AUTHOR: Harry J. Joe.
Despite USCIS’s 251 prior approvals of L-1B Specialized Knowledge Visa Petitions filed by Fogo De Chao for gaucho chefs, a federal District Court in Washington, D.C., upheld the USCIS’s denial of such a petition for Rones Gasparetto and found the agency’s interpretation of “specialized knowledge” was not arbitrary, capricious or unreasonable. Fogo De Chao Churrascaria, LLC v. U.S. Department of Homeland Security, et al., No. 10-1024 (D.D.C. Aug. 9, 2013).
USCIS denied Fogo’s petition because Fogo did not provide sufficient evidence to establish that Gasparetto would be employed in a position requiring or involving specialized knowledge and that he possessed specialized knowledge. The decision went to USCIS’s Administrative Appeals Office for clarification of the application of the statute and regulation that defines specialized knowledge.
The AAO found that specialized knowledge could not be determined using a bright-line test, but that Congress created a standard requiring USCIS to make a factual determination on a case-by-case basis. The AAO also found there was insufficient evidence that the offered position required specialized knowledge according to the interpretive guidelines in the Memorandum of James A. Puleo, Exec. Assoc. Comm’r, INS, Interpretation of Specialized Knowledge (Mar. 9, 1994) and Memorandum of Fujie Ohata, Dir. Service Center Operations, USCIS, Interpretation of Specialized Knowledge for Chefs and Specialty Cooks Seeking L-1B Status,(Sept. 9, 2004). Finally, the AAO found the evidence did not establish Gasparetto possessed specialized knowledge, but that he had general cultural knowledge, values and culinary skills acquired as a result of cultural upbringing in Brazil. Moreover, the AAO noted Fogo had not provided evidence that Gasparetto had been employed as a Gaucho Chef at its restaurant in Brazil.
Fogo challenged USCIS’s interpretation of specialized knowledge. It argued that the Congressional definition of “specialized knowledge” as being “special knowledge of the company product and its application in international markets” or “advanced level of knowledge of processes and procedures of the company” was not clear. The federal District Court agreed, saying the definition was circular and inherently ambiguous, and could not have a plain meaning. It rejected Fogo’s argument, however, that the legislative history supported a broadened interpretation of specialized knowledge.
As the statutory definition of specialized knowledge was ambiguous, the only remaining issue for the Court was whether the AAO’s interpretation of specialized knowledge was based on a permissible construction. It found the reliance on the Puleo and Ohata memoranda, legislative history and applicable regulations was reasonable and entitled to deference.
Fogo’s remaining arguments that the agency’s actions violated provisions of the Administrative Procedure Act were rejected.
This case underscores the difficulty that petitioning employers have in seeking to judicially challenge an administrative denial of an L-1B Specialized Knowledge visa petition. In a similar case, the Fifth Circuit Court of Appeals affirmed the denial of L-1B petitions for certain Brazilian chefs trained to cook in the gaucho manner in Boi Na Braza Atlanta LLC v. Upchurch, 194 F. App’x 248 (5th Cir. 2006). It affirmed the finding that the denials were based on proper consideration of the evidence, legislative history, the agency’s interpretive memoranda and regulations.
L-1B Specialized Knowledge Visa Petitions are particularly complex and face numerous evidentiary hurdles described in the Puleo Memorandum, which, barring Congressional action, will continue to govern the adjudication of L-1B petitions.