Brazilian Steakhouse Chef Has 'Specialized Knowledge': D.C. Cir.
The legal process for immigrating to the United States is "nightmarish," to put it charitably. Certain types of work visas, however, can make immigration much smoother than it would be otherwise. The L-1B is such a visa, and it's reserved for employees whose work entails "specialized knowledge."
If you think that phrase is a little vague, and that its definition would be ripe for a lawsuit, then welcome to Fogo de Chao v. Department of Homeland Security.
Mmm ... Immigration
Fogo de Chao is a chain of Brazilian-style churrascarias -- you know, the ones where waiters bring a dozen different kinds of meat to your table until you tell them to stop. Fogo de Chao tries to make its restaurants as authentic as possible by employing actual Brazilian chefs trained in the churrascaro style of cooking. Of course, these chefs need visas if they're going to work in the United States. It's successfully applied for them hundreds of times before.
In 2010, however, USCIS denied a L-1B visa for Rones Gasparetto on the ground that he wasn't employed in a specialized-knowledge job, saying that Fogo de Chao didn't demonstrate "that these skills are so uncommon or complex that other chefs in the industry could not master them within a reasonable period of time."
Cultural Knowledge Can't Be Special Knowledge?
An agency review, conducted by the Appeals Office of the Department of Homeland Security, concluded that one's knowledge of native culture is categorically general knowledge, not special knowledge. The D.C. Circuit disagreed, observing that nothing in the statute forbids cultural knowledge from being specialized, and indeed, "knowledge acquired over time through cultural exposure combined with first-hand experience" makes that employee more desirable than one who doesn't have that background of culture knowledge. Fogo de Chao demonstrated not only that such knowledge was relevant to its business, but also that Gasparetto possessed that knowledge.
The D.C. Circuit also faulted the Appeals Office for rejecting, without any apparent reason, uncontested evidence that Gasparetto had completed a Fogo de Chao training program in Brazil and worked in the churrasqueiro position. It remanded the case to district court, with instructions that it be remanded further to the agency.
Dissent: It's Just a Steak
Judge Brett Kavanaugh dissented, saying that mere knowledge of a person's cultural background isn't enough to meet the "specialized knowledge" requirement. And he's very dismissive of the notion that "the Brazilian chefs have specialized knowledge because it takes significant time for American chefs to learn how to cook Brazilian steaks."
But Kavanaugh raises one interesting point: Fogo de Chao might not be interested in Brazilian chefs for their specialized knowledge. He explained: "Fogo de Chao undoubtedly would save money if it could simply import experienced Brazilian chefs rather than hiring and training only American chefs to cook at its steakhouses here in the United States. And at bottom, that seems to be at least part of what is going on in this case -- namely, Fogo's desire to cut labor costs masquerading as specialized knowledge."
Even if the issue ends up being knowing how to cook a steak, the majority's point is that the Appeals Office unilaterally dismissed any cultural knowledge as specialized. With the D.C. Circuit ruling in hand, it may very well be that the Appeals Office concludes that learning how to cook a steak just isn't specialized enough.
- Fogo de Chao Wins Meaty Case in Visa Fight with Homeland Security (The Washington Post)
- American Samoans Challenge Denial of U.S. Citizenship (FindLaw's D.C. Circuit Blog)
- For Q-1 Visa, Employer Sponsors Must Pay Foreign Interns (FindLaw's D.C. Circuit Blog)
- DOL Has Rulemaking Authority in H-2B Visa Certification (FindLaw's U.S. Third Circuit Blog)