Could Fogo De Chao Expand L-1B Eligibility?

A recent, mouth-watering federal appeals court decision in Washington, D. C. could influence expanded eligibility for L1B intra-company transfer visas, which require specialized knowledge for consideration by the government.

The case of Fogo De Chao (Holdings) Inc v. U.S. Department of Homeland Security, No. 13-5301 (D.C. Cir. Oct. 21, 2014) has seen the court strike down a U. S. Citizen and Immigration Services ruling that knowledge gained from “upbringing, family and cultural traditions, and overall assimilation to one’s native culture” should be considered general, rather than specialized knowledge. The debate over general versus specialized knowledge is rather central to cases involving an L1B, a non-immigrant visa program created in the 1970 Immigration and Nationality Act that enabled multi-national companies to transfer qualifying employees—executives, managers, and those with specialized knowledge—to the United States.

Fogo De Chao, it would appear, would be such a company built to thrive under the L1B program, and it did for a long time. A chain of Brazilian steakhouses operating restaurants in both Brazil and the United States, Fogo De Chao had transferred more than 200 employees on L1B visas between 1997 and 2006, specifically its churrasqueiros, the gaucho chefs trained in the culinary meat grilling traditions of their southern Brazilian homeland.  The 2010 case of Rones Gasparetto seemed to follow a similar protocol to Fogo’s previous modus operandi: the company would hire an aspiring churrasqueiro, already trained in the ways of southern Brazilian cowboy culinary culture, then train him in the formal ways for the restaurant.  After a year or two of working in one of the chain’s Brazilian operations, Fogo De Chao would apply for an L1B, transfer the chef to an American restaurant, and then have a professionally-trained employee with authentic cultural knowledge set to impart the business model to American employees.

With the 2010 application for Mr. Gasparetto, the company hit an L1B snag, posing a threat to Fogo De Chao’s pipeline of chef’s specializing in the preparation of specially-seasoned, barbecued meats.  While he had been working as a churrasqueiro chef, both for a Fogo De Chao-affiliated restaurant and others, USCIS called into question the evidence of his specialized knowledge.  The agency failed to draw the line between Mr. Gasparetto’s churassco heritage and his specialized knowledge of the company’s product, instead ruling that his expertise fell into a more general knowledge category ineligible for L1B consideration. The district court upheld the USCIS decision, deferring to the agency’s interpretation of specialized knowledge—a notion that has evolved many times since the establishment of the Immigration and Nationality Act under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, 959 F. Supp. 2d 32, 44–49 & n.5 (D.D.C. 2013).

Fogo De Chao, ultimately, found its lifeline in the appellate court decision just handed down. The appellate court overturned the district court’s decision to allow the agency deference to interpret its own ruling under the immigration statute under Chevron, reasoning that nothing in the statute precludes taking culturally acquired knowledge into consideration as specialized knowledge.  While the court went short of saying that USCIS had been inconsistent in its treatment of Fogo De Chao in the course of its dozens of L1B applications, it did say that the agency’s established policy and guidance surrounding the notion of specialized knowledge had not previously excluded cultural knowledge, as it had with Mr. Gasparetto, from consideration.

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