What is “specialized knowledge” for an L-1B intracompany transferee? A recent US Court of Appeals decision provided guidance on this question.
The facts were as follows:
- Plaintiff Fogo de Chao, is a chain of Brazilian-style steakhouses specializing in preparing and serving meats in the “churrasco” style of the gauchos of Brazil.
- Fogo de Chao had successfully filed more than 200 L-1B visas for the specialized chefs, until…
- USCIS denied the L-1B petition Chef Rones Gasparetto in 2010 on the basis that his cultural background, knowledge and training did not constitute “specialized knowledge” as a matter of law.
- Fogo de Chao appealed until the case ultimately reached the US Court of Appeals for the District of Columbia.
The Court of Appeals reversed the denial and remanded the finding that culturally based skills do not constitute specialized knowledge. In doing so, the Court referred to the dismissal of the restaurant’s argument that training another employee to perform these specialized duties would cause economic hardship to the restaurant, opining that:
“Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts…that specialized knowledge may be ultimately a ’relative and empty idea which cannot have plain meaning’ …is not a feature to be celebrated and certainly not license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright relevance of Fogo de Chao’s evidence of economic evidence threatens just that.”
The Court rejected the government’s categorical disregard??? of culturally acquired knowledge and refused to give deference to the agency’s interpretation of “specialized knowledge” as the decision was the product of informal adjudication within USCIS rather than formal adjudication or notice and comment rulemaking.