Over the last few years, U.S. Citizenship & Immigration Services (USCIS) has made a concerted effort to restrict the number of L-1B visas being issued. And, without much oversight, USCIS has managed (almost unfettered) to do so primarily through unpublished, non-binding decisions issued by the Administrative Appeals Office (AAO), selective reliance on precedent administrative decisions, and federal district court L-1B cases prior to 1990. As a result, business immigration practitioners have been banging their heads against a wall trying to make sense of USCIS’s decisions denying L-1B petitions. A welcomed sense of relief was felt by most when President Barack Obama announced that, as part of his Immigration Accountability Executive Actions, USCIS would be releasing a long overdue policy memorandum that should define “specialized knowledge” and clarify the L-1B eligibility criteria for adjudicators in 2015.
By way of background, the L-1B visa enables U.S. employers to transfer a professional employee with specialized knowledge relating to the petitioning employer’s interests from one of its affiliated foreign offices to one of its offices in the U.S. To qualify for an L-1B visa, the employer must: (i) have a qualifying relationship with the foreign entity (parent, branch, subsidiary, or affiliate); and (ii) currently be, or will be, doing business as an employer in the U.S. and in at least one other country directly or through a qualifying organization for the duration of the prospective employee’s stay in the U.S. Similarly, the qualifying employee must: (i) have been working for a qualifying entity abroad for one year within the last three years before coming to the U.S.; and (ii) be providing services in a specialized knowledge capacity to a qualifying employer in the U.S. Due to several high profile cases of fraud and abuse, USCIS has made it increasingly more difficult to obtain the L-1B visa.
Despite USCIS’ efforts, L-1B employers and employees can take solace in a recent case out of the U.S. Court of Appeals for the D.C. Circuit. In Fogo de Chao (Holdings) v. U.S. Dept. of Homeland Sec., 2014 WL 5327688 (D.C. Cir. Oct. 21, 2014), the Court chastised USCIS for its restrictive interpretation of L-1B visa eligibility, and its narrow application of key terms that appear in the statutory, regulatory, and policy materials that address and define the term “specialized knowledge.”
In Fogo de Chao, the petitioner had been granted over 200 L-1B visas between 1997 and 2006 for its churrasqueiros, a type of chef that specializes in cooking of meals in the churrasco style popular in Brazil. In 2010, seeking to transfer another churrasqueiro chef, the petitioner filed an L-1B petition on the chef’s behalf and took the position that his distinctive cultural background and extensive cooking experience in the churrasco style constituted “specialized knowledge.” USCIS denied the petition. And the AAO, affirming the denial, concluded that the chef’s cultural background, knowledge, and training, could not, as a matter of law, constitute “specialized knowledge.”
Finding the AAO’s reasoning hard to understand, the Court reversed the granting of summary judgment in favor of the government. The Court further prohibited USCIS from treating certain types of knowledge as categorically ineligible for treatment as specialized, and directed it to give consideration to the economic inconvenience an employer would face if it were unable to transfer a foreign beneficiary to the U.S. The Court further determined that a long history of prior L-1B petition approvals could be deemed relevant in current adjudications.
Interestingly, it is important to note that the Court refused to accord any deference to USCIS’s L-1B regulations. Recognizing that the Court generally accords “substantial deference to an agency’s interpretation of both a statute it administers and its own implementing regulations,” the Court determined that no deference was required when, “instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.”
The court’s decision is a reassuring development for L-1B sponsoring employers. It means that adjudicators may not as easily get away with simply denying L-1B petitions as before, and that such denials might be more open to judicial challenges.
For more information, please contact Maria del Carmen Ramos at 813.227.2252 or firstname.lastname@example.org.