Since 2008 American employers have been burning mad about how U.S. Citizenship and Immigration Services (USCIS) has gone from fairly reasonable to highly restrictive in its interpretation of the L-1B “specialized knowledge” visa category. This statutory visa category allows certain “intracompany transferees” to enter and work in the U.S. for a qualifying employer if he or she “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.” See Immigration and Nationality Act § 214(c)(2)(B).
Concerns over the USCIS’s change of direction on the L-1B have been voiced in many quarters, including the USCIS Ombudsman, a wide array of U.S.-based companies, the U.S. Chamber of Commerce, the National Foundation for American Policy, the American Immigration Lawyers Association, and this blog. Ever since the agency’s appellate body, the Administrative Appeals Office (“AAO”), issued a 2008 non-precedent decision, known as the “GST” case, immigration adjudicators found their conceptual road map to drive ever higher rates of Requests for Evidence and denials of L-1B petitions. GST repudiated settled policy guidance from the legacy agency, the Immigration and Naturalization Service (INS), defining specialized knowledge found in the 1994 “Puleo Memorandum.” That memo, later reaffirmed by INS and USCIS, applied dictionary definitions of the terms “special” and “advanced” and outlined several fairly reasonable factors that would allow an individual to qualify under the L-1B category.
Criticism of the restrictive interpretation of specialized knowledge ultimately reached the ear of the then Director of USCIS, Alejandro Mayorkas (now the Deputy Director of the Homeland Security Department), who stated in 2012 that updated guidance reflecting USCIS’s interpretation of specialized knowledge would be forthcoming. The agency, however, has never released the guidance. Numerous Beltway insiders suggest that the White House suspended its release and that the updated guidance is now being revised, presumably to satisfy whatever concerns of policy or politics may have prompted the suspension.
More recently, the interpretation of L-1B specialized knowledge and the Puleo Memorandum received extensive consideration in an October 21, 2014 opinion of the U.S. Court of Appeals for the District of Columbia Circuit, Fogo de Chao (Holdings) Inc., v. United States Department Of Homeland Security. In that case, a persistent prospective employer, operating numerous Brazilian steakhouse restaurants (churrascarias) under the brand, Fogo de Chao — Portuguese for “fire on the ground” — was denied L-1B classification for a chef, Rones Gasparetto, who had been “raised and trained in the particular culinary and festive traditions of traditional barbecues in the Rio Grande do Sul area of Southern Brazil” and who also received extensive in-house training from an affiliated employer abroad. The denials occurred at the USCIS Vermont Service Center, the AAO and the District Court.
At first blush, the decision could be seen as limited to its unusual facts. A two-judge majority remanded the case to USCIS because the AAO categorically refused to consider whether culturally acquired knowledge could be treated as “specialized” under the L-1B category and disregarded evidence that Mr. Gasparetto participated in the foreign employer’s training program. But a closer reading reveals a number of legal gems that may prove helpful in other L-1B cases:
- The courts will not defer to the presumed expertise of the agency under the Chevron doctrine in the interpretation of L-1B “specialized knowledge” because the agency’s definition in its regulations virtually parrots the statutory definition:
[Because] the regulation “gives little or no instruction . . . on the question at issue—what constitutes “special” or “advanced” knowledge for the purposes of L-1B visa eligibility—we cannot say that the agency has interpreted its regulation, rather than the underlying statute (citation omitted).
- An AAO decision lacking designation as a precedent is not entitled to Chevron deference. Rather, it will be given Skidmore consideration only to the extent of its persuasiveness.
- Consistent with the Puleo Memorandum, knowledge and experience gained outside of the petitioning organization may be considered in determining whether L-1B eligibility has been established.
- Although the AAO passingly noted the need to train another in the same field of endeavor, its failure to carefully consider evidence of economic disruption and the time required to train another to perform the L-1B candidate’s duties — also factors in the Puleo memorandum — constitutes reversible error:
[Consideration] of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts. After all, to understand what is “specialized” knowledge, the agency needs to define with consistency a comparative baseline. . . . That specialized knowledge may ultimately be a “relative and empty idea which cannot have a plain meaning,” Department Br. 22–23 (quoting 1756, Inc., 745 F. Supp. at 15), is not a feature to be celebrated and certainly not a 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 the relevance of Fogo de Chao’s evidence of economic inconvenience threatens just that.
- Although the majority opinion found insufficient evidence of Fogo de Chao’s claim that the agency had approved 200 prior petitions for the same position, and therefore rejected a claim of inconsistency, it noted that a proven “pattern of visa grants of sufficient magnitude could obligate the agency to provide a “reasoned explanation for . . . treating similar situations differently,” — or at least something more reasoned than [USCIS] confessing a decade-long pattern of “material and gross error (citation omitted).” Nonetheless, a definitive legal rule cannot be wrung out of a pattern of decisions unless the decisionmaker has “the authority to bind the agency,” and in this case, neither the Vermont Service Center nor the AAO had or exercised such authority.
Given that Court of Appeals remanded the case back to USCIS, it remains to be seen whether Chef Gasparetto will be serving American customers Brazilian-style steaks anytime soon. Also unknown is whether the long-awaited USCIS policy guidance, if ever issued, will provide accessible clarity on the requirements to establish L-1B specialized knowledge in a way that takes into account the reasonable needs of multinational companies in the 21st Century.