UNCLASSIFIED (U)

9 FAM 402.15

International cultural exchange participants Q Visas

(CT:VISA-941; 09-17-2019)
(Office of Origin: CA/VO/L/R)

9 FAM 402.15-1 Statutory and Regulatory Authorities

9 FAM 402.15-1(A) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

INA 101(a)(15)(Q) (8 U.S.C. 1101(a)(15)(Q).

9 FAM 402.15-1(B) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

8 CFR 214.2(q); 22 CFR 41.57.

9 FAM 402.15-2 Overview

(CT:VISA-1; 11-18-2015)

The Q visa classification was created at INA 101(a)(15)(Q) by section 208 of the Immigration Act of 1990 (Public Law 101-649 of November 29, 1990) specifically for participants in international cultural exchange programs. The Attorney General was granted authority to approve cultural exchange programs for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien participants country of nationality. A Q alien must be the beneficiary of a petition approved by the Department of Homeland Security (DHS) prior to visa issuance.

9 FAM 402.15-3 Classification Symbols

(CT:VISA-1; 11-18-2015)

22 CFR 41.12 identifies the following Q visa classification symbols for international exchange visitors in accordance with INA 101(a)(15)(Q):

9 FAM 402.15-4 Requirements for Q Classification

(CT:VISA-941; 09-17-2019)

The four main elements for qualifying for Q nonimmigrant status are an:

(1) Eligible Petitioner (see 9 FAM 402.15-5 below);

(2) Approved International Cultural Exchange Program (see 9 FAM 402.15-6) below);

(3) Eligible participant (see 9 FAM 402.15-7 below); and

(4) Approved petition (see 9 FAM 402.15-8 below).

9 FAM 402.15-5 Eligibility of Petitioner

(CT:VISA-1; 11-18-2015

a. The petitioner must be either a qualified employer or its designated agent.

b. Qualified employer: A qualified employer is a U.S. or foreign firm, corporation, non-profit organization, or other legal entity including its U.S. branches, subsidiaries, affiliates, and franchises, which administers a designated international cultural exchange program. To establish eligibility as a qualified employer, an employer must:

(1) Have the ability to maintain an established international cultural exchange program;

(2) Have designated a qualified employee as a representative responsible for administering the program and serving as liaison with DHS;

(3) Currently be doing business (i.e., the regular, systematic, and continuous provision of goods and/or services, including lectures, seminars, and other types of cultural programs) in the United States (the employer must therefore have employees and not merely be an agent or office.) See 8 CFR 214.2(q)(1);

(4) Certify that the participant wages and working conditions are comparable to those accorded local domestic workers similarly employed; and

(5) Must have the financial ability to remunerate the participant.

c. Designated Agent: In order to qualify as a petitioner, a designated agent of the qualified employer must be:

(1) Employed by the qualified employer on a permanent basis in an executive or managerial capacity; and

(2) A U.S. citizen, an alien lawfully admitted for permanent residence, or an alien provided temporary residence under INA 210 or INA 245A. See 8 CFR 214.2(q)(1).

9 FAM 402.15-6 approved International Cultural Exchange Program

(CT:VISA-941; 09-17-2019)

The Department of Homeland Security (DHS) designates an international cultural exchange program through the Form I-129, Petition for a Nonimmigrant Worker, process. (See 9 FAM 402.15-8 below.) The program must meet the following requirements:

(1) The culture sharing must take place in a school, museum, business, or other establishment where the 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 which take place in a private home or an isolated business setting to which the public does not have direct access do not qualify;

(2) The program must have a cultural component which is an essential and integral part of the participants employment or training. It must be designed, on the whole, to exhibit or explain the attitude, customs, history, heritage, philosophy, traditions, and/or other cultural attributes (arts, literature, language) of the aliens country of nationality. Structured instructional activities, such as courses or lecture series, addressing the above subjects, are deemed acceptable cultural components; and

(3) The alien participants employment or training in the United States may not be independent of the cultural component of the international cultural exchange program. It must serve as the vehicle to achieve the objectives of the cultural component of the program. The sharing of the culture of the Q nonimmigrants country of nationality must result from his or her employment or training with the qualified employer in the United States.

9 FAM 402.15-7 Eligibility of Participants

(CT:VISA-941; 09-17-2019)

a. Participant Requirements: Participants in Q cultural exchange programs must meet the following requirements:

(1) The alien must be at least 18 years of age at the time the petition is filed;

(2) The alien must be qualified to perform the service or labor or receive the training stated in the petition;

(3) The alien must have the ability to communicate effectively about the cultural attributes of his or her country of nationality with the American public; and

(4) If the alien has previously spent 15 months in the United States as a Q nonimmigrant, then he or she must have resided and been physically present outside the United States for the immediate prior year. (See 9 FAM 402.15-12 below.)

b. Country of Aliens Nationality: The country of nationality is the country of which the alien was a national at the time he or she applied for status as an international cultural exchange visitor.

9 FAM 402.15-8 DHS Petition Adjudications

9 FAM 402.15-8(A) DHS Responsible for Adjudicating Q Petitions

(CT:VISA-941; 09-17-2019)

a. By mandating a preliminary petition, Congress placed responsibility and authority with the Department of Homeland Security (DHS) to determine whether the foreign international cultural exchange visitor meets the required qualifications for Q status.

b. You generally must not request the Department to provide status reports on petitions filed with the Department of Homeland Security (DHS), nor must you contact DHS directly for such reports. As an alternative, you may suggest that the applicant communicate with his or her petitioner. You should email VO/F if you receive a case with public relations significance.

9 FAM 402.15-8(B) Same Petition Used for Approval of Program and for Participants

(CT:VISA-941; 09-17-2019)

A qualified employer or its designated agent must file a Form I-129, Petition for a Nonimmigrant Worker, with the appropriate USCIS Service Center. This petition is filed for the dual purpose of obtaining approval of an international cultural exchange program and for conferring Q status on the programs alien participants. The petition for Q nonimmigrants will be considered only if the employers concurrent petition for the approval of the international cultural exchange program is granted. Subsequent to the approval of the initial petition, the qualified employer must file a new petition each time the employer wishes to bring in additional international cultural exchange visitors.

9 FAM 402.15-8(C) Multiple Beneficiaries

(CT:VISA-941; 09-17-2019)

The petitioner may include more than one beneficiary on the petition. The petitioner must provide the date of birth, nationality, education, title and job description for each alien along with a certification that he or she can perform the work. See 8 CFR 212.2(q)(4). If an employer wishes to employ additional Q-1 aliens other than those specified on the original petition, a new petition must be filed.

9 FAM 402.15-8(D) Substituting Beneficiaries

(CT:VISA-941; 09-17-2019)

a. A qualified employer may replace or substitute participants on a previously approved petition for the remainder of the program. The substituting participant(s) must meet the qualification requirements described in 9 FAM 402.15-7 above.

b. Substitution Requests for Participants Already in the United States: In order to be eligible for substitution through consular processing, the original worker must not have been admitted into the United States on their issued Q visa. In cases where the petitioner wishes to substitute a participant who was already admitted into the United States, they must file an amended I-129 petition with USCIS.

c. Substitution Requests for Participants Who Have Not Entered the United States: To substitute a participant who has not been admitted into the United States, the petitioner must provide written notification to the consular section. This notification must name the participants being replaced and state the name, date of birth, country of nationality, level of education, and position title of each prospective participant and must certify that he or she is qualified to fill the position described in the approved petition. The petitioner must also indicate the aliens wages and certify that the alien is being offered prevailing wages and working conditions.

d. If the request to substitute one participant for another is approved, the consular officer must both revoke the issued visa in the NIV system and physically cancel the visa foil of the substituted participant. This will ensure that the total number of beneficiaries issued under the approved I-129 will not exceed the maximum number approved by USCIS.

e. In cases where a participant who was issued a Q visa was subsequently denied admission into the United States in Q status, that participant may be substituted at the request of the petitioner per the guidance listed above (paragraphs c and d), provided that the replacement participant is not already in the United States.

9 FAM 402.15-8(E) Services in More Than One Location

(CT:VISA-941; 09-17-2019)

The beneficiary may engage in employment or training in different locations for the same employer. In such a case, the petition must include an itinerary with the dates and locations of the services, labor, or training to be performed.

9 FAM 402.15-8(F) Services for More Than One Employer

(CT:VISA-941; 09-17-2019)

The employee may provide services or labor for, or receive training from, more than one employer. Each employer must file a separate petition with the jurisdictional DHS Service Center. An alien may work or train part-time for multiple employers provided that each employer has an approved petition for the alien. For the issuance of a single visa to the beneficiary of more than one Q petition see 9 FAM 402.15-10(E) below.

9 FAM 402.15-8(G) Change of Employers

(CT:VISA-941; 09-17-2019)

If a Q nonimmigrant in the United States seeks to change employers, the new employer must file a petition. The total period of time the Q nonimmigrant may stay in the United States remains limited to 15 months. (See 9 FAM 402.15-9 below.)

9 FAM 402.15-9 Validity of Approved Petition and Length of Stay

(CT:VISA-941; 09-17-2019)

a. Petition Validity: An approved petition for an alien classified under INA 101(a)(15)(Q) is valid for the length of the approved program or for 15 months, whichever is shorter.

b. Length of Stay: A beneficiary may be admitted to the United States during the validity period of the petition. The aliens total period of stay in the United States in Q-1 visa status may not exceed 15 months.

c. Extension of Stay: The authorized stay of an alien in Q status may be extended by DHS, up to the 15-month limit. However, a new petition must be filed and approved for each extension.

9 FAM 402.15-10 Issuing Q Visas

9 FAM 402.15-10(A) Residence Abroad

(CT:VISA-941; 09-17-2019)

A Q nonimmigrant must establish to your satisfaction that he or she has a residence outside the United States which he or she has no intention of abandoning. Q visa applicants are subject to INA 214(b).

9 FAM 402.15-10(B) Evidence Forming Basis for Q Visa Issuance

(CT:VISA-941; 09-17-2019)

a. The basis for Q visa eligibility consists of an approved Form I-129, Petition for a Nonimmigrant Worker, which must be verified through PIMS before issuing a visa. The Form I-797 is no longer required to be presented to you at the time of the applicants interview.

b. Before issuing a visa, posts must verify that the petition has been approved. Posts must first use the electronic PIMS record created by the KCC to verify petition approval. Posts are able to access the details of approved nonimmigrant visa (NIV) petitions using the PIMS Petition Report in the Consular Consolidated Database (CCD), under the Nonimmigrant Visa tab. If no record of the petition is found in PIMS, you may use the Person Centric Query Service (PCQS), via the CCD, to verify that the petition has been approved. If post finds a petition approval in PCQS that is not in PIMS, then post should send an email to PIMS@state.gov as follows: Petition with Receipt Number <Insert Number> was found in PCQS but not in PIMS. KCCs Fraud Prevention Unit (FPU) will research approval of the petition and, if able to confirm its approval, will make the details available through the CCD within two working days.

c. When presented at post, an approved Form I-129, Petition for a Nonimmigrant Worker, and a Form I-797, Notice of Action, may be used as sufficient proof to schedule an appointment, but posts should not review these forms for purposes of Q visa issuance. Only PIMS or PCQS must provide the evidence forming the basis for Q visa issuance.

9 FAM 402.15-10(C) Effect of an Approved Petition on Visa Adjudication

(CT:VISA-941; 09-17-2019)

a. An approved petition is considered prima facie evidence that the requirements for visa classification, which are examined by a USCIS adjudicator during the petition process, have been met.  However, the approval of a petition by USCIS does not relieve the alien of the burden of establishing visa eligibility. While the majority of petitions are valid, you should confirm that the facts in the petition are true during the visa interview. Remember that USCIS interacts solely with the petitioner; the interview is the first point during the petition-based visa process where a USG representative has the opportunity to interact with the beneficiary of the petition. Additionally, consular officers overseas benefit from cultural and local knowledge that adjudicators at USCIS do not possess, making it easier to spot exaggerations or misrepresentation in qualifications.

b. You must suspend action on an aliens application and submit a report to the approving DHS office if you know or have reason to believe that an alien applying for a visa under INA 101(a)(15)(Q) is not entitled to the classification as approved. For more information on returning a Q petition to USCIS for reconsideration and revocation see 9 FAM 601.13.

9 FAM 402.15-10(D) Validity of Q Visas

(CT:VISA-941; 09-17-2019)

a. The validity of a Q visa may not exceed the validity period of the petition approved to accord or extend Q status. If the period of reciprocity shown in Visa Reciprocity and Country Documents Finder is less than the validity period of the approved petition or extension of stay, it shall prevail.

b. You are authorized to accept applications and issue visas to qualified applicants up to 90 days in advance of applicants beginning of employment status as noted on the approved petition. You must inform applicants verbally and in writing that they can only use the visa to apply for entry to the United States starting ten days prior to the beginning of the approved status period noted on their approved petition, In addition, such visas must be annotated, Not valid until (ten days prior to the petition validity date.)

9 FAM 402.15-10(E) Issuing Single Q Visa Based on More Than One Petition

(CT:VISA-941; 09-17-2019)

If the alien is the beneficiary of two or more Q petitions and does not plan to depart from the United States between engagements, you may issue a single Q visa valid until the expiration date of the last expiring petition, reciprocity permitting. The required annotations (see 9 FAM 402.15-10(H) below) from all petitions must be placed on the visa.

9 FAM 402.15-10(F) Limitation of Q Visas

(CT:VISA-941; 09-17-2019)

You may restrict visa validity in some cases to less than the period of validity of the approved petition or authorized period of stay (for example, on the basis of reciprocity or the terms of an order waiving a ground of ineligibility). In any such case, in addition to the annotations described in 9 FAM 402.15-10(H) below, you must insert the following:

PETITION VALID/STAY AUTHORIZED (whichever is applicable) TO (date)

9 FAM 402.15-10(G) Reissuing Q Visas

(CT:VISA-941; 09-17-2019)

When a Q visa is limited by reciprocity to a period of validity less than the validity of the petition or authorized period of stay, you may reissue the visa any number of times within the period allowable. If the Visa Reciprocity and Country Documents Finder prescribes a fee, you must collect the fee for each reissuance of the Q visa.

9 FAM 402.15-10(H) Annotating Q Visas

(CT:VISA-941; 09-17-2019)

You must annotate the number of the aliens approved petition on the visa, followed by the name and location of the aliens employer.

9 FAM 402.15-11 Dependents of International Cultural Exchange Visitors are Classifiable B-2

(CT:VISA-941; 09-17-2019)

INA 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 Limitation on Readmission

(CT:VISA-941; 09-17-2019)

An alien who has spent 15 months in the United States under INA 101(a)(15)(Q) may not be issued a visa or be readmitted under the Q classification, nor may a Q petition be approved for the alien, unless he or she has resided and been physically present outside the United States for the immediate prior year. Brief trips to the United States for business or pleasure during the immediate prior year do not break the continuity of the one-year foreign residence, but do not count toward the fulfillment of that requirement.

9 FAM 402.15-13 Other Employment Restricted

(CT:VISA-941; 09-17-2019)

Q aliens may be employed only by the petitioner or petitioners through which he or she attained Q status. Employment outside the specific program described in the approved petition(s) is in violation of the aliens Q nonimmigrant status.

 

 

 

 

 

 

UNCLASSIFIED (U)