program's cultural sharing must be a direct result of the beneficiary's work or training. The AAO also addressed the work component as it related to the Holocaust museum in the Matter of F-H-M-:

We concur with the Director's determination that the Petitioner has not shown that the Beneficiary's work serves as a "vehicle" to achieve the program's cultural objectives and that such objectives will "result from" his work. The evidence reflects that the Petitioner is seeking to employ the Beneficiary to organize and schedule the use of educational materials about the Holocaust and schedule tours of the museum. The submitted evidence does not establish that the Beneficiary's work will serve as a vehicle to transmit Austrian language, culture, customs, heritage, traditions, etc. to students and other museum visitors. 8 C.F.R. § 214.2(q)(3)(iii)(C). 

Matter of F-H-M-, ID# 17419 (AAO Jul. 21, 2016) at p. 6.

Several other recent cases related to culinary-related cultural exchange programs also address the work component. For example, the Matter of T- LLC, ID# 29592 (AAO Dec. 5, 2016) involved a Q visa petition for a business that operated "13 restaurants in the United States, each one expressing 'a unique international culinary tradition ranging from Spain, to Greece and the Mediterranean, to Mexico and China,' including ... Spanish cuisine restaurants." Id at p. 3. Noting a change in the program's employment location, USCIS issued a Notice of Intent to Revoke (NOIR) based on its conclusion that the program no longer qualified as a cultural exchange program. Id at p. 4.

The AAO upheld the revocation on appeal. The opinion in Matter of T- LLC specifically notes that "'[t]he beneficiary's work will be primarily independent of the cultural component of an international cultural exchange program,' conducting the cooking duties inherent at any restaurant employment." Id at p. 5. In other words, the AAO explained, "Petitioner is primarily engaged in the business of food service, with any Spanish cultural exchange being peripheral to its primary purpose." Id at p. 6.

The decision also evaluated the relative time allocation and structure of the beneficiary's cultural work, noting that those portions of his work would "account for a very small portion of the participant's time and occur outside of the participant's primary responsibilities as a chef" and that his "cultural interaction with customers would be limited to informal and unstructured cultural exchanges." Id at pp. 8-9.

There was a similar outcome in Matter of J- Corp., ID# 13937 (AAO Oct. 14, 2015). In that case the AAO ruled that "the primary purpose of the Petitioner's hiring of the Beneficiaries is to sell food items, and add to the authenticity of the experience of the Japanese food items it sells, rather than to provide a structured cultural exchange program." Id at p. 9.

In sum, the work component requires evidence that the beneficiary's work is intertwined with a program's cultural component.

C.     Accessible to the American Public

The third element of a Q qualifying cultural exchange program is accessibility to the American public.

The international cultural exchange program must take place in a school, museum, business or other establishment where the American public, or a segment of the public sharing a common cultural interest, is exposed to aspects of a foreign culture as part of a structured program. Activities that take place in a private home or an isolated business setting to which the American public, or a segment of the public sharing a common cultural interest, does not have direct access do not qualify. 

8 C.F.R. § 214.2(q)(3)(iii)(A).

The evidence must establish that the program will take place in a location the public can access. The regulation provides specific examples of sufficiently public locations (e.g., schools, museums, business, and other establishments where the public are exposed to cultural aspects) and insufficiently public locations (e.g., private homes and isolated business settings).

The AAO's handling of the public access issue in Matter of F-H-M- (the Holocaust museum case) provides a useful demonstration of how this element plays out in practice. Note the various ways in which the petitioner's well-structured program helps satisfy the elements of the Q visa: 

The regulation uses examples to set the limits of what is acceptable and unacceptable with respect to public access. As an example of sufficient public access, the regulation specifically mentions that the cultural exchange program may take place in a museum. 8 C.F.R. § 214.2(q)(3)(iii)(A). As examples of insufficient public access, the regulation cites "[a]ctivities that take place in a private home or an isolated business setting." Id. The Petitioner's program involves a level of public access that surpasses these negative examples. There is ample evidence to support a finding that the Petitioner's facility and educational programs are valuable and widely-used public resources across many segments of the community. The Petitioner has also established that its programs and accompanying public activities are well-organized, structured, and well-publicized within the surrounding metropolitan area. Based on the foregoing, we find that the Petitioner's program provides accessibility to the public, as required by 8 C.F.R. § 214.2(q)(3)(iii)(A). 

Matter of F-H-M-, ID# 17419 (AAO Jul. 21, 2016) at p. 3.

The cases interpreting the public accessibility element identify three factors that USCIS and the AAO weigh when determining whether a cultural exchange program is accessible to the public: (1) whether the program operates in a public location; (2) whether the program involves regular direct contact with the public; and (3) whether the program exposes the public to foreign culture in a structured manner.

          1.     Public Location

The public location factor is straightforward. USCIS weighs the evidence to determine whether a program's operations are carried out in a location that is sufficiently accessible to the public. For example, in Matter of P-, the AAO approved the petition where there was evidence (1) petitioner was a state-chartered school, (2) petitioner was a school that enrolled 450 students and served a region of 39 communities, (3) petitioner's programs were open to all students in the state through a lottery system, and (4) petitioner marketed itself to the general public as providing an opportunity to acquire cultural immersion.

Upon review, we conclude that the school-based program described in the instant petition is sufficiently accessible to the public. The record establishes that in 2007 the Massachusetts Department of Education granted the Petitioner a charter as the state's first foreign language immersion school to "offer a Chinese language and culture immersion program ... to develop student understanding of other cultures." The Petitioner enrolls approximately 450 students from kindergarten through eleventh grade and serves a region comprised of 39 communities. Its Chinese immersion program is open to all students in the state, with entrance established by lottery. The Petitioner clearly markets the school as providing a direct opportunity for the American public to acquire immersion in Chinese language and culture. 

Matter of P-, ID# 315974 (AAO May 25, 2017)(footnote omitted)

In other cases, the AAO has determined that private businesses may also be accessible to the general public. For example, the AAO found that the Spanish restaurant in Matter of T- LLC surpassed the negative examples found in the regulation:

The regulation uses examples to set the limits of what is acceptable and unacceptable with respect to public access. As an example of sufficient public access, the regulation specifically mentions that the cultural exchange program may take place in a business. As examples of insufficient public access, the regulation cites "[a]ctivities that take place in a private home or an isolated business setting." 8 C.F.R. § 214.2(q)(3)(iii)(A). The Petitioner's restaurant was designed to offer an authentic Spanish culinary experience and is marketed to the public as such. Therefore, we find that it surpasses these negative examples, and is not an "isolated business setting."

Matter of T- LLC, ID# 29592 (AAO Dec. 5, 2016)

          2.     Direct Contact with the Public

The second factor for weighing the public accessibility of a cultural exchange program is the nature and extent of the program's direct contact with the public.

This direct contact factor is similar to the work component element described above in that both standards involve measuring a connection with cultural work. However, where the work component element focuses on the connection between the beneficiary's work and the program's cultural component, the direct contact factor focuses on the cultural component's connection to the public. In other words, if a program's work does not directly involve the public, that raises questions about whether a program is truly accessible to the public.

Matter of P- (the Chinese immersion school case) contains a useful analysis of this issue:

The record reflects that the Beneficiary will not be coming to the United States solely to teach foreign language classes that are part of a school's traditional curriculum to a limited number of students enrolled in the classes. The record, which includes the Petitioner's annual report for the 2014- 2015 school year and information from its website, establishes that access to the school's cultural offerings is not limited to the enrolled students. Rather the Petitioner's teachers assist students to prepare cultural demonstrations for special assemblies and events which are open to the students' families and the community, such as annual winter and spring concerts, Chinese New Year celebrations, and year-end performances in Chinese of skits, songs, and debates. According to the annual report, the Petitioner's teachers also provide cultural lessons to the parents and students it hosts from other schools within its region of service. The Petitioner has established public access. 

Matter of P-, ID# 315974 (AAO May 25, 2017)(footnote omitted)

          3.     Structure of the Program

The third and final factor for measuring a cultural exchange program's public accessibility is the extent to which the program is structured. This factor is mandatory based on the regulation's language, which specifies that a program must involve the public being "exposed to aspects of a foreign culture as part of a structured program" 8 C.F.R. § 214.2(q)(3)(iii)(A)(emphasis added).

A number of cases have addressed this factor and, as expected, the greater the level of structure, the more likely it is that a program will pass muster with USCIS and/or the AAO. Matter of P- is a good example of a well-structured program that held up to appellate scrutiny: 

In addition to demonstrating public access, the Petitioner has established that the cultural exposure will take place "as part of a structured program." The Petitioner's annual report, mentioned above, describes how it conducts and evaluates its one-way language immersion program. The school's mission statement explains that its one-way language immersion model divides instruction between two classrooms, English and Chinese, with students' time divided between the two teachers depending upon their grade level, with a higher percentage of time in the Chinese classrooms in the early grades. Its curriculum is aligned with the standards of the Common Core/Massachusetts Curriculum Frameworks. The record contains curricular materials developed by the petitioning organization, detailing the learning objectives, and a lesson plan for a third grade unit on the Chinese New Year. We find the submitted documentation sufficient to establish that the program is implemented in a structured manner. 

Matter of P-, ID# 315974 (AAO May 25, 2017)

Compare this with the less formal structure of the Spanish restaurant in Matter of T:

While the participant may, at the above-mentioned structured activities engage guests, answer questions, and share some aspects of Spanish language or culture in order to ensure the authenticity of the dining experience, the evidence does not sufficiently establish that the Beneficiary would be sharing his culture with the American public as part of a structured program.

Matter of T- LLC, ID# 29592 (AAO Dec. 5, 2016) at p. 8.

The issue of a structured program was also addressed in a series of cases in the mid-2010's involving Q visa petitions for hospitality companies. These cases uniformly found that "casual and unstructured cultural exchanges" in a commercial setting did not meet the Q visa's requirement for a well-structured program through which the general public can be exposed to culture.

Daily interactions with hotel guests such as wearing a country-specific nametag or native dress, handing out a recipe or brochure, decorating the hotel's front desk, displaying flags and maps, or playing international music, are merely casual and unstructured cultural exchanges.

AAO Aug. 24, 2015 at p. 13; See also Matter of B-M-G-, ID# 17419 (AAO Mar. 29, 2016) at pp. 6-7. 

D.   Qualified Program Administration

In addition to the substantive requirements described above, the regulations also require petitioners to provide evidence demonstrating the administrative status of the program. 

To establish eligibility as a qualified employer, the petitioner must submit with the completed Form I-129 appropriate evidence that the employer:

(A) [Meets the substantive requirements for the Q classification];

(B) Has designated a qualified employee as a representative who will be responsible for administering the international cultural exchange program and who will serve as liaison with the Immigration and Naturalization Service;

(C) Is actively doing business in the United States;

(D) Will offer the alien(s) wages and working conditions comparable to those accorded local domestic workers similarly employed; and

(E) Has the financial ability to remunerate the participant(s)."

 8 C.F.R. § 214.2(q)(4)(i)

Each of these subelements require proof by credible evidence, all of which must accompany the petition at the time of filing. Matter of R-J-J-E- LLC, ID# 1061114 (AAO Mar. 13, 2018)("Eligibility ... must be established at the time of filing. See 8 C.F.R. § 103.2(b)(1), (12)."). A common shortcoming observed in reported AAO decisions is conclusory statements without supporting evidence. See e.g., AAO Jun. 23, 2009 ("Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci,  22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).").

Evidence of a program's administration need not be complicated or voluminous but it needs to be detailed and substantial. See e.g., Matter of B-M-G-, ID# 17419 (AAO Mar. 29, 2016) at p. 7 ("Petitioner did not establish that it is a qualified employer pursuant to 8 C.F.R. § 214.2(q)(4)(i), because it did not certify that it will offer the Beneficiaries wages comparable to local domestic workers, which implies a knowledge of the location of the employment. 8 C.F.R § 214.2(q)(4)(i)(D)"); See also, AAO Aug. 11, 2010 ("The decision of U.S. Citizenship and Immigration Services (USCIS) in a particular case is dependent upon the quality of the evidence submitted by the petitioner, not just the quantity of the evidence.").

VI.   Q Visa Participant Qualifications

In addition to the program-related criteria for USCIS approval of cultural exchange programs, each participant in the exchange (i.e., employee) must individually qualify for the Q visa. 

The petition must establish that the beneficiary:

(A) Is at least 18 years of age at the time the petition is filed;

(B) Is qualified to perform the service or labor or receive the type of training stated in the petition;

(C) Has the ability to communicate effectively about the cultural attributes of his or her country of nationality to the American public; and

(D) Has resided and been physically present outside of the United States for the immediate prior year, if he or she was previously admitted as an international cultural exchange visitor."

8 C.F.R. § 214.2(q)(3)(iv)

VII.   Duration

"An approved petition for an alien [on a Q visa] ... is valid for the length of the approved program or fifteen (15) months, whichever is shorter." 8 C.F.R. § 214.2(q)(7)(iii).

"A petition shall not be approved for an alien who has an aggregate of fifteen (15) months in the United States under [a Q visa], unless the alien has resided and been physically present outside the United States for the immediate prior year." 8 C.F.R. § 214.2(q)(7)(iv). In other words, a Q visa beneficiary can "reset" his or her 15 month limit by remaining physically present outside the United States for an entire year.

VIII.   Families of Q Visa Holders

"101(a)(15)(Q) does not provide derivative status for the spouse and children of international cultural exchange visitors. Therefore, a spouse, child, or other alien who wishes to accompany or follow to join a Q nonimmigrant must independently qualify for a different visa classification, such as B1/B2, if he or she is legally able to." 

9 FAM 402.15-12

IX.   Cost for Q Visa

The filing fee for a Q Visa Petition using Form I-129 is $460.

To expedite processing for a Q visa, petitioners may opt to file a Form I-907 (Premium Processing). The cost for expedited processing is $1,410.

Attorneys fees for a Q visa will depend on the case.