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Fogo De Chao Churrascaria, LLC v. U.S. Department of Homeland Security

United States District Court, District Circuit

August 9, 2013



REGGIE B. WALTON, District Judge.

This case, which implicates the Immigration and Nationality Act, 8 U.S.C. § 1101 (2006), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 (2006), is currently before the Court on the parties' cross motions for summary judgment. For the following reasons, the Court must grant the defendants' motion for summary judgment and deny the plaintiff's motion for summary judgment.[1]


A. The Immigration and Nationality Act of 1990

The Immigration and Nationality Act of 1990 sets forth the criteria under which foreign nationals may receive immigrant or nonimmigrant visas in order to lawfully study, work, or reside in the United States. 8 U.S.C. § 1151. Among the various visas granting access to the country is one for a nonimmigrant individual

who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that... involves specialized knowledge.

Id. § 1101(a)(15)(L). The Act provides further that "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." Id . § 1184(c)(2)(B). And the Act's implementing regulations define specialized knowledge as:

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.

8 C.F.R. § 214.2(l)(1)(ii)(D). The United States Customs and Immigration Service ("USCIS"), which is part of the Department of Homeland Security, has further interpreted specialized knowledge "through historical precedent decisions and numerous internal policy memoranda." See Administrative Record ("AR") at 5 (citing Matter of Penner, 18 I&N Dec. 49 (Comm'r 1982); Memorandum of James A. Puleo, Executive Assoc. Comm'r, Immigration and Naturalization Service, Interpretation of Special Knowledge (Mar. 9, 1994) ("Puleo Memorandum"); Memorandum of Fujie Ohata, Director, Service Center Operations, USCIS, Interpretation of Specialized Knowledge for Chefs and Specialty Cooks Seeking L-1B Status (Sept. 9, 2004) ("2004 Ohata Memorandum")).[2] Nonimmigrant, intracompany transferee visas for individuals possessing specialized knowledge are commonly known as "L-1B" visas. See, e.g., AR at 3.

For an individual to obtain an L-1B visa, the American company that seeks to hire the employee "must file a petition on Form I-129, Petition for Nonimmigrant Worker." 8 C.F.R. § 214.2(l)(2)(i). Among other types of evidence, the petition must be accompanied by

[e]vidence that the alien will be employed in a[]... specialized knowledge capacity, including a detailed description of the services to be performed, ... [e]vidence that the alien has at least one year of continuous full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition, [and] [e]vidence that the alien's prior year of employment abroad was in a position that... involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.

8 C.F.R. § 214.2(l)(3)(ii)-(iv).

B. Fogo de Chao

The plaintiff, Fogo de Chao ("Fogo"), owns and operates a chain of churrascarias, or Brazilian steakhouses, in several locations in both Brazil and the United States. AR at 842. Its first United States restaurant opened in 1997 in Dallas, Texas, and "[t]oday, Fogo has steakhouses in six locations in Brazil, and in sixteen cities throughout the [United States]." Id. at 843. The staff of each steakhouse includes "genuine Brazilian gaucho chefs (known as churrasqueiros), who grew up as gauchos in the rural pampas region of Southern Brazil." Id . The churrasqueiros, "specialize[] in churrasco, a traditional method of preparing and serving meat that descended from the gauchos or cowboys of the Rio Grande do Sul region of southern Brazil." Id. at 3 n.2.

The chefs at Fogo begin their careers by training for at least two years at one of the Brazilian steakhouses, after which certain chefs are chosen for potential transfer to restaurants in the United States. Id. at 843. Specifically, Fogo "selects as L-1B candidates its best-performing genuine gaucho churrasqueiros who express an interest in the transfer, and who have worked a minimum of two years in Fogo's restaurants in Brazil and have completed the training program there." Id. at 849.

C. The Gasparetto Petition

Fogo chose Rones Gasparetto as an L-1B transferee candidate after he expressed interest in a transfer, id. at 849, and then filed an L-1B visa petition (the "Gasparetto Petition") with the Vermont Service Center of the USCIS on his behalf on February 4, 2010, id. at 81-322, 359. In the petition, Fogo represented that, "[l]ike all of [its] other churrasqueiros in Brazil, Mr. Gasparetto is a genuine gaucho, born and raised in the Rio Grande do Sul region, " and "[h]e has well more than two years' experience as a churrasqueiro in Fogo Brazilian restaurants." Id. at 849. Fogo represented also that Mr. Gasparetto had "completed the training program in Brazil." Id.

Thereafter, the USCIS "determined that the petition... was not approvable on the record; that [the] petitioner had not met the burden of persuasion; and that additional evidence was needed." Id. at 359. The USCIS then "issued a[] [Request for Evidence] on February 19, 2010, ... which explained that [the] USCIS had reviewed the case and found insufficient evidence that the beneficiary [Mr. Gasparetto] was eligible for L status as an intracompany transferee in a position requiring or involving specialized knowledge." Id .; see also id. at 323-25. Fogo responded to the Request for Evidence on May 5, 2010. Id. at 326-57. The "USCIS re-reviewed the record in light of [Fogo's] response but concluded that [Fogo] still had not established" that Mr. Gasparetto was eligible for an L-1B visa, and thus denied the petition on May 20, 2010. Id. at 360.

Fogo filed a motion with the USCIS to reconsider the denial, but later requested to withdraw the motion. Id. at 360-61. The USCIS then reopened the petition "on its own motion" on October 25, 2010, id. at 361, 545, and Fogo responded to that motion on April 26, 2011, id. at 361, 373-538. The response included "a submission of new arguments and additional evidence." Id. at 361. The USCIS again found, "[a]fter a complete review of the record of proceeding, ... that the grounds for denial ha[d] not been overcome, " and therefore reaffirmed the denial of the Gasparetto Petition. Id. at 371.

Because the USCIS also found that "th[e] case involves an unusually complex or novel issue of law or fact, " the decision was "certif[ied]... to the Administrative Appeals Office (AAO)." Id . In doing so, the "USCIS [sought] clarification on application of regulation to the particular fact pattern presented by petitions filed by Fogo... for specialized knowledge intracompany transferees for the position of churrasqueiro and for [Mr. Gasparetto] in particular." Id.

The Administrative Appeals Office considered Fogo's submissions, including its initial filing and the sixteen attached exhibits, id. at 9, the additional information submitted in response to the Request for Evidence, id. at 13-14, and supplemental briefs and additional evidence submitted directly to the Office, id. at 4. In its decision, the Office addressed

(1) what is the appropriate standard that should be applied to determine "specialized knowledge"; (2) whether [Fogo's] churrasqueiro chef position requires specialized knowledge according to that standard; and (3) whether [Mr. Gasparetto]... possesses specialized knowledge, and has been and will be employed in a specialized knowledge capacity.

Id. at 21. The Office first found that specialized knowledge could not be determined using a bright-line test, but rather that "Congress created a standard that requires [the] USCIS to make a factual determination that can only be determined on a case-by-case basis, based on the agency's expertise and discretion." Id. at 36. The Office found also that Fogo "failed to corroborate its claims that the Brazilian employees possess knowledge or perform duties that are uncommon or different compared to those generally performed by churrasqueiro chefs in the Brazilian churrascaria restaurant industry." Id. at 51. With respect to Mr. Gasparetto in particular, the Office found that he did not possess specialized knowledge, but rather that he "possesses general cultural knowledge, values, and culinary skills acquired as a result of his upbringing in a rural area of Rio Grande do Sul and due to his family and community traditions." Id. at 40. Additionally, the Office noted that the Gasparetto Petition, Fogo's supporting documentation and its legal submissions "neither addressed nor attempted to clarify th[e] discrepancy" between Mr. Gasparetto's "foreign position of garcon churras' or churrasqueiro waiter' and the proffered position of churrasqueiro chef.'" Id. at 41. Thus, the Office found that "the record as presently constituted does not clearly document that [Mr. Gasparetto] completed the foreign entity's 24-month training program, or that such training was followed by one year of employment as a churrasqueiro chef in the foreign entity's restaurants, " even though "[t]hese are [Fogo's] stated minimum qualifications for transfer of its Brazilian churrasqueiro chefs to the United States." Id. at 41; see also id. at 50. Finally, the Office was "not persuaded that [Mr. Gasparetto's] inherent qualities give him special knowledge of [Fogo's] product, ' as opposed to general knowledge of his native regional culture gained through life experience." Id. at 41-42. Accordingly, the Office affirmed the denial of the Gasparetto Petition. Id. at 54.

D. The Current Lawsuit

Although Fogo instituted the current action after the initial denial of the Gasparetto Petition, the parties filed a joint motion to stay the proceedings while the defendants reconsidered the petition. See ECF No. 30; March 28, 2011 Minute Order (granting stay of proceedings). Upon the Administrative Appeals Office's final adjudication affirming the denial of the petition, the parties filed a joint status report agreeing that:

the remaining claims to be resolved on staggered cross-motions for summary judgment are Fogo's challenge to the actions taken by [the] [d]efendants with respect to Fogo's L-1B petition on behalf of Mr. Gasparetto, including but not limited to the [Administrative Appeals Office's] October 3, 2011 decision, affirming the [Vermont Service Center's] June 16, 2011 denial of that petition.
Such challenge is grounded in: (1) the Immigration and Nationality Act (8 U.S.C. [§] 1101 et seq.)..., its implementing regulations, and memos and analyses of the [d]efendants interpreting such authority, and (2) the [APA], including ...

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