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Fogo de Chao (Holdings) Inc. v. United States Dep't of Homeland Security

United States Court of Appeals, District of Columbia Circuit

October 21, 2014

FOGO DE CHAO (HOLDINGS) INC., APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPELLEES

Argued: May 1, 2014.

Page 1128

Appeal from the United States District Court for the District of Columbia. (No. 1:10-cv-01024).

Carl W. Hampe argued the cause for appellant. With him on the brief was Steve Chasin.

Gisela A. Westwater, Senior Litigation Counsel, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Stuart F. Delery, Assistant Attorney General, and Aram A. Gavoor, Trial Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: KAVANAUGH, MILLETT and WILKINS, Circuit Judges. OPINION filed by Circuit Judge MILLETT. Dissenting opinion filed by Circuit Judge KAVANAUGH.

OPINION

Page 1129

Millett, Circuit Judge:

Fogo de Chao (Holdings), Inc., operates numerous Brazilian steakhouse restaurants, known as churrascarias, in Brazil and the United States. According to Fogo de Chao, a critical component of its success has been the employment in each of its restaurants of genuine gaucho chefs, known as churrasqueiros, who have been raised and trained in the particular culinary and festive traditions of traditional barbecues in the Rio Grande do Sul area of Southern Brazil.

Page 1130

But of late, Fogo de Chao's efforts to bring authentic Brazilian churrasqueiro chefs into its United States restaurants have hit a legal roadblock. Federal immigration law provides what are known as L-1B visas to qualifying multinational businesses, which permit them to temporarily transfer foreign employees possessing " specialized knowledge" into the United States. From 1997 to 2006, the Department of Homeland Security granted Fogo de Chao over 200 L-1B visas for its churrasqueiros. 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.

I. Background

A. Statutory and Regulatory Framework

1.

In 1970, Congress amended the Immigration and Nationality Act, 8 U.S.C. § § 1101 et seq., to create a nonimmigrant visa program for qualifying employees of multinational companies that are being transferred to the United States. See Pub. L. No. 91-225, 84 Stat. 116, 116 (1970). As amended, the Act provides that a temporary, nonimmigrant visa may be issued to an alien who, after being employed continuously by the sponsoring employer for at least one year in the three years preceding his or her application, seeks to enter the United States to continue working for that employer (or an affiliate) " in a capacity that is managerial, executive, or involves specialized knowledge[.]" 8 U.S.C. § 1101(a)(15)(L).[1] A visa granted to an employee whose work entails specialized knowledge is commonly referred to as an L-1B visa, while a visa for managerial or executive employees is known as an L-1A visa. The " specialized knowledge" L-1B visa is at issue in this case.

The 1970 Act did not define " specialized knowledge," and the term has been subject to varying regulatory definitions. By 1987, the formal regulatory definition of " specialized knowledge" was " knowledge possessed by an individual whose advanced level of expertise and proprietary knowledge of the organization's product, service, research, equipment, techniques, management, or other interests of the employer are not readily available in the United States labor market." 52 Fed. Reg. 5738, 5752 (Feb. 26, 1987) (codified at 8 C.F.R. § 214.2( l )(1)(ii)(D) (1988)).

In 1990, Congress displaced that regulation with its own statutory definition, providing that an employee has specialized

Page 1131

knowledge " if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company." 8 U.S.C. § 1184(c)(2)(B); see also Immigration Act of 1990, Pub. L. No. 101-649, § 206(b)(2)(B), 104 Stat. 4978, 5023.

The Immigration and Naturalization Service has since promulgated a regulatory definition of " specialized knowledge" that essentially tracks the new statutory language, defining it as " special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or ...


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