Fragomen on Immigration: Federal Court Criticizes USCIS's Narrow Interpretation of L-1B Visa Eligibility
November 20, 2014
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In a decision with potentially broad applicability to sponsoring employers, the U.S. Court of Appeals for the D.C. Circuit overturned USCIS’s denial of an L-1B visa petition and criticized the agency’s inconsistent adjudication of L-1B specialized knowledge cases.
In Fogo de Chao (Holdings) Inc. v. U.S. Department of Homeland Security, __ F. Supp.2d ___, 2014 WL 5327688 (D.D.C., Oct. 21, 2014), the D.C. Circuit reaffirmed longstanding agency guidance on the concept of specialized knowledge—guidance that, in recent years, had been minimized as U.S. Citizenship and Immigration Services took an increasingly narrow view of eligibility for the L-1B visa category.
The court neatly summarized the matter as follows:
From 1997 to 2006, the Department of Homeland Security granted Fogo de Chao over 200 L-1B visas for its churrasqueiros [Brazilian specialty gaucho chefs]. In 2010, Fogo de Chao sought to transfer another churrasqueiro chef, Rones Gasparetto, to the United States, reasoning that his distinctive cultural background and extensive experience cooking and serving meals in the churrasco style constitute ‘specialized knowledge.’ The Administrative Appeals Office within the Department of Homeland Security concluded, however, that Gasparetto’s cultural background, knowledge, and training could not, as a matter of law, constitute specialized knowledge. Unable to discern either (i) a sufficiently reasoned path in the Appeals Office’s strict bar against culturally based skills, or (ii) substantial evidence supporting its factual finding that Gasparetto did not complete the company training program, we reverse and remand the district court’s grant of summary judgment to the government.
The court forbade U.S. Citizenship and Immigration Services (USCIS) from treating certain types of knowledge (here, culturally-acquired knowledge) as categorically ineligible for treatment as specialized, and directed the agency to give consideration to the economic inconvenience an employer would experience if it were unable to transfer a foreign beneficiary to the United States.
It found that a long record of prior L-1B petition approvals could be relevant in current adjudications. Here, the restaurant had more than 200 previous L-1B approvals before this particular petition was denied.
The court also refused to accord Chevron deference to the USCIS L-1B regulations, finding that these regulations—and in particular the definition of specialized knowledge—simply restated, rather than interpreted, ambiguous statutory provisions.
The opinion also suggested that non-precedential decisions of USCIS’ Administrative Appeals Office may not warrant deference.
On the other hand, the court accorded great deference to internal agency memoranda which have provided additional guidance on the proper interpretation of “specialized knowledge,” especially a March 1994 memo from James Puleo, who was then the Acting Executive Associate Commissioner of the legacy Immigration and Naturalization Service.
The Immigration Act of 1990 (IMMACT) created the first statutory definition of “specialized knowledge” as “special knowledge in the company product and its application in international markets or an advanced level of knowledge of the processes and procedures of the company.” See INA § 214(c)(2)(B), 8 U.S.C. § 1184(c)(2)(B). The definition eliminated previous requirements that specialized knowledge be proprietary or that L-1B workers be “key” employees. The Puleo memo reemphasized IMMACT's more expansive definition and advised that the common dictionary definitions of the words “special” and “advanced” should be used in evaluating whether an individual possesses specialize knowledge. The memo also reminded adjudicators that an L-1B worker’s knowledge need only be advanced—not proprietary, nor unique, nor narrowly held within the organization.
The court also relied on a September 2004 memorandum by Fujie Ohata, then the Director of Service Center Operations for USCIS, which specifically addressed whether and when the skills of a chef or specialty cook would qualify as “specialized knowledge.” While Ohata focused on chefs or specialty cooks, her 2004 memo also reiterated the validity of the Puleo memo and summarized its test for "specialized knowledge" for all petitioners as follows:
The petitioner bears the burden of establishing through the submission of probative evidence that the alien’s knowledge of a product or process is (a) uncommon or not generally shared by practitioners in the alien’s field of endeavor; (b) not easily or rapidly acquired, but is gained from significant experience or in-house training, and (c) is necessary and relevant to the successful conduct of the employer’s operations.
The D.C. Circuit’s decision is a hopeful development for L-1B sponsoring employers, who in recent years have seen a surge in petition denials and significant unpredictability in the way USCIS adjudicators interpret the concept of specialized knowledge. It means that adjudicators may not easily disregard an employer’s past history of successful L-1B petition sponsorship or its economic need for specific L-1B beneficiaries. As a result of the decision, denials of L-1B petitions may be more amenable to court challenges.
Kudos to Carl Hampe in Fragomen’s Washington, D.C. office, who successfully litigated this case!
