By: Stella Park
In Fogo de Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec.,[1] the United States Court of Appeals for the D.C. Circuit recently overturned a district court decision denying Fogo de Chao’s L-1B visa petition for churrasqueiro (Brazilian-trained) chef, Rones Gasparetto. The district court upheld a determination by Vermont Service Center, an agency of United States Citizen and Immigration Service (USCIS), which found that Fogo de Chao failed to establish proof that Gasparetto met the “specialized knowledge” requirement in order to receive an L-1B visa.
After Congress amended the Immigration and Nationality Act in 1970, employees of multinational companies that have worked for the sponsoring company for a minimum of one year prior to filing the application “in a capacity that is managerial, executive, or involves specialized knowledge” could be eligible for a temporary nonimmigrant visa.[2] Since the amendment, there have been attempts at defining “specialized knowledge.” The most recent guidance was provided in a 2004 memo by the Director of Service Center Operations for USCIS, which noted that generally, chefs would not meet the requirement of having “specialized knowledge.”[3]
For close to a decade during the years of 1997 to 2006, Fogo de Chao was granted over 200 L-1B visas from the Department of Homeland Security for trained churrasqueiro chefs to come from Brazil and work at one of their many locations within the United States.[4] However, in 2010, a similar visa petition for Gasparetto was filed but denied, resulting in the complaint that was filed in this case. Fogo de Chao provided, among other documents, an affidavit from the CEO which included information about the company and the seventeen duties that churrasqueiro chefs are required to perform.[5] The affidavit asserted that there were duties that non-Brazilian employees could not learn within a reasonable time and six that “could not be taught at all no matter how much training was given.”[6] The petition was denied on the basis that Fogo de Chao was unable to demonstrate that chefs acquired specialized knowledge through the training program or that its procedures were different from other U.S. restaurants that have churrasqueiro chefs.[7]
Fogo de Chao claimed that the denial of their petition “was an abrupt and unexplained departure from prior agency practice granting such visas without the cultural-knowledge-free evidentiary demand imposed here.”[8] They challenged the legal interpretation made by the Appeals Office which made the conclusion that knowledge from cultural and personal upbringing would be classified as “general knowledge” rather than “specialized knowledge.”[9] The Court of Appeals for the D.C. Circuit noted that the Appeals Office failed to provide the reasoning behind their analysis of “why the statutory phrase ‘specialized knowledge’ would woodenly debar any and all knowledge acquired through one’s cultural traditions, upbringing, or ‘life experience.’”[10]
In addition, the Court did not agree with the Appeals Office’s finding that Gasparetto did not complete “the company’s internal 18- to 24-month churrasqueiro training program, which is a prerequisite before an employee may be considered for transfer to the United States.”[11] The Court highlighted the documentation that Fogo de Chao provided, including the sworn affidavit by Fogo de Chao’s C.E.O. concerning Gasparetto’s completion of the training program, Gasparetto’s curriculum vitae which includes information about his experience at Fogo de Chao, and a letter from a Brazilian nutritionist that claimed that Gasparetto “had the cultural background and restaurant skills necessary to fill that position.”[12]
The Court, finding error in the reasoning behind the Appeals Office’s “strict bar against culturally based skills” as well as the conclusion that Gasparetto failed to complete the training program, remanded the decision to the agency to make the appropriate determinations.[13]
Judge Kavanaugh, in the dissenting opinion, challenged Fogo de Chao’s assertion that non-Brazilian chefs are unable to acquire the skills of a churrasqueiro chef within a reasonable amount of time by noting that there was nothing in the record to support this claim. The dissent questioned whether the real issue behind this decision is “Fogo’s desire to cut labor costs masquerading as specialized knowledge.”[14]
It may seem that the majority opinion’s decision was a victory for Fogo de Chao as “it appears to soften [the] 2004 determination by the U.S. Citizenship and Immigration Services that foreign chefs ‘generally are not considered’ to have the specialized knowledge required to qualify for a U.S. worker visa.”[15] On a broader scale, this decision has the potential to make the U.S. more competitive in relation to other foreign countries that have stricter immigration regulations, and could be beneficial for “other occupations involving specialized knowledge” who are looking to transfer employees to the United States.[16] Multinational companies and workers applying for L-1B visas, pending the decision by the USCIS agency, might be able to prove specialized knowledge by demonstrating “[s]kills gained through certain cultural practices” and by citing potential economic hardship as a basis for their petitions.[17]
However, the dissent noted in the footnotes that the agency could reverse the majority’s efforts if it decides to adopt a clear rule that visa applicants with comparable status as the Fogo de Chao chefs would not meet the statutory requirement of specialized knowledge.[18] Thus, the fate of L-1B visa applicants lies in the USCIS agency’s upcoming decision.
[1] Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec. 2014 WL 5327688, at *1 (D.C. Cir. Oct. 21, 2014).
[2] Fogo De Chao, 2014 WL 5327688, at *3.
[3] Id. at *7.
[4] Id. at *2.
[5] Id. at *10.
[6] Id. at *11.
[7] Id.
[8] Id. at *30.
[9] Id. at *21.
[10] Id.
[11] Id. at *35.
[12] Id. at *36.
[13] Id. at *2.
[14] Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 2014 WL 5327688, at *4 (D.C. Cir. Oct. 21, 2014) (Kavanaugh, J., dissenting).
[15] Joe Palazzolo, Foreign Chefs Get Treat in Court’s Visa Ruling, Wall Street Journal, Oct. 21, 2014, https://online.wsj.com/articles/foreign-chefs-get-treat-in-courts-visa-ruling-1413934572.
[16] Cyrus D. Mehta, Fogo de Chao v. DHS: A Significant Decision for L-1B Specialized Foreign Chefs and Beyond, Insightful Immigr. Blog (Oct. 26, 2014, 7:08 PM), https://blog.cyrusmehta.com/2014/10/fogo-de-chao-v-dhs-significan-decision.html.
[17] Id.
[18] Fogo De Chao, 2014 WL 5327688, at *5 n.4.
