Federal Court Criticizes USCIS’s Narrow Interpretation of L-1B Visa Eligibility
February 1, 2015
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. Fragomen Partner Carl Hampe was lead counsel in the appeal.
In Fogo de Chao (Holdings) Inc. v. U.S. Department of Homeland Security, the D.C. Circuit reaffirmed longstanding agency guidance on the concept of specialized knowledge – guidance that, in recent years, had been minimized as USCIS took an increasingly narrow view of eligibility for the L-1B visa category.
The Court forbade USCIS from treating certain types of 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.
The Court refused to accord deference to the USCIS L-1B regulations, finding that these regulations – and in particular the definition of specialized knowledge – simply restated ambiguous statutory provisions. The opinion also suggested that non-precedential decisions of USCIS’s Administrative Appeals Office may not warrant deference.
What the Decision Means for Employers
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.
Fragomen will closely monitor the impact of the D.C. Circuit’s opinion on future L-1B adjudications and USCIS policy. If you have questions about the decision, please contact your designated Fragomen professional.
Explore more at Fragomen
Blog post
Associate Nabauia Safi outlines how Article 116 (2) restores German citizenship to descendants of those persecuted during the National Socialist dictatorship.
Awards
Awards
Fragomen’s Salt Lake City office is named one of Utah Business’s 2024 "Best Companies to Work For."
Blog post
Partner Hyla Kaplan Rosenberg and Senior Associate Elizabeth Brettschneider discuss the eligibility and application process for marriage-based green cards for foreign nationals married to US citizens.
Video
Neste Mobility Minute, a Sócia Diana Quintas explora a proposta de Visto Verde do Brasil.
Podcast
Senior Manager Lindiwe Mapota interviews Director Johannes Kgotso Tiba on the long-anticipated publication of the Points-Based Immigration System (PBIS).
Blog post
Senior Consultant Lauren Penny and Consultant Daniel Heymann discuss how Israel is leading the charge with AI and immigration.
Fragomen news
Partner Ryan Freel is elected to the Houston Relocation Professionals' Board of Directors for 2025.
Blog post
UK Government Affairs Strategy Lead Shuyeb Muquit dives into the UK's shifting net migration trends.
Blog post
Senior Immigration Consultant Konstantin Schmid shares what employers and workers need to know about 2025 Swiss immigration quotas.
Media mentions
Senior Manager Deirdre Murray discusses the recent legislative changes to Ireland’s employment permits.
Fragomen news
Fragomen's Gemma Hyslop, Andreia Florina Ghimis and Ana Sofia Walsh review ODI Global's new report.
Blog post
Associate Nabauia Safi outlines how Article 116 (2) restores German citizenship to descendants of those persecuted during the National Socialist dictatorship.
Awards
Awards
Fragomen’s Salt Lake City office is named one of Utah Business’s 2024 "Best Companies to Work For."
Blog post
Partner Hyla Kaplan Rosenberg and Senior Associate Elizabeth Brettschneider discuss the eligibility and application process for marriage-based green cards for foreign nationals married to US citizens.
Video
Neste Mobility Minute, a Sócia Diana Quintas explora a proposta de Visto Verde do Brasil.
Podcast
Senior Manager Lindiwe Mapota interviews Director Johannes Kgotso Tiba on the long-anticipated publication of the Points-Based Immigration System (PBIS).
Blog post
Senior Consultant Lauren Penny and Consultant Daniel Heymann discuss how Israel is leading the charge with AI and immigration.
Fragomen news
Partner Ryan Freel is elected to the Houston Relocation Professionals' Board of Directors for 2025.
Blog post
UK Government Affairs Strategy Lead Shuyeb Muquit dives into the UK's shifting net migration trends.
Blog post
Senior Immigration Consultant Konstantin Schmid shares what employers and workers need to know about 2025 Swiss immigration quotas.
Media mentions
Senior Manager Deirdre Murray discusses the recent legislative changes to Ireland’s employment permits.
Fragomen news
Fragomen's Gemma Hyslop, Andreia Florina Ghimis and Ana Sofia Walsh review ODI Global's new report.