+1(212)459-3800 [email protected]

An L-1B visa (a type of nonimmigrant visa) may be issued to an alien employee of a multinational company, to allow the employee to transfer from the company abroad to an affiliate company in the United States, if the employee works “in a capacity that . . . involves specialized knowledge.”  The relevant regulation defines “specialized knowledge” 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 expertise in the organization’s processes and procedures.  We have seen the L-1b visa under attack over the years and watched closely as USCIS has continuously narrowed the definition of “specialized knowledge” and whittled down the numbers of possible employees who would qualify for the visa making it extremely challenging to obtain.  Recent statistics have revealed that almost 66% of all L-1b filings receive requests for further evidence (RFE), long-winded ,endless requests for additional information, often previously supplied.  Out of those 66%, more than a third of the cases are ultimately denied.

A recent decision (Fogo de Chao v. DHS, No. 13-5301) by the U.S. Court of Appeals for the District of Columbia Circuit ruled that foreign chefs with specialized knowledge acquired through cultural traditions, upbringing or life experience may qualify for L-1b visas to work in the U.S.

The ruling was a victory for the upscale Brazilian steakhouse, Fogo de Chao, an international chain whose 25 U.S. eateries import their chefs from the Rio Grande do Sul area of southern Brazil, where they are reared and trained in the “gaucho way” of roasting meats over pits of open fire for barbecues.  The ruling doesn’t grant automatic L-1b visas for chefs, but it appears to assist in creating a palatable argument that cultural training may be considered specialized knowledge.

Fogo de Chao had successfully obtained more than 200 such visas for its Brazilian-trained chefs, known as churrasqueiros, according to court documents.  But a USCIS branch office in Vermont rejected one of the company’s petitions in 2010, finding that its chefs’ skills were not “so uncommon or complex that other chefs in the industry could not master them within a reasonable period of time.”

An administrative appeals court agreed with the Vermont Service Center’s decision, as did a federal district judge presiding over Fogo de Chao’s lawsuit challenging the denial of its petition.  The D.C. Circuit, however, overruled 2-1 that cultural knowledge “can be a relevant component” of specialized knowledge.

Fogo de Chao used the fact that the chefs were needed to create an authentic churrascaria experience in the United States.  The restaurant argued that by dint of the fact that the L-1b chefs from Brazil learned this style of cooking first hand growing up in the Rio Girande do Sul region and through training and at least two years of experience in Fogo de Chao’s Brazilian restaurants, they possessed specialized knowledge of the art.

The key issue in Fogo was whether a foreign national chef could gain such specialized knowledge through one’s own cultural traditions, upbringing or life experience. The USCIS said that one’s cultural upbringing falls within the realm of general knowledge rather than specialized knowledge, and thus, such a chef would not qualify for an L-1b visa.  When we generally handle L-1b cases, because of USCIS’s stringent reading of the L-1b requirements, we look for knowledge specific to a company and industry, normally knowledge that can only be possessed by one who has been employed by the company, and further, evidence that this knowledge is held by only a few select individuals within the company.  This has been the general approach and analysis employed by USCIS in the L-1b context.

The actual law, as noted above, is as follows:
“…an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company 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 …”

The court in Fogo interestingly held that the Administrative Appeals Office lacked the power to decide that it could categorically exclude cultural knowledge as a basis for specialized knowledge.

The Fogo court also added that economic inconvenience to the company to hire and train local candidates can sometimes be the most concrete evidence that the knowledge is specialized.

I think Fogo is important even outside of the culinary industry.  Certainly, in a Japanese company, one can argue that knowledge of management techniques specific to the Japanese culture could be deemed specialized.  Perhaps knowledge of a particular software application through a different employer may qualify if it is specialized enough. Showing economic hardship to hire locally may be a cogent argument after Fogo.

As stated above, recently USCIS has applied a strict reading of the statute, irrespective of memos, and other interpretations. This has led to a huge spate of denials and an extremely high standard that does not accurately reflect the intent of the regulations. Fogo has provided us with fuel to argue that the statute is more expansive and echoes what we all know in reality, that no employer is going to go to the trouble of bringing someone from abroad, paying them an expat salary, sometimes additional costly benefits and incentives, moving costs and transportation, unless that individual has specialized knowledge essential to the operations of the company. The Fogo court’s recognition of importance of culture, economic hardship, and specialized knowledge which may be acquired outside of the employing organization, is truly a breath of fresh air in what has been a stale environment.  On a personal level, it has given me incentive to use some of the ideas espoused by the court in zealously arguing for our clients.

Written by David Sindell
SW Law Group, P.C.