Court: USCIS should consider ‘life experience’ for specialized knowledge L-1B visa

In holding that cultural traditions and life experience can be considered “specialized knowledge” for purposes of obtaining an L-1B intracompany transferee visa, a United States appeals court rejected the proposition that a company must have an “ownership claim” in the worker’s knowledge before it may qualify as “specialized.”

Rather, the U.S. Court of Appeals for the District of Columbia Circuit held that the knowledge gained through a worker’s upbringing or “life experience,” like other forms of specialized knowledge, may form the basis for a L-1B visa petition. The appellate court remanded the case to U.S. Citizenship and Immigration Services to develop a rule consistent with the decision.

This is a significant development for employers seeking to temporarily transfer a worker from a foreign facility to a location in the U.S. under a L-1B visa. Not only can they show that the worker has specialized knowledge based on the employer’s training programs, they may now be able to point to the worker’s prior life experience as well as a basis for the visa.

In order to qualify for an L-1B visa, a foreign worker must have been continuously employed abroad for at least one year in the three years preceding the application and must also hold specialized knowledge in a particular field that is uncommon, not easily acquired and necessary for the employer’s continued operations.

In Fogo de Chao (Holdings) Inc. v. DHS, No. 13-5301, D.C. Cir., 10/21/14, the employer, Fogo de Chao, which operates numerous Brazilian steakhouse restaurants in Brazil and the United States, sought a L-1B visa for a chef 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.

USCIS’ Administrative Appeals Office rejected the visa petition because the chef’s cultural background, knowledge, and training could not, as a matter of law, constitute specialized knowledge as “necessarily falls into the realm of general knowledge, even if an individual’s specific culture itself is limited to a relatively small population or geographic location.”

The Administrative Appeals Office also excluded the chef’s “specialized knowledge” because it was not in a “company product and its application in international markets,” or “of processes and procedures of the company.

The appellate court rejected these limitations by USCIS.

“The Appeals Office decision was devoid of any reasoned explanation as to why training and skills-acquisition can qualify as specialized if obtained from a corporate instructor, but categorically cannot just because they are learned from family or community members,” the appellate court noted.

“We hold that the agency has not offered a reasoned analysis of why the statutory phrase ‘specialized knowledge’ would woodenly debar any and all knowledge acquired through one’s cultural traditions, upbringing, or ‘life experience.’”

On remand, USCIS must formulate a rule that articulates whether and when cultural knowledge can be a relevant component of specialized knowledge.   It must also articulate, if deemed appropriate, a line between actual skills and knowledge derived from an employee’s traditions and upbringing, on the one hand, and the simple status of being from a particular region on the other hand.

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