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Fogo De Chao (Holdings), Inc. v. U.S. Department of Homeland Security

United States District Court, District of Columbia

September 26, 2016



          REGGIE B. WALTON United States District Judge.

         The plaintiff, Fogo De Chao (Holdings), Inc. (“Fogo” or the “petitioner”), which operates Brazilian-style steakhouses known as churrascarias, seeks judicial review under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (2012), of the defendants' denial of a non-immigrant, “L-1B” work visa to transfer the proposed beneficiary of the visa from Fogo's Brazilian subsidiary to the position of a churrasqueiro chef in the petitioner's United States locations. See generally Compl. Currently pending before the Court are the parties' cross-motions for summary judgment, see generally Plaintiff's Motion for Summary Judgment (“Pl.'s Mot.”); Defendants' Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment (“Defs.' Mot.”), which present essentially two questions: (1) whether the position that the intended L1-B beneficiary would occupy “involves specialized knowledge;” and (2) whether the evidence on the record is sufficient to establish that the proposed beneficiary possesses such “specialized knowledge” as required under the applicable regulatory scheme discussed herein. See generally Plaintiff's Memorandum of Points and Authorities in Support of Motion for Summary Judgment (“Pl.'s Mem.”) at 17-26. Upon consideration of the parties' submissions, the Court will grant in part and deny in part both parties' motions.[1]

         I. BACKGROUND

         The lengthy procedural and factual background underlying Fogo's extended effort to obtain a non-immigrant work visa for Rones Gasparetto (“Gasparetto”) is detailed in the District of Columbia Circuit's opinion in Fogo de Chao (Holdings), Inc. v. U.S. Dep't of Homeland Security, 769 F.3d 1127, 1132-35 (D.C. Cir. 2014), and the Court will not reiterate every detail of that history here. But a brief recitation of the relevant regulatory and procedural background is helpful to frame the Court's analysis of the motions currently before the Court.

         A. Statutory and Regulatory Background

         The Immigration and Nationality Act (the “Act”) “create[d] a nonimmigrant visa program for qualifying employees of multinational companies that are being transferred to the United States.” Fogo de Chao (Holdings), 769 F.3d at 1130 (citing 8 U.S.C. §§ 1101 et seq.). The Act authorizes the issuance of a visa to

an alien who, within [three] 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 is managerial, executive, or involves specialized knowledge . . . .

8 U.S.C. § 1101(a)(15)(L). “A visa granted to an employee whose work entails specialized knowledge is commonly referred to as an L-1B visa . . . .” Fogo de Chao (Holdings), 769 F.3d at 1130. The Act itself does not define what amounts to “specialized knowledge, ” id., but the United States Citizenship and Immigration Services (the “Service”) promulgated a regulation defining the term 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.

8 C.F.R. § 214.2(l)(1)(ii)(D). Accordingly, an employer seeking a “specialized knowledge” or L-1B visa must submit, in addition to other requirements,

(ii) [e]vidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed[;]
(iii) [e]vidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition[; and]
(iv) [e]vidence that the alien's prior year of employment abroad was in a position that was managerial, executive, or 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 ...

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