Important Updates
Important Updates
June 24, 2025 | GuyanaGuyana: Delays in Visitor Visas and Extensions of Stay
June 25, 2025 | Cayman IslandsCayman Islands: New Medical Requirement Introduced for Three-Month Temporary Work Permits
June 25, 2025 | 🌐Middle East - The Latest News on Mobility and Travel Considerations
June 25, 2025 | PeruPeru: Visa-Free Business Travel for Japanese Nationals Forthcoming
June 25, 2025 | VietnamVietnam: eID Requirement Forthcoming for All Administrative Procedures
June 24, 2025 | GuyanaGuyana: Delays in Visitor Visas and Extensions of Stay
June 25, 2025 | Cayman IslandsCayman Islands: New Medical Requirement Introduced for Three-Month Temporary Work Permits
June 25, 2025 | 🌐Middle East - The Latest News on Mobility and Travel Considerations
June 25, 2025 | PeruPeru: Visa-Free Business Travel for Japanese Nationals Forthcoming
June 25, 2025 | VietnamVietnam: eID Requirement Forthcoming for All Administrative Procedures
June 24, 2025 | GuyanaGuyana: Delays in Visitor Visas and Extensions of Stay
Subscribe
Fragomen.com home
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMedia
Search Fragomen.com
  • Our Services
    For EmployersFor IndividualsBy IndustryCase Studies
  • Our Tech & Innovation
  • Our People
  • Our Insights
    Worldwide Immigration Trends ReportsMagellan SeriesImmigration AlertsEventsMedia MentionsFragomen NewsBlogsPodcasts & Videos
  • Spotlights
    Navigating Immigration Under the Second Trump AdministrationTravel & Mobility Considerations: Situation in the Middle EastImmigration Matters: Your U.S. Compliance RoadmapHumanitarian and Evolving Legal Pathways (HELP)Vietnamese ImmigrationAustralian Immigration: New Skills in Demand Visa
  • About Us
    About FragomenOfficesResponsible Business PracticesFirm GovernanceRecognition

Our Services

  • For Employers
  • For Individuals
  • By Industry
  • Case Studies

Our Tech & Innovation

  • Our Approach

Our People

  • Overview / Directory

Our Insights

  • Worldwide Immigration Trends Reports
  • Magellan Series
  • Immigration Alerts
  • Events
  • Media Mentions
  • Fragomen News
  • Blogs
  • Podcasts & Videos

Spotlights

  • Navigating Immigration Under the Second Trump Administration
  • Travel & Mobility Considerations: Situation in the Middle East
  • Immigration Matters: Your U.S. Compliance Roadmap
  • Humanitarian and Evolving Legal Pathways (HELP)
  • Vietnamese Immigration
  • Australian Immigration: New Skills in Demand Visa

About Us

  • About Fragomen
  • Offices
  • Responsible Business Practices
  • Firm Governance
  • Recognition
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMedia
  • Insights

Fragomen on Immigration: Federal Court Criticizes USCIS's Narrow Interpretation of L-1B Visa Eligibility

November 20, 2014

Marco Deutsch

Country / Territory

  • United StatesUnited States

Related contacts

austin_fragomen

Austin T. Fragomen

Chairman Emeritus

Miami, FL, United States

Email

[email protected]

T:+1 786 539 1744

Careen-Shannon

Careen Shannon

Senior Counsel

Matawan, NJ, United States

Email

[email protected]

T:+1 212 891 7517

Related offices

  • Atlanta, GA
  • Boston, MA
  • Chicago, IL
  • Miami, FL
  • Dallas, TX
  • Houston, TX
  • Irvine, CA
  • Los Angeles, CA
  • Matawan, NJ
  • New York, NY
  • San Diego, CA
  • San Francisco, CA
  • San Jose
  • Silicon Valley, CA
  • Detroit, MI
  • Washington, DC

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related contacts

austin_fragomen

Austin T. Fragomen

Chairman Emeritus

Miami, FL, United States

Email

[email protected]

T:+1 786 539 1744

Careen-Shannon

Careen Shannon

Senior Counsel

Matawan, NJ, United States

Email

[email protected]

T:+1 212 891 7517

Related offices

  • Atlanta, GA
  • Boston, MA
  • Chicago, IL
  • Miami, FL
  • Dallas, TX
  • Houston, TX
  • Irvine, CA
  • Los Angeles, CA
  • Matawan, NJ
  • New York, NY
  • San Diego, CA
  • San Francisco, CA
  • San Jose
  • Silicon Valley, CA
  • Detroit, MI
  • Washington, DC

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related contacts

austin_fragomen

Austin T. Fragomen

Chairman Emeritus

Miami, FL, United States

Email

[email protected]

T:+1 786 539 1744

Careen-Shannon

Careen Shannon

Senior Counsel

Matawan, NJ, United States

Email

[email protected]

T:+1 212 891 7517

Related offices

  • Atlanta, GA
  • Boston, MA
  • Chicago, IL
  • Miami, FL
  • Dallas, TX
  • Houston, TX
  • Irvine, CA
  • Los Angeles, CA
  • Matawan, NJ
  • New York, NY
  • San Diego, CA
  • San Francisco, CA
  • San Jose
  • Silicon Valley, CA
  • Detroit, MI
  • Washington, DC

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

By: Careen Shannon, Austin T. Fragomen, Jr.

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! 

 

Country / Territory

  • United StatesUnited States

Related contacts

austin_fragomen

Austin T. Fragomen

Chairman Emeritus

Miami, FL, United States

Email

[email protected]

T:+1 786 539 1744

Careen-Shannon

Careen Shannon

Senior Counsel

Matawan, NJ, United States

Email

[email protected]

T:+1 212 891 7517

Related offices

  • Atlanta, GA
  • Boston, MA
  • Chicago, IL
  • Miami, FL
  • Dallas, TX
  • Houston, TX
  • Irvine, CA
  • Los Angeles, CA
  • Matawan, NJ
  • New York, NY
  • San Diego, CA
  • San Francisco, CA
  • San Jose
  • Silicon Valley, CA
  • Detroit, MI
  • Washington, DC

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related contacts

austin_fragomen

Austin T. Fragomen

Chairman Emeritus

Miami, FL, United States

Email

[email protected]

T:+1 786 539 1744

Careen-Shannon

Careen Shannon

Senior Counsel

Matawan, NJ, United States

Email

[email protected]

T:+1 212 891 7517

Related offices

  • Atlanta, GA
  • Boston, MA
  • Chicago, IL
  • Miami, FL
  • Dallas, TX
  • Houston, TX
  • Irvine, CA
  • Los Angeles, CA
  • Matawan, NJ
  • New York, NY
  • San Diego, CA
  • San Francisco, CA
  • San Jose
  • Silicon Valley, CA
  • Detroit, MI
  • Washington, DC

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related contacts

austin_fragomen

Austin T. Fragomen

Chairman Emeritus

Miami, FL, United States

Email

[email protected]

T:+1 786 539 1744

Careen-Shannon

Careen Shannon

Senior Counsel

Matawan, NJ, United States

Email

[email protected]

T:+1 212 891 7517

Related offices

  • Atlanta, GA
  • Boston, MA
  • Chicago, IL
  • Miami, FL
  • Dallas, TX
  • Houston, TX
  • Irvine, CA
  • Los Angeles, CA
  • Matawan, NJ
  • New York, NY
  • San Diego, CA
  • San Francisco, CA
  • San Jose
  • Silicon Valley, CA
  • Detroit, MI
  • Washington, DC

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Explore more at Fragomen

Blog post

The EB-1C Green Card for Multinational Managers and Executives: Exploring Non-Traditional Pathways to Permanent Residency

Associate Whitney Luman discusses the EB-1C Green Card for multinational managers and executives, exploring non-traditional pathways to permanent residency.

Learn more

Video

Post-Graduation Work Permit (PGWP) | Staying in Canada Post-Graduation

Partner Jack Kim discusses one of many immigration pathways for staying in Canada post-graduation, the Post-Graduation Work Permit (PGWP).

Learn more

Blog post

A New Beginning: The Rise of Highly Skilled Visa and Digital Nomad Visa Options in APAC

Practice Leader Kate Praphakornphiphat, Senior Manager Amy Zhang, Immigration Program Manager Melissa Ngeow and Senior Knowledge Management Specialist Faye Amorado discuss the increasing popularity of highly skilled visas and digital nomad visas in the Asia-Pacific region.

Learn more

Fragomen news

Canada's Semiconductor Council: Strengthening Canada’s Semiconductor Talent Pipeline for Global Competitiveness

Partner Cosmina Morariu contributed to Canada’s Semiconductor Council 2025 Talent & Workforce Development report, highlighting immigration’s role in closing talent gaps.

Learn more

Awards

Fragomen Recognized with Community Service Award at Woori Center 2025 Gala

Fragomen was honored with the Community Service Award at the Woori Center 2025 Gala on June 21, 2025 in Philadelphia.

Learn more

Media mentions

People Management: How HR Can Prepare for the ETIAS Rollout

Manager Andreia Florina Ghimis explains how HR teams can prepare for the EU’s new ETIAS travel authorisation system by communicating changes, supporting employees and ensuring compliance.

Learn more

Blog post

Not Getting Selected in the H-1B Lottery is Not the End of the Road: Other Options May Be Available

Partner Parisa Karaahmet and Associate Mehmet Esat Acar discuss how not being selected in the H-1B lottery is not the end of the road, as other visa options may be available.

Learn more

Media mentions

The Athletic: Trump Travel Ban, New Revenue-Sharing Model Create Uncertainty for International College Athletes

Partner Aaron Blumberg explains how visa delays and evolving rules are creating new challenges for international college athletes in the US.

Learn more

Media mentions

Welt: Mehr Einwanderung dank „Super-Agentur“ – die heiklen Migrationspläne der Regierung

Partner Marius Tollenaere discussed how a digital “Super-Agency” could streamline Germany’s skilled migration.

Learn more

Blog post

Crisis Preparedness Amidst Geopolitical Uncertainty

Senior Immigration Program Manager Alexia Prior and Senior Immigration Programme Consultant Julia Daoud discuss the importance of crisis preparedness in the face of geopolitical instability, emphasizing proactive strategies and resilience planning.

Learn more

Video

South African Citizenship Updates | #MobilityMinute

In this Mobility Minute, Immigration Consultant Caryn Esther Fisher discusses recent South African citizenship updates.

Learn more

Awards

Utah Business Recognizes Fragomen Salt Lake City Lawyers in 2025 Legal Elite Awards

Partner F. Joseph Paldino, Senior Associate Clark Cannon and Associate Mallorie Mecham are recognized in Utah Business’s 2025 Legal Elite.

Learn more

Blog post

The EB-1C Green Card for Multinational Managers and Executives: Exploring Non-Traditional Pathways to Permanent Residency

Associate Whitney Luman discusses the EB-1C Green Card for multinational managers and executives, exploring non-traditional pathways to permanent residency.

Learn more

Video

Post-Graduation Work Permit (PGWP) | Staying in Canada Post-Graduation

Partner Jack Kim discusses one of many immigration pathways for staying in Canada post-graduation, the Post-Graduation Work Permit (PGWP).

Learn more

Blog post

A New Beginning: The Rise of Highly Skilled Visa and Digital Nomad Visa Options in APAC

Practice Leader Kate Praphakornphiphat, Senior Manager Amy Zhang, Immigration Program Manager Melissa Ngeow and Senior Knowledge Management Specialist Faye Amorado discuss the increasing popularity of highly skilled visas and digital nomad visas in the Asia-Pacific region.

Learn more

Fragomen news

Canada's Semiconductor Council: Strengthening Canada’s Semiconductor Talent Pipeline for Global Competitiveness

Partner Cosmina Morariu contributed to Canada’s Semiconductor Council 2025 Talent & Workforce Development report, highlighting immigration’s role in closing talent gaps.

Learn more

Awards

Fragomen Recognized with Community Service Award at Woori Center 2025 Gala

Fragomen was honored with the Community Service Award at the Woori Center 2025 Gala on June 21, 2025 in Philadelphia.

Learn more

Media mentions

People Management: How HR Can Prepare for the ETIAS Rollout

Manager Andreia Florina Ghimis explains how HR teams can prepare for the EU’s new ETIAS travel authorisation system by communicating changes, supporting employees and ensuring compliance.

Learn more

Blog post

Not Getting Selected in the H-1B Lottery is Not the End of the Road: Other Options May Be Available

Partner Parisa Karaahmet and Associate Mehmet Esat Acar discuss how not being selected in the H-1B lottery is not the end of the road, as other visa options may be available.

Learn more

Media mentions

The Athletic: Trump Travel Ban, New Revenue-Sharing Model Create Uncertainty for International College Athletes

Partner Aaron Blumberg explains how visa delays and evolving rules are creating new challenges for international college athletes in the US.

Learn more

Media mentions

Welt: Mehr Einwanderung dank „Super-Agentur“ – die heiklen Migrationspläne der Regierung

Partner Marius Tollenaere discussed how a digital “Super-Agency” could streamline Germany’s skilled migration.

Learn more

Blog post

Crisis Preparedness Amidst Geopolitical Uncertainty

Senior Immigration Program Manager Alexia Prior and Senior Immigration Programme Consultant Julia Daoud discuss the importance of crisis preparedness in the face of geopolitical instability, emphasizing proactive strategies and resilience planning.

Learn more

Video

South African Citizenship Updates | #MobilityMinute

In this Mobility Minute, Immigration Consultant Caryn Esther Fisher discusses recent South African citizenship updates.

Learn more

Awards

Utah Business Recognizes Fragomen Salt Lake City Lawyers in 2025 Legal Elite Awards

Partner F. Joseph Paldino, Senior Associate Clark Cannon and Associate Mallorie Mecham are recognized in Utah Business’s 2025 Legal Elite.

Learn more

Stay in touch

Subscribe to receive our latest immigration alerts

Subscribe

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Have a question?

Contact Us
  • LinkedIn
  • Youtube
  • Instagram
  • Facebook
  • Twitter

© 2025 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

Please note that the content made available on this site is not intended for visitors / customers located in the province of Quebec, and the information provided is not applicable to the Quebec market. To access relevant information that applies to the Quebec market, please click here.