2. The ABC’s of Immigration Law: Q-1 International Exchange Visitors

What is a Q Visa?

A  Q visa is used by international cultural exchange visitors seeking to enter the US to participate in international cultural exchange programs.  The Q visa is a creation of the 1990 Immigration Act and many believe it was as a result of a strong push by the Disney company which uses the visa for its EPCOT park as well as other locations in the theme park.

Who can petition for Q visas?

Qualified employers include US or foreign firms, corporations, non-profit organizations, or other legal entities (including US branches, subsidiaries, affiliates and franchises) which administer an international cultural exchange program designated by USCIS.

How is a Q exchange program approved?

Just as J-1 exchange programs must be approved by the State Department, Q exchange programs must be approved by USCIS. However, the mechanism for obtaining this approval is simply for the program to provide documentation regarding the program accompanied by a petition for an initial Q-1 visa for at least one participant. The Q-1 visa application will only be approved if the Q program is approved. Q programs can submit additional I-129 petitions for exchange visitors not included in the initial petition.

For how long is a Q exchange program valid?

A Q international exchange program will be approved for the length of the program up to 15 months plus an additional 30 days to allow participants time to make travel arrangements.

What are the requirements for the Q-1 program?

Q programs must meet all of the following requirements:

1.      The program must be accessible to the public. That means it must take place in a school, museum, business or other place 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. Program activities are not to take place in private homes or isolated business settings not directly accessible to the public.

2.      The program must have a cultural component. The cultural component must be an essential and integral part of the 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 cultural visitor’s country of nationality. A cultural component may include seminars, courses, lecture series, or language camps. Performances and serving as exhibit guides and docents are other examples.

3.      The employment of the exchange visitor must not be independent of the cultural component of the international exchange program.

What documentation does a program application require?

Q program applications must contain the following documents:

1.      The employer maintains an established international cultural exchange program;

2.      The program has designated a qualified employee as a representative who will be responsible for administering the international cultural exchange program and who will serve as a liaison to USCIS;

3.      Proof the employer is actively doing business in the US. Doing business means the “regular, systematic, and continuous provision of goods and/or services (including lectures, seminars and other types of cultural programs) by a qualified employer which has employees, and does not include the mere presence of an agent or office of the qualifying employer”;

4.      Documentation that the program will offer the alien wages and working conditions comparable to those accorded to similarly employed domestic workers; and

5.      Evidence the employer has the financial ability to remunerate the participant.

6.      A certification by the employer that contains the following:

-          A list containing the date of birth, country of nationality, level of education, position title, and a brief job description for each international exchange visitor in the petition;

-          Verification and certification that the participants are qualified to perform the service or labor, or receive the type of training, described in the petition; and

-          A report of the visitors’ wages and certification that they are comparable to similarly employed domestic workers

How long can a person come in Q status?

Q-1 non-immigrants are admitted for the duration of the Q program or fifteen months, whichever is shorter.

What kinds of activities can a Q visa holder engage in while in the US?

A Q-1 non-immigrant can enter the US to participate in an approved Q program in order to engage in practical training, employment and the sharing of the history, culture and traditions of the country of the alien’s nationality.

Can a person who has previously had Q-1 status come back again as a Q-1 visitor?

Q-1s can be readmitted in Q-1 status if the individual has resided and been physically present outside the US for the immediate prior year.  Brief trips to the US do not break the continuity of the one year of foreign residency.

How does one apply for Q-1 non-immigrant status?

An initial Q-1 petition is filed using Form I-129 with the service center having jurisdiction over the state where the employment will take place.  Once the program and Q-1 classification are approved by USCIS, USCIS will notify the indicated consulate or port of entry where the Q-1 applicant will apply for a visa or admission to the US. The notice will include the name of the visitors, their classification and the petition’s period of validity. 

Is premium processing available?

As of the writing of the article, premium processing is available for Q-1 cases. Note, however, that USCIS occasionally adds or removes non-immigrant and immigrant categories from the list of premium processing-eligible cases.

Are substitutions permitted?

Substitution or replacements of participants in a Q program are permitted. To accomplish this, employers do not need to submit a new I-129 petition. The substituting visitor must meet the same qualification requirements as the Q-1 non-immigrant met in the initial petition. Employers can request the substitution or replacement by sending a letter to the consular officer at the consulate where the visa application will be submitted (or the port of entry for visa-exempt applicants). The letter must be accompanied by a copy of the program approval notice and it should also include the date of birth, country of nationality, level of education, and position title of each prospective Q-1 visitor. The letter should also certify that each Q-1 applicant is qualified to perform the service or labor or receive the type of training described in the approved petition. Finally, the letter should indicate each applicant’s wages and certify that the wages and working conditions are comparable to those provided similarly employed domestic workers.

What are the requirements for the Q-1 non-immigrant applicant?

A Q-1 applicant must be bona fide nonimmigrants who is

1.      At least 18 years old at the time the petition is filed;

2.      Is qualified to perform the service or labor or receive the type of training specified in the petition;

3.      Has the ability to communicate effectively about the cultural attributes of his or her country of nationality to the American public; and

4.      Has resided and been physically present outside of the US for the immediate prior year if the person previously had a Q-1 visa.

Does a Q-1 employer need to pay a required wage?

Q-1 employers must pay the exchange visitor wages and provide working conditions comparable to those accorded to domestic workers similarly employed in the geographical area of the alien’s employment. Employers certify this in their petitions.

Can a petitioner file for multiple applicants in the same petition package? What if only some of the applicants are approvable?

A Q program may include more than one participant in each Q petition. The petitioner must include the names, dates of birth, nationalities and other identifying information required on the petition for each participant. The petitioner also needs to indicate the US consulate or port of entry (if a visitor is visa-exempt) where a visitor will apply for a Q-1.

If some visitors are approved, but others are not approvable, USCIS may approve in part and deny in part.

Can Q-1 non-immigrants work at multiple locations?

Yes. However, the employer must provide an itinerary listing the dates and locations of the services, labor or training.

Can concurrent Q-1 petitions be filed on behalf of multiple employers?

Yes. If the exchange visitor will perform services or receive training from more than one employer, each employer may file a separate petition. Q-1 non-immigrants can work part-time for multiple employers as long as each employer has an approved petition for the individual.

Can Q-1 non-immigrants change employers? How does that affect their time they can be in Q-1 status?

Yes. Applicants can have a new employer file a new I-129 on their behalf. However, the total period of time the visitor can stay in the US is still limited to 15 months.

Does a Q-1 visa holder have to have a foreign residence?

Yes. International cultural exchange visitors must have a residence in a foreign country which they have no intention of abandoning.

Can spouses or children be admitted with the Q-1 visa holder?

There is no dependent provision for spouses and children, but they may be otherwise

admissible as visitors.

When can a Q-1 petition be revoked?

The approval of the Q-1 petition is automatically revoked if the employer goes out of business, files a written withdrawal of the petition or terminates the approved program prior to the expiration date. USCIS can revoke on notice if it finds that the visitor is no longer employed by the petitioner in the capacity specified in the petition or no longer receiving the specified training. USCIS can also revoke if it learns that there were incorrect representations made in the petition, the petitioner violated the terms and conditions of the petition or USCIS mistakenly approved the case.

What documentation does a Q-1 non-immigrant provide to demonstrate employment authorization for I-9 purposes?

While employers cannot specify which documents an employee must show to demonstrate employment authorization, note that Q-1s do not receive employment authorization documents and need only provide a valid I-94 to work. However, the I-94 must be for the specific sponsoring employer.