Fogo De Chao (Holdings) Inc. v. United States Department of Homeland Security

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 1, 2014 Decided October 21, 2014

No. 13-5301

FOGO DE CHAO (HOLDINGS) INC.,

APPELLANT

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET

AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01024)

Carl W. Hampe argued the cause for appellant. With him

on the brief was Steve Chasin.

Gisela A. Westwater, Senior Litigation Counsel, U.S.

Department of Justice, argued the cause for appellees. With

her on the brief were Stuart F. Delery, Assistant Attorney

General, and Aram A. Gavoor, Trial Attorney. R. Craig

Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: KAVANAUGH, MILLETT and WILKINS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

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Dissenting opinion filed by Circuit Judge KAVANAUGH.

MILLETT, Circuit Judge: Fogo de Chao (Holdings), Inc.,

operates numerous Brazilian steakhouse restaurants, known as

churrascarias, in Brazil and the United States. According to

Fogo de Chao, a critical component of its success has been the

employment in each of its restaurants of genuine gaucho

chefs, known as churrasqueiros, who have been raised and

trained in the particular culinary and festive traditions of

traditional barbecues in the Rio Grande do Sul area of

Southern Brazil.

But of late, Fogo de Chao’s efforts to bring authentic

Brazilian churrasqueiro chefs into its United States

restaurants have hit a legal roadblock. Federal immigration

law provides what are known as L-1B visas to qualifying

multinational businesses, which permit them to temporarily

transfer foreign employees possessing “specialized

knowledge” into the United States. From 1997 to 2006, the

Department of Homeland Security granted Fogo de Chao over

200 L-1B visas for its churrasqueiros. In 2010, Fogo de

Chao sought to transfer another churrasqueiro chef, Rones

Gasparetto, to the United States, reasoning that his distinctive

cultural background and extensive experience cooking and

serving meals in the churrasco style constitute “specialized

knowledge.” The Administrative Appeals Office within the

Department of Homeland Security concluded, however, that

Gasparetto’s cultural background, knowledge, and training

could not, as a matter of law, constitute specialized

knowledge. Unable to discern either (i) a sufficiently

reasoned path in the Appeals Office’s strict bar against

culturally based skills, or (ii) substantial evidence supporting

its factual finding that Gasparetto did not complete the

company training program, we reverse and remand the district

court’s grant of summary judgment to the government.

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I. BACKGROUND

A. Statutory and Regulatory Framework

1. In 1970, Congress amended the Immigration and

Nationality Act, 8 U.S.C. §§ 1101 et seq., to create a

nonimmigrant visa program for qualifying employees of

multinational companies that are being transferred to the

United States. See Pub. L. No. 91-225, 84 Stat. 116, 116

(1970). As amended, the Act provides that a temporary,

nonimmigrant visa may be issued to an alien who, after being

employed continuously by the sponsoring employer for at

least one year in the three years preceding his or her

application, seeks to enter the United States to continue

working for that employer (or an affiliate) “in a capacity that

is managerial, executive, or involves specialized

knowledge[.]” 8 U.S.C. § 1101(a)(15)(L). 1 A visa granted to

an employee whose work entails specialized knowledge is

commonly referred to as an L-1B visa, while a visa for

managerial or executive employees is known as an L-1A visa.

The “specialized knowledge” L-1B visa is at issue in this

case.

The 1970 Act did not define “specialized knowledge,”

and the term has been subject to varying regulatory

1

The statutory provision, in relevant part, defines a “nonimmigrant

alien[]” eligible for a visa as “an alien 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 is managerial, executive, or

involves specialized knowledge[.]” 8 U.S.C. § 1101(a)(15)(L).

4

definitions. By 1987, the formal regulatory definition of

“specialized knowledge” was “knowledge possessed by an

individual whose advanced level of expertise and proprietary

knowledge of the organization’s product, service, research,

equipment, techniques, management, or other interests of the

employer are not readily available in the United States labor

market.” 52 Fed. Reg. 5738, 5752 (Feb. 26, 1987) (codified

at 8 C.F.R. § 214.2(l)(1)(ii)(D) (1988)).

In 1990, Congress displaced that regulation with its own

statutory definition, providing that an employee has

specialized knowledge “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.” 8 U.S.C. § 1184(c)(2)(B);

see also Immigration Act of 1990, Pub. L. No. 101-649,

§ 206(b)(2)(B), 104 Stat. 4978, 5023.

The Immigration and Naturalization Service has since

promulgated a regulatory definition of “specialized

knowledge” that essentially tracks the new statutory language,

defining it 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). 2

2

The Homeland Security Act of 2002, Pub. L. No. 107-296, 116

Stat. 2135, abolished the Immigration and Naturalization Service

and transferred its authority to the Secretary of Homeland Security

and two divisions within the Department of Homeland Security:

the Bureau of Immigration and Customs Enforcement and the

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2. Under the current regulations, a company seeking to

classify an alien as eligible for an L-1B visa must file a

petition with the Secretary. 8 C.F.R. § 214.2(l)(2)(i).

Included with the petition must be:

(ii) Evidence that the alien will be employed in [a] * * *

specialized knowledge capacity, including a detailed

description of the services to be performed[;]

(iii) Evidence 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) Evidence 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.

Id. § 214.2(l)(3).

While no other regulatory definition of “specialized

knowledge” has been promulgated, internal agency

memoranda have provided additional guidance. Specifically,

in March 1994, James Puleo, the Acting Executive Associate

Commissioner of the Immigration and Naturalization Service,

issued a memorandum elaborating on the proper interpretation

of “specialized knowledge.” The Puleo Memorandum

counseled that common dictionary definitions of the key

Bureau of Citizenship and Immigration Services. See Clark v.

Martinez, 543 U.S. 371, 374 n.1 (2005).

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terms “special” and “advanced” should be used. “Special”

thus signifies “surpassing the usual; distinct among others of a

kind” or “distinguished by some unusual quality; uncommon;

noteworthy.” Memorandum of James A. Puleo, Acting

Executive Assoc. Comm’r, Immigration and Naturalization

Service, Interpretation of Special Knowledge at 1 (March 9,

1994), reproduced in J.A. 42 (quoting WEBSTER’S II NEW

RIVERSIDE UNIVERSITY DICTIONARY and WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY). While an employee’s

knowledge need not be proprietary or unique, the Puleo

Memorandum explained, the knowledge must still be different

or uncommon and not generally found in the particular

industry. Id. Knowledge might be found to be special where,

for example, “[t]he alien beneficiary has knowledge of a

foreign firm’s business procedures or methods of operation”

such that “the United States firm would experience a

significant interruption of business in order to train a United

States worker to assume those duties.” Id. at 2, J.A. 43. 3

In 2004, Fujie Ohata, the Director of Service Center

Operations for United States Citizenship and Immigration

Services (“the Service”), issued another memorandum

providing guidance on whether and when chefs’ or specialty

cooks’ skills would qualify as “specialized knowledge.”

Memorandum of Fujie O. Ohata, Director, Service Center

Operations, United States Citizenship and Immigration

Services, Interpretation of Specialized Knowledge for Chefs

and Specialty Cooks Seeking L-1B Status (Sept. 9, 2004),

3

“Advanced” knowledge, in turn, signifies “highly developed or

complex; at a higher level than others” or “beyond the elementary

or introductory; greatly developed beyond the initial stage.” Puleo

Memorandum at 2, J.A. 43 (quoting WEBSTER’S II NEW RIVERSIDE

UNIVERSITY DICTIONARY and WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY).

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reproduced in J.A. 48–51. The Ohata Memorandum advised

that “Chefs or Specialty Cooks generally are not considered to

have ‘specialized knowledge’ for L-1B purposes.” Id. at 1,

J.A. 48. The relevant question, the Ohata Memorandum

elaborated, is “not only how skilled the chef is and whether or

not his or her skills are common to other chefs, but also the

role the chef plays within the petitioning organization and the

impact his or her services would have on the operations of the

U.S.-based affiliate.” Id at 2, J.A. 49. A chef’s “ancillary”

duties, such as singing in a themed restaurant, may also give

rise to specialized knowledge. Id. The inquiry turns on an

assessment of “the length and complexity of in-house training

required to perform such duties” in order to determine “the

amount of economic inconvenience, if any, the restaurant

would undergo were it required to train another individual to

perform the same duties.” Id.

Echoing the Puleo Memorandum, Ohata stressed that, to

qualify as “specialized knowledge” of the relevant product or

process, the employee’s skill “must be of the sort that is not

generally found in the particular industry, although it need

not be proprietary or unique.” Ohata Memorandum at 2, J.A.

49. In that regard, “[r]ecipes and cooking techniques that can

be learned by a chef through exposure to the recipe or

cooking techniques for a brief or moderate period of time

generally do not constitute specialized knowledge.” Id. at 3,

J.A. 50.

Ultimately, then, the petitioner’s burden is to show

through probative evidence that the proposed visa

beneficiary’s knowledge is “(a) uncommon or not generally

shared by practitioners in the alien’s field of endeavor; (b) not

easily or rapidly acquired, but is gained from significant

experience or in-house training, and (c) is necessary and

8

relevant to the successful conduct of the employer’s

operations.” Ohata Memorandum at 4, J.A. 51.

B. Factual Background

Fogo de Chao owns numerous upscale churrascarias, or

Brazilian steakhouses, that focus on the churrasco, a

traditional festive style of both preparing and serving meat

derived from the gaucho culture of the Rio Grande do Sul

region of southern Brazil. Following its success in Brazil,

Fogo de Chao entered the United States market in 1997, and

now has restaurants in sixteen cities here.

Fogo de Chao seeks to recreate for its customers an

authentic churrascaria experience, and it does so by

employing at each restaurant a certain number of Brazilian-

born churrasqueiros, or “gaucho chefs,” who learned the

churrasco style of cooking and service firsthand both growing

up in the Rio Grande do Sul region and through training and

at least two years of experience in Fogo de Chao’s Brazilian

restaurants. Those churrasqueiros provide both direct

customer service as chefs and train American employees to

serve as churrasqueiro chefs. According to an affidavit filed

by Fogo de Chao’s Chief Executive Officer, only those native

Brazilian churrasqueiros, who come with years of firsthand

experience in the churrasco tradition and have survived Fogo

de Chao’s own selection process, have proven capable of

performing all of the culinary and service-related duties that

Fogo de Chao requires of its churrasqueiro chefs,

notwithstanding the significant amount of training provided to

the company’s other employees. Fogo de Chao has thus

petitioned hundreds of times before for L-1B “specialized

knowledge” visas for its Brazilian churrasqueiros to transfer

to its U.S. restaurants. Over 200 of those petitions were

granted prior to the petition at issue here.

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The present appeal arises out of Fogo de Chao’s

application in January 2010 for an L-1B visa for Rones

Gasparetto, a Brazilian churrasqueiro. Fogo de Chao filed

with that petition a cover letter, signed by the company’s

Chief Executive Officer, declaring that Gasparetto had been

employed as a “Churrasqueiro Chef” in Sao Paulo, Brazil

since May 1, 2007, and had worked in the same capacity in

another of Fogo de Chao’s Brazilian affiliates from June 2006

through February 2007. The letter outlined the exacting

selection process by which Gasparetto had been chosen to

enter Fogo de Chao’s churrasqueiro training program, his

successful completion of that program, and the various duties

relating to food preparation and service that he was able to

perform as a result of both that training and his rural

upbringing participating in the churrasco tradition in southern

Brazil. Fogo de Chao submitted a number of exhibits as well,

including Gasparetto’s passport, a year of his paystubs from a

Fogo de Chao affiliate in Brazil, descriptions of Fogo de

Chao’s corporate structure and operations in the United

States, and information, including several expert reports,

discussing (i) the distinguishing features of Fogo de Chao’s

business model and training program, (ii) the churrasco

method and the region of Brazil from which it is drawn, and

(iii) the distinct skills required of the company’s

churrasqueiro chefs.

In February 2010, the Service issued a Request for

Evidence seeking additional information on (1) Fogo de

Chao’s organizational structure, (2) the number of persons

employed in Gasparetto’s position at the restaurant in the

United States to which Fogo de Chao sought to transfer him,

(3) the manner in which his proposed duties had previously

been performed in that restaurant, (4) the features

distinguishing Gasparetto’s duties and training from those of

Fogo de Chao’s other employees, (5) the nature of any

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training he was to provide, and (6) the impact on Fogo de

Chao’s business if it could not transfer Gasparetto. Fogo de

Chao responded by providing additional information.

Shortly thereafter, the Director of the Vermont Service

Center denied Fogo de Chao’s petition, finding that

Gasparetto did not appear to be employed in a specialized-

knowledge capacity. Acknowledging Fogo de Chao’s claim

that Gasparetto’s position requires someone with experience

growing up in the gaucho culture and the churrasco tradition

of southern Brazil, the Director nonetheless concluded that

the company had not shown “that these skills are so

uncommon or complex that other chefs in the industry could

not master them within a reasonable period of time.” J.A.

390.

C. Procedural History

1. Fogo de Chao filed a complaint in the United States

District Court for the District of Columbia against the Service,

the Department of Homeland Security, and other federal

defendants (collectively, “the Department”) challenging the

denial of the petition. While the case was pending, the

Service reopened the proceedings on its own motion in

October 2010, and the district court stayed its proceedings.

In the reopened administrative case, Fogo de Chao

submitted both a legal memorandum and additional exhibits,

including an affidavit from Fogo de Chao’s Chief Executive

Officer further detailing the company’s distinct business

model, outlining the duties its churrasqueiro chefs must be

able to perform, and explaining that the company thus far has

been unable to teach non-Brazilian employees to successfully

execute all of those skills. Specifically, of the seventeen

duties required of Fogo de Chao’s churrasqueiros, the

affidavit indicated that four of the duties could not be taught

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to non-Brazilian employees within a reasonable time and six

could not be taught at all no matter how much training was

given. Other documents submitted at this time included

Gasparetto’s curriculum vitae, a letter from a Brazilian

nutritionist who had interviewed him and evaluated his ability

to fill the churrasqueiro role, and additional information on

the company’s hiring process and the manner in which newly

hired employees enter Fogo de Chao’s training program.

The Vermont Service Center Director again denied the

petition. The Director concluded that Fogo de Chao had not

shown that its training program imparted specialized

knowledge or that its methods differed from those of other

Brazilian churrascaria restaurants in the United States. The

Director also ruled that Fogo de Chao had failed to provide

sufficient details about Gasparetto’s work in Fogo de Chao’s

Brazilian restaurants, information on what distinguished his

knowledge from that of Fogo de Chao’s other employees, or

sufficient evidence of his completion of Fogo de Chao’s

training program. The Director then certified his decision to

the Service’s Administrative Appeals Office as a case

involving “an unusually complex or novel issue of law or

fact.” J.A. 571.

2. The Appeals Office affirmed the Director’s decision.

First, the Appeals Office concluded that the petition could be

denied solely on the grounds that (i) Gasparetto’s culinary

skills, knowledge of his native regional culture, and

“authenticity” gained through his life experiences could not,

as a matter of law, constitute “special knowledge of the

petitioner’s product,” J.A. 665, and (ii) Fogo de Chao failed to

12

establish that Gasparetto had completed two years of training

and one year of employment as a churrasqueiro chef. 4

Second, the Appeals Office concluded that Fogo de Chao

had not established that the churrasqueiro position generally

required specialized knowledge, relying again on its

conclusion that knowledge of the culture and culinary

traditions of the Rio Grande do Sul region of Brazil could not

constitute specialized knowledge. The Appeals Office added

that Fogo de Chao had also failed both to distinguish the

knowledge and skills of its churrasqueiros from those of

similar employees in the churrascaria industry and to

demonstrate sufficiently that it could not train employees

hired in the United States to perform that role.

3. Following the Appeals Office decision, proceedings

before the district court resumed, and the district court

subsequently granted the Department’s motion for summary

judgment. In so ruling, the district court deferred, under

Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), to what it viewed as the Appeals

Office’s regulatory interpretation of “specialized knowledge.”

See Fogo De Chao Churrascaria, LLC v. Department of

Homeland Security, 959 F. Supp. 2d 32, 44–49 & n.5 (D.D.C.

2013). The court further concluded that the Appeals Office’s

determination that Fogo de Chao had failed to submit

sufficient documentation regarding Gasparetto’s completion

of its training program rendered harmless any error the

agency had committed in its treatment of Gasparetto’s cultural

knowledge. Id. at 46–47. Finally, the district court rejected

Fogo de Chao’s claims that the agency had impermissibly

4

For those same reasons, the Appeals Office also found that Fogo

de Chao had not demonstrated that Gasparetto had “advanced”

knowledge that would qualify him for the L-1B visa.

13

departed from precedent without going through notice-and-

comment rulemaking and had prejudged Fogo de Chao’s

petition. Id. at 49–51.

Fogo de Chao timely filed this appeal.

II. STANDARD OF REVIEW

We review the district court’s grant of summary

judgment de novo, applying the familiar Administrative

Procedure Act standard that “requires us to set aside agency

action that is ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’” Jicarilla Apache

Nation v. Department of Interior, 613 F.3d 1112, 1118 (D.C.

Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)); see also, e.g.,

Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir.

1991) (same). The scope of our review is narrow, and “a

court is not to substitute its judgment for that of the agency.”

Judulang v. Holder, 132 S. Ct. 476, 483 (2011) (quoting

Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm

Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983)). Rather,

we consider only “whether the decision was based on a

consideration of the relevant factors and whether there has

been a clear error of judgment.” Judulang, 132 S. Ct. at 484

(quoting State Farm, 463 U.S. at 43); see also Republic of

Transkei, 923 F.2d at 177 (same).

We generally accord substantial deference to an agency’s

interpretation of both a statute it administers and its own

implementing regulations. See, e.g., Fox v. Clinton, 684 F.3d

67, 75 (D.C. Cir. 2012) (deference to statutory interpretation)

(citing Chevron, 467 U.S. 837); Decker v. Northwest Envtl.

Defense Ctr., 133 S. Ct. 1326, 1337 (2013) (deference to

regulatory interpretation unless it “is plainly erroneous or

inconsistent with the regulation”) (citations omitted).

14

No deference is due, however, to an agency’s

interpretation of its own regulation when, “instead of using its

expertise and experience to formulate a regulation, it has

elected merely to paraphrase the statutory language.” In re

Polar Bear Endangered Species Act Listing & Section 4(d)

Rule Litig., 709 F.3d 1, 18 (D.C. Cir. 2013) (quoting Gonzales

v. Oregon, 546 U.S. 243, 257 (2006)). Rather, where “the

underlying regulation does little more than restate the terms of

the statute itself[,]” the agency has left the statute as it found

it, adding nothing material to Congress’s language and

providing nothing of its own in which to ground an

interpretation to which a court might defer. Gonzales, 546

U.S. at 257 (citing Auer v. Robbins, 519 U.S. 452 (1997)).

That is what has happened here where the agency’s

“specialized knowledge” regulation mirrors the statutory text.

The Immigration and Nationality Act defines “specialized

knowledge” as “a special knowledge of the company product

and its application in international markets or * * * an

advanced level of knowledge of processes and procedures of

the company.” 8 U.S.C. § 1184(c)(2)(B). The regulation, in

turn, recites that “specialized knowledge” means “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) (emphases added). The

regulation thus largely parrots, rather than interprets, the key

statutory language.

To be sure, there are stray differences between the

statutory and regulatory definitions. But that provides no

basis for judicial deference because “[t]he Government does

not suggest that its interpretation turns on any difference

15

between the statutory and regulatory language.” Gonzales,

546 U.S. at 257. Instead, because the regulation “gives little

or no instruction,” id., 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.

Nor does the Appeals Office’s interpretation of the

statutory language in a non-precedential ruling trigger

Chevron deference, as the government’s counsel openly

conceded at oral argument, see Oral Arg. Tr. 25:13–20. Cf.

International Internship Program v. Napolitano, 718 F.3d

986, 987 n.1 (D.C. Cir. 2013) (reserving that question).

There is no dispute in this case that Congress, in the

Immigration and Nationality Act, has “delegated authority to

the agency generally to make rules carrying the force of law.”

United States v. Mead Corp., 533 U.S. 218, 226–227 (2001). 5

5

This deference point is uncontested and, in any event, would not

be determinative of the Chevron inquiry here. Accordingly, we

need not decide whether the shared statutory responsibility of the

Attorney General and the components of the Department of

Homeland Security in addressing legal questions relating to the

adjudication of petitions for nonimmigrant visa classifications may

preclude a finding that Congress has delegated such authority to the

Department of Homeland Security or its components acting alone.

See 8 U.S.C. § 1103(a)(1) (providing that, while the Secretary of

Homeland Security is granted administrative and enforcement

authority in connection with the laws relating to the immigration

and naturalization of aliens, “determination and ruling by the

Attorney General with respect to all questions of law shall be

controlling”); 8 C.F.R. § 103.3(c) (providing roles for both the

Secretary of Homeland Security and the Attorney General in

designating Service decisions as precedents).

16

To trigger deference, however, the agency must also show

“that the agency interpretation claiming deference was

promulgated in the exercise of that authority,” Mead, 533

U.S. at 227, which did not happen here. The Appeals Office

decision, and any legal interpretations contained within it,

were the product of informal adjudication within the Service,

rather than a formal adjudication or notice-and-comment

rulemaking. The absence of those “relatively formal

administrative procedure[s]” that “tend[] to foster the fairness

and deliberation that should underlie a pronouncement” of

legal interpretation, Mead, 533 U.S. at 230, weighs against the

application of Chevron deference, see id. at 230–231. Nor is

the Appeals Office’s decision marked by the qualities that

might justify Chevron deference in the absence of a formal

adjudication or notice-and-comment rulemaking. See

Barnhart v. Walton, 535 U.S. 212, 222 (2002) (applying

Chevron deference despite less formal rulemaking procedures

because of “the careful consideration the Agency ha[d] given

the question over a long period of time” and other factors);

Fox, 684 F.3d at 77–78 (no deference to agency letter that

failed to meet Barnhart criteria).

Moreover, the expressly non-precedential nature of the

Appeals Office’s decision conclusively confirms that the

Department was not exercising through the Appeals Office

any authority it had to make rules carrying the force of law.

Cf. Martinez v. Holder, 740 F.3d 902, 909–910 (4th Cir.

2014), as revised (Jan. 27, 2014) (holding non-precedential

opinions issued by one member of the Board of Immigration

Appeals are not entitled to Chevron deference). 6 That is

6

See also Dhuka v. Holder, 716 F.3d 149, 156 (5th Cir. 2013)

(same conclusion for three-member Board of Immigration Appeals

decisions not designated precedential); Mei Juan Zheng v. Holder,

672 F.3d 178, 184 (2d Cir. 2012) (same); Arobelidze v. Holder, 653

17

because the decision’s “binding character as a ruling stops

short of third parties” and is “conclusive only as between [the

agency] itself and the [petitioner] to whom it was issued.”

Mead, 533 U.S. at 233; see 8 C.F.R. § 103.2(b)(16)(ii) (“A

determination of statutory eligibility shall be based only on

information contained in the record of proceeding which is

disclosed to the applicant or petitioner[.]”); id. § 103.3(c)

(designating specific procedure, not followed here, by which

the Secretary of Homeland Security or designated officials

within the department may, with the concurrence of the

Attorney General, designate an Appeals Office decision as

precedential). Having disclaimed any intent to set a rule of

law with any force beyond the petition at issue, the Appeals

Office cannot—and tellingly does not—now claim to have

promulgated its decision as an exercise of any authority it had

to make such rules.

The unsuitability of the Chevron model of review does

not mean that no deference is due, however. The

Department’s interpretation of the statute is “‘entitled to

respect’ * * * to the extent it has the ‘power to persuade.’”

Gonzales, 546 U.S. at 256 (quoting Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944)). “The weight of such a judgment

in a particular case will depend upon the thoroughness evident

in [the agency’s] consideration, the validity of its reasoning,

its consistency with earlier and later pronouncements, and all

those factors which give it power to persuade, if lacking

power to control.” Id. at 268 (quoting Skidmore, 323 U.S. at

F.3d 513, 520 (7th Cir. 2011) (no Chevron deference for non-

precedential, single-member Board of Immigration Appeals

decisions); Carpio v. Holder, 592 F.3d 1091, 1097 (10th Cir. 2010)

(same); Quinchia v. Attorney General, 552 F.3d 1255, 1258 (11th

Cir. 2008) (same); Garcia-Quintero v. Gonzales, 455 F.3d 1006,

1012–1013 (9th Cir. 2006) (same).

18

140)). That, accordingly, is the standard of review that we

apply in this case. 7

III. SUBJECT-MATTER JURISDICTION

Although neither party contests the subject-matter

jurisdiction of this court or the court below, we are obligated

to assure ourselves that such jurisdiction exists. See Wagner

v. FEC, 717 F.3d 1007, 1009–1010 (D.C. Cir. 2013).

The petitioner here brought suit in the district court

pursuant to 28 U.S.C. § 1331. This court has previously

recognized that the general federal-question statute confers

jurisdiction over a similar challenge brought under the

Immigration and Nationality Act. See Abourezk v. Reagan,

785 F.2d 1043, 1050 (D.C. Cir. 1986) (Administrative

Procedure Act challenge to the State Department’s denial of

visas to invited speakers). The question is whether that grant

of jurisdiction was subsequently withdrawn by 8 U.S.C.

§ 1252(a)(2)(B)(ii), which provides that:

Notwithstanding any other provision of law * * *, no

court shall have jurisdiction to review * * * any other

decision or action of the Attorney General or the

Secretary of Homeland Security the authority for which

is specified under [8 U.S.C. §§ 1151–1381] to be in the

discretion of the Attorney General or the Secretary of

Homeland Security, other than the granting of relief

under section 1158(a) of this title [relating to asylum].

7

Since Fogo de Chao does not challenge the interpretations of the

“specialized knowledge” standard contained in the Puleo and Ohata

memoranda, we need not consider what level of deference, if any, is

due to those memoranda’s legal interpretations.

19

We hold that the Appeals Office’s denial of an L-1B visa

request under 8 U.S.C. § 1184(c)(1) does not represent a

“decision or action * * * the authority for which is specified

* * * to be in the discretion of the Attorney General or the

Secretary of Homeland Security,” within the meaning of that

jurisdictional bar. In Kucana v. Holder, 130 S. Ct. 827

(2010), the Supreme Court explained that Section

1252(a)(2)(B)(ii) “speaks of authority ‘specified’—not merely

assumed or contemplated—to be in the Attorney General’s

discretion,” and “‘[s]pecified’ is not synonymous with

‘implied’ or ‘anticipated,’” id. at 834 n.10. Instead, “‘the

language of the statute in question must provide the

discretionary authority’ before the bar can have any effect.”

Soltane v. Department of Justice, 381 F.3d 143, 146 (3d Cir.

2004) (Alito, J.) (quoting Spencer Enterprises, Inc. v. United

States, 345 F.3d 683, 689 (9th Cir. 2003)).

Here, there is no such statutory grant of discretionary

authority in connection with the Service’s review of petitions

for the L-1B visa classification. Congress nowhere textually

assigned such judgments to the Secretary of Homeland

Security’s or the Attorney General’s sole discretion. Instead,

the statute mandates that visa determinations “shall be

determined by the Attorney General * * * upon petition of the

importing employer,” 8 U.S.C. § 1184(c)(1) (emphasis

added), and the criteria for such decisions are laid out in the

statute, including specifically a definition of “specialized

knowledge,” id. § 1184(c)(2)(B). See Soltane, 381 F.3d at

147 (no jurisdictional bar because the relevant definition of

“special immigrant” was “fairly detailed and specific, with no

explicit reference to ‘discretion’”); Spencer Enterprises, 345

F.3d at 691 (no jurisdictional bar to challenging a visa denial

under the immigrant investor program because the statute

“both mandates issuance of such visas and sets out a series of

standards for eligibility that the visa petitioner must meet”)

20

(citation omitted); id. (noting that 8 U.S.C. § 1153(b)(5)(A)

provides that “[v]isas shall be made available * * * to

qualified immigrants seeking to enter the United States for the

purpose of engaging in a new commercial enterprise”).

In sum, because the relevant provision of the Immigration

and Nationality Act does not commit the decision whether to

grant an L-1B petition to the independent discretion of the

Attorney General or the Secretary of Homeland Security, and

because Congress legislated statutory criteria to be applied in

deciding such petitions, the district court had jurisdiction to

hear Fogo de Chao’s challenge. This court, in turn, has

jurisdiction to hear Fogo de Chao’s timely appeal under 28

U.S.C. § 1291.

IV. THE APPEALS OFFICE DECISION

Fogo de Chao raises numerous objections to both the

legal standard applied by the Appeals Office and its

application of the law to the facts in this record. With respect

to Fogo de Chao’s challenges to the legal standard, we agree

that the Appeals Office erred in adopting a categorical

prohibition on any and all culturally acquired knowledge

supporting a “specialized knowledge” determination. We

further agree that the Appeals Office’s conclusion that Fogo

de Chao had failed to establish that Gasparetto completed the

company’s training program is unsupported by substantial

evidence. In light of those errors, it is not clear that the

Appeals Office would have resolved other challenged aspects

of its decision in the same fashion or would have found the

other bases for the decision sufficient alone to warrant denial

of Fogo de Chao’s petition. Accordingly, consistent with our

limited role in reviewing agency action, we reverse the district

court’s judgment and remand with instructions to vacate the

Appeals Office’s order and remand for further proceedings

21

consistent with this opinion. See INS v. Orlando Ventura, 537

U.S. 12, 16–17 (2002) (applying the “ordinary remand” rule).

A. The “Specialized Knowledge” Legal Standard

Fogo de Chao levels three distinct challenges to the

Appeals Office’s legal interpretation of the “specialized

knowledge” test. We agree with Fogo de Chao that the

agency’s conclusion regarding the categorical irrelevance of

culturally acquired knowledge was insufficiently reasoned to

be sustained. We reject the remainder of Fogo de Chao’s

legal challenges on the current record.

1. The Relevance of Knowledge and Skills Gained

Through Culture to the “Specialized Knowledge”

Test

In denying the Gasparetto visa, the Appeals Office

concluded that “[t]he inherent knowledge a person gains as a

result of his or her upbringing, family and community

traditions, and overall assimilation to one’s native culture

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.” J.A. 663. Fogo de

Chao challenges that categorical rule as unsupported by the

Puleo and Ohata memoranda or any other previous

administrative precedent and ungrounded in statutory text or

purpose. 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,” J.A. 662, or how that rule comports with the

prior agency guidance that the Appeals Office purported to

follow.

22

As an initial matter, nothing in the statute itself textually

excludes all culturally acquired knowledge as a form of

“specialized knowledge,” 8 U.S.C. § 1184(c)(2)(B). In fact,

cultural knowledge appears to fit naturally within the

dictionary definitions that the Puleo Memorandum endorsed

for construing the terms “special” and “advanced.”

Knowledge and skills associated with a particular culture may

be “limited to a relatively small population or geographic

location,” J.A. 663, such that they are “uncommon” or

“distinguished by some unusual quality,” Puleo Memorandum

at 1, J.A. 42. Moreover, knowledge gained through an

employee’s upbringing or “life experience,” like other forms

of specialized knowledge, may take years to acquire such that

it is “beyond the elementary or introductory” and “greatly

developed beyond the initial stage.” Id. at 2, J.A. 43. Finally,

knowledge acquired over time through cultural exposure

combined with first-hand experience may distinguish an

applicant from other employees who cannot learn without

extensive training the skills, practices, instincts, and

contextual judgments that the applicant has amassed and

practiced since childhood. Such knowledge may naturally be

thought of as “surpassing the usual[,] distinct among others of

a kind,” id. at 1, J.A. 42, or “at a higher level than others,” id.

at 2, J.A. 43.

Rather than address the dictionary definitions embraced

by the agency’s Puleo Memorandum, the Appeals Office tried

to tether its exclusion of such cultural knowledge to the

requirement that “specialized knowledge” be “of the company

product and its application in international markets,” or “of

processes and procedures of the company.” J.A. 663 n.6

(quoting 8 U.S.C. § 1184(c)(2)(B)). But nothing in that

language broadly forecloses all forms of cultural knowledge,

as the record here illustrates.

23

For example, Fogo de Chao came forward with evidence

that its product itself is defined by the cuisine, serving style,

and culinary ethos associated with a particular cultural

practice in Southern Brazil. According to Fogo de Chao’s

submissions, the performance of cultural gaucho skills and an

ability to share a comprehensive understanding of churrasco

traditions with customers are indispensable aspects of the

“company product.” See Ohata Memorandum at 2, J.A. 49.

In that regard, Fogo de Chao identified a number of concrete

skills vital to its churrascaria business that relate to the

preparation, presentation, and service of numerous types of

meat, all of which “originate in the gaucho lifestyle of rural

southern Brazil, and are passed on from generation to

generation.” J.A. 308. Those skills include, for example, the

ability to be simultaneously responsible for (i) preparing and

cooking five to six skewers of meat on an open grill, (ii)

circulating through the dining room to carve meat for guests,

(iii) educating those guests about both the cuts of meat being

served and gaucho culinary and cultural traditions, and (iv)

monitoring the estimated future demand for food over the

course of the evening. J.A. 462. There is, moreover,

uncontroverted evidence in the record that Gasparetto gained

the knowledge, skill levels, and judgments specifically

relevant to his duties at Fogo de Chao in material part through

experience gained growing up in the south of Brazil and

participating frequently in the churrasco tradition. See J.A.

540–541. Fogo de Chao thus provided evidence that the

“chef plays a [critical] role within the petitioning

organization,” just as the Ohata Memorandum contemplated,

Ohata Memorandum at 2, J.A. 49. Against that backdrop, the

Appeals Office pointed to nothing in the statutory or

regulatory text that explained closing its eyes completely to

the entire category of culturally acquired knowledge and skills

and their relevance to Fogo de Chao’s product.

24

Instead, the Appeals Office highlighted the existence of

other “cultural” nonimmigrant visa classifications in the

statute, and reasoned that the absence of an express reference

to culture in the L-1B visa program indicates a congressional

intent to pigeonhole knowledge with a “cultural component”

into those two contexts. See J.A. 663 & n.6 (citing 8 U.S.C.

§ 1101(a)(15)(P)(iii) (visas for an artist or entertainer seeking

to enter the United States “to perform, teach, or coach as

* * * an artist or entertainer * * * under a commercial or

noncommercial program that is culturally unique”); 8 U.S.C.

§ 1101(a)(15)(Q) (visas for “a participant in an international

cultural exchange program” that is “for the purpose of

providing practical training, employment, and the sharing of

the history, culture, and traditions of the country of the alien’s

nationality”)); see also Fogo de Chao, 959 F. Supp. 2d at 46–

47 n.4 (discussing provisions cited by the Appeals Office).

But those provisions simply beg the question of whether,

in employing the even more textually capacious phrase

“specialized knowledge,” Congress left any room for

culturally acquired knowledge and skills to be considered as

an aspect of “specialized knowledge.” Certainly nothing in

the text of those two narrowly focused statutory provisions

suggests that Congress meant to isolate cultural

considerations to those two categories, especially since

neither has anything to do with the type of knowledge

deployed in the context of multinational business operations

that Congress focused on for the L-1B visa program.

As for the previous administrative guidance in this area,

the Appeals Office’s decision lacks any reasoned explanation

of why a chef who “entertain[s] in a particular manner,” or

has analogous “ancillary” duties, Ohata Memorandum at 2,

J.A. 49, may be considered to have specialized knowledge,

unless—and only unless—the particular entertainment

25

manner and ancillary duties involve demonstrating and

sharing culturally rooted skills and knowledge.

Further, to the extent that the Appeals Office meant to

suggest that a company must have an “ownership claim” in

knowledge before it may qualify as “specialized,” J.A. 664, it

does not square that view with the Puleo Memorandum’s

recognition that an employee qualifying for this visa may

obtain specialized knowledge through work at a different

firm, Puleo Memorandum at 3, J.A. 44, or with the Appeals

Office’s own assurance that it was not resurrecting the

proprietary knowledge standard that Congress discarded, J.A.

660.

To be sure, the Appeals Office could logically conclude

that the mere status of being from a particular region or

culture and any “authenticity” derived from that status alone

is not “knowledge” within the meaning of 8 U.S.C.

§ 1101(a)(15(L). But the Appeals Office’s wooden refusal to

even consider culturally acquired knowledge, skills and

experience as relevant to the “specialized knowledge” inquiry

went far beyond that. And nothing in the regulations or

previous guidance explains why informational knowledge,

experience, and skills that would otherwise be considered

specialized lose that status just because they were originally

acquired through one’s upbringing, family traditions, and life

experience outside the workplace.

For those reasons, we conclude that the Appeals Office

failed to ground its newly adopted, categorical exclusion of

cultural knowledge in statutory text, statutory purpose,

regulatory guidance, or reasoned analysis. This aspect of its

decision accordingly lacks the power to persuade under

Skidmore and, in light of the resulting failure to address

otherwise relevant evidence, the decision before us does not

26

appear to have been “based on a consideration of the relevant

factors,” Judulang, 132 S. Ct. at 484 (quoting State Farm, 463

U.S at 43). The agency’s judgment, moreover, “was neither

adequately explained in its decision nor supported by agency

precedent,” and thus it fails the requirement of reasoned

decisionmaking under arbitrary and capricious review as well.

See Fox, 684 F.3d at 75 (quoting Siegel v. SEC, 592 F.3d 147,

164 (D.C. Cir. 2010)).

The Service nevertheless retains substantial discretion in

considering this question anew on remand. The statutory

definition provides little guidance on this specific issue, and it

is for the agency in the first instance to formulate a rule that

articulates whether and when cultural knowledge can be a

relevant component of specialized knowledge. It likewise is

for the agency to articulate, if deemed appropriate, a line

between, on the one hand, actual skills and knowledge

derived from an employee’s traditions and upbringing, and,

on the other hand, the simple status of being from a particular

region. See Orlando Ventura, 537 U.S. at 16–17. We hold

only that, given the statutory text, the dictionary definitions

embraced by the agency, and the prior Service guidance the

agency says it was following in this case, we cannot sustain

the Appeals Office’s decision on the given rationale that

cultural knowledge is categorically irrelevant to “specialized

knowledge” without a more reasoned explanation from the

agency.

2. Consideration of Economic Inconvenience

Fogo de Chao also argues that the Appeals Office’s

decision failed to hew to the Puleo and Ohata memoranda

because the decision did not factor in the distinct economic

burden that denying Gasparetto’s transfer to the United States

would inflict on its business. In that regard, Fogo de Chao

27

presented evidence to the Service showing that each of its

churrasqueiros went through an 18- to 24-month training

period, and that even after that training period, its non-

Brazilian churrasqueiros still were not performing a majority

of the duties of the position Fogo de Chao requires.

Fogo de Chao’s assertion that such evidence should be

considered has substantial force. Agency guidance

specifically identifies the “difficult[y]” and “significant

economic inconvenience” entailed in “impart[ing]”

knowledge “to another individual,” Puleo Memorandum at 3,

J.A. 44, including whether the knowledge could be transferred

within a “reasonable period of time,” Ohata Memorandum at

3, J.A. 50, as relevant indicia of “specialized knowledge.” It

would be difficult for the Appeals Office to plausibly claim,

as it did here, to be following this guidance while dismissing

altogether the relevance of such natural proxies for economic

inconvenience as the amount of in-house training a

company’s employees would have to receive to acquire the

knowledge in question.

Moreover, 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. “An

item is special only in the sense that it is not ordinary; to

define special one must first define what is ordinary.” 1756,

Inc. v. Attorney General, 745 F. Supp. 9, 14 (D.D.C. 1990).

Both before and after the 1990 amendment, the statute itself

provided little guidance regarding the appropriate “baseline of

ordinary knowledge.” Id. at 15.

As the parties note, the Ohata Memorandum

disambiguated the inquiry at the margins by identifying the

28

“practitioners in the alien’s field of endeavor” as the relevant

comparator. But, for the most part, that simply kicks the

interpretive can down the road, leaving the scope of the

relevant “field of endeavor” undefined. 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. 8

It is not fair to say, however, that the Appeals Office

decision ignored economic-inconvenience considerations

altogether. After stating that the transferability of knowledge

“is not a determining factor,” J.A. 666, the Appeals Office

discussed how easily at least some of the ancillary skills of a

churrasqueiro chef like Gasparetto may be transferred. The

8

While Fogo de Chao does not press this point as a separate

objection, the government appears to have conceded at oral

argument that the relevant comparator for Fogo de Chao’s petitions

filed on behalf of its churrasqueiro employees may have changed

as churrascarias became more common in the United States. See

Oral Arg. Tr. 29:12–30:9. The Appeals Office decision noted that

the Vermont Service Center Director had identified the “popularity”

of churrascarias as a potential factor distinguishing this denial

from what Fogo de Chao asserted were more than 200 earlier

approvals. But it is not clear that the Appeals Office itself adopted

that reasoning. J.A. 676. And doing so would seem to contradict

the Appeals Office’s express disavowal of a “specialized

knowledge” test that turns on the availability of such knowledge in

the U.S. labor market.

29

decision thus noted that, “[w]hile knowledge specific to

Brazilian gaucho culture is not widely held by skilled chefs,

the petitioner has not supported its claim that this knowledge

is so complex that it couldn’t be mastered within a reasonable

period of time by an employee who was otherwise trained in

the churrasqueiro method.” J.A. 670.

Nevertheless, the Appeals Office’s consideration of the

difficulties Fogo de Chao says it confronts in teaching

churrasqueiro skills was infected by its legally erroneous,

categorical dismissal of culturally acquired skills and

knowledge. The Ohata Memoranda is explicit that “the length

and complexity” of training and the skills “gained from

significant experience” are important indicia of specialization.

See Ohata Memorandum at 2, 4, J.A. 49, 51. Yet the record

indicates, see supra at 22–23, that cultural acquisition is

simply an immersion form of skills-training and front-line

experience. 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.

We do not know whether the Appeals Office would

resolve this issue differently if it more directly addressed

Fogo de Chao’s economic-inconvenience evidence and

grappled specifically with the difficulties Fogo de Chao

asserted in transferring culturally rooted knowledge and

experience acquired over a decade or more to new chefs

lacking any analogous baseline set of skills or experience. In

addition, once the role of cultural knowledge is reconsidered,

the agency may weigh differently Fogo de Chao’s evidence

that the role its Brazilian churrasqueiros perform combines

both cultural and a significant period of in-house training.

For those reasons, we remand this issue to the agency for

30

further consideration in conjunction with its consideration of

the role of culturally acquired knowledge and skills.

3. Inconsistency with Prior Rulings or Precedent

Fogo de Chao raises additional challenges to the legal

standard applied by the Appeals Office, all of which are

grounded in claims of inconsistency with previous Service

decisions or other precedent. We find no merit in those

objections on this record.

First, Fogo de Chao argues that the denial of a visa in this

case was an abrupt and unexplained departure from prior

agency practice granting such visas without the cultural-

knowledge-free evidentiary demand imposed here.

Specifically, Fogo de Chao asserts that, from 1997 to 2006,

251 of its previous visa petitions for churrasqueiro chefs were

approved. The Department does not dispute that many such

petitions were approved, but counters that, during the same

time period, more than forty petitions were denied. The

Department then, as the Appeals Office did, dismisses any

previously approved petitions—to the extent they were

factually similar to the Gasparetto petition—as “material and

gross error.” J.A. 677.

The Department is correct that “[t]he mere fact that the

agency, by mistake or oversight, approved” a visa petition “on

one occasion does not create an automatic entitlement to the

approval of a subsequent petition.” Royal Siam Corp. v.

Chertoff, 484 F.3d 139, 148 (1st Cir. 2007). Yet it may be

that a pattern of visa grants of sufficient magnitude could

obligate the agency to provide a “reasoned explanation for

* * * treating similar situations differently,” ANR Pipeline Co.

v. FERC, 71 F.3d 897, 901 (D.C. Cir. 1995)—or at least

something more reasoned than confessing a decade-long

pattern of “material and gross error.”

31

We need not resolve that question here, however.

Although Fogo de Chao asserted that the prior petitions were

factually equivalent, it never introduced any evidence

corroborating that assertion. Nothing in the administrative

record reveals whether even a sampling of those cases

involved factually and legally similar contexts. Without such

a showing, we cannot conclude that the Department in fact

treated “similar situations differently.” ANR Pipeline, 71 F.3d

at 901.

Fogo de Chao’s detailed efforts to distinguish the denial

of an L-1B visa classification to another Brazilian steakhouse

chef in Boi Na Braza Atlanta, LLC v. Upchurch, No. 3:04-cv-

2007-L, 2005 WL 2372846 (N.D. Tex. Sept. 27, 2005), aff’d

194 Fed. App’x 248 (5th Cir. 2006), prove the point. Visa

decisions can be fact-intensive, and assessing the evidentiary

record behind any such determination is essential to

evaluating the reasonableness of the agency’s decision. See

IKEA US, Inc. v. Department of Justice, 48 F. Supp. 2d 22, 25

(D.D.C. 1999) (INS did not act arbitrarily and capriciously in

failing to distinguish previous visa petition’s approval where

the employer failed to submit the file to INS for its

consideration), aff’d No. 99-5159, 1999 WL 825420 (D.C.

Cir. Sept. 27, 1999). The evidentiary gap is particularly hard

to understand given that the prior visa decisions involved

Fogo de Chao’s own employees, and so presumably the

company had the necessary information at hand.

Rather than provide any of that data, Fogo de Chao

pointed to two reports as evidence of inconsistent treatment.

See Fogo de Chao Opening Br. 46–51, 62–63 (citing

DEPARTMENT OF HOMELAND SECURITY OFFICE OF THE

INSPECTOR GENERAL, REVIEW OF VULNERABILITIES AND

POTENTIAL ABUSES OF THE L-1 VISA PROGRAM (Jan. 2006),

reproduced at J.A. 496–538; UNITED STATES CITIZENSHIP

32

AND IMMIGRATION SERVICES OMBUDSMAN, ANNUAL REPORT

2010 (June 30, 2010), reproduced at Opening Br. Addendum

163–306). Neither substantiates Fogo de Chao’s claim.

To start with, the 2006 report from the Department’s

Office of the Inspector General, and in particular the portion

focusing on the L-1B visa program, simply discusses in very

general terms the 1990 legislative amendment and the

Department’s interpretive memoranda. While the report

states that the Department has “little room” to tighten the

relevant standard administratively, J.A. 506, that simply begs

the question of how that standard has been applied across

cases over the years. It thus does nothing to document an

actual shift in how factually similar petitions have been

disposed of either generally or in connection with Fogo de

Chao’s churrasqueiros specifically.

The 2010 report from the Service’s Ombudsman, for its

part, criticizes an earlier Appeals Office decision for casting

doubt on the authoritativeness of the Puleo Memorandum.

But even assuming that taking issue with an internal agency

guidance document could constitute inconsistency in any

legally relevant sense, the Appeals Office decision under

review neither cites that disapproved ruling nor discounts the

Puleo Memorandum. Quite the opposite, the Appeals Office

describes the Puleo Memorandum as the “key agency

document relating to the adjudication of L-1B specialized

knowledge visa petitions,” J.A. 650, and discusses it at length

in its analysis, see J.A. 650–651, 653–654, 663, 666.

Second, Fogo de Chao argues that the Department’s

“narrowly drawn” decision here departs from prior precedent

and legislative history that endorse a more expansive

interpretation of the “specialized knowledge” standard. That

argument suffers from the same flaw as the claim of

33

inconsistent treatment because Fogo de Chao never

demonstrates how the actual content of any prior

interpretations differed from the Appeals Office’s analysis in

a way that is relevant to this case.

All agree that the 1990 legislation broadened the

“specialized knowledge” definition in two specific respects.

It overrode agency precedent requiring that the knowledge or

skill be (i) “proprietary” and (ii) “not readily available in the

United States.” Compare 8 U.S.C. § 1184(c)(2)(B), with 52

Fed. Reg. at 5752. To the extent that the 1990 Act eliminated

those two limitations on “specialized knowledge,” it is true

that the standard became “less[]” restrictive than the

regulatory definition that immediately preceded it. Puleo

Memorandum at 1, J.A. 42. The problem for Fogo de Chao is

that being “less” restrictive in two specific respects is fully

consistent with remaining a “still high” and exacting standard,

Puleo Memorandum at 1, J.A. 42, as long as that standard

does not revive the two limitations that Congress displaced

and represents a reasonable exercise of regulatory discretion.

The legislative history on which Fogo de Chao relies

does not help its cause. A House Report stating that the

“specialized knowledge” standard was “broadened to

accommodate changes in the international arena,” H.R. Rep.

No. 723(I), 101st Cong., 2d Sess. 69 (1990), simply raises the

question of how much and in what manner the statute was

expanded. Worse still for Fogo de Chao, the Report’s list of

the changes designed to broaden the program’s reach did not

include the amendment of “specialized knowledge.” See id.

Instead, the purpose identified for the “specialized

knowledge” amendment was simply to provide “more

specificity” to the statutory term, addressing a problem that

“[v]arying interpretations” by the agency “ha[d] exacerbated.”

Id.

34

For that reason, the Service’s citation to pre-1990

precedent does not demonstrate that it applied a standard

inconsistent with the new definition, as long as those

authorities were applied consistently with superseding

congressional direction. See Brazil Quality Stones, Inc. v.

Chertoff, 531 F.3d 1063, 1070 n.10 (9th Cir. 2008) (noting in

L-1A visa context that reference to pre-1990 precedent was

appropriate where the precedent addressed an aspect of the

definition of “managerial capacity” unaffected by the 1990

Act).

For similar reasons, Fogo de Chao’s argument that the

previous visa approvals or unspecified precedent established a

“definitive interpretation” of the Service’s regulation that can

only be changed through notice-and-comment rulemaking or

formal adjudication fails. See Fogo de Chao Opening Br. 50

(quoting Alaska Professional Hunters Ass’n v. FAA, 177 F.3d

1030, 1034 (D.C. Cir. 1999)). Simply identifying outcomes,

stripped of their contextual analysis, falls far short of the

documented record of “express, direct and uniform

interpretation” by the agency required before a fixed legal

rule will be discerned. Association of American Railroads v.

Department of Transp., 198 F.3d 944, 949 (D.C. Cir. 1999).

Moreover, a definitive legal rule cannot be wrung out of a

pattern of decisions unless the decisionmaker has “the

authority to bind the agency.” Devon Energy Corp. v.

Kempthorne, 551 F.3d 1030, 1040 (D.C. Cir. 2008). No such

authority has been established here where (i) the service

centers that granted Fogo de Chao’s prior petitions lacked the

authority to bind the agency; (ii) from all that Fogo de Chao

has shown, none of the decisions on which it purports to rely

were designated precedential; and (iii) each decision was

expressly “based on the facts and circumstances of each

individual case.” J.A. 660.

35

In sum, based on the limited showing that Fogo de Chao

has made both here and before the Service, it has not met its

burden of demonstrating either an unexplained break from

past practice or settled law, or unreasoned differentiation in

the treatment of similar cases. Of course, to the extent that

the “material and gross error” that the agency indicated might

be lurking in its prior decisions was the consideration of

cultural knowledge, it remains open to the Appeals Office on

remand to consider the significance, if any, of that prior

pattern of decisionmaking.

B. The Service’s Consideration of Evidence

1. Proof of Gasparetto’s Training and Work

Experience in Brazil

Beyond its articulation of the relevant legal standard, the

Appeals Office relied on two related evidentiary conclusions

in denying the Gasparetto petition. Specifically, the Appeals

Office found that the company had failed to establish that

Gasparetto had either (a) completed the company’s mandatory

training program or (b) worked a sufficient amount of time in

the churrasqueiro role to be eligible for transfer. Fogo de

Chao disputes the agency’s factual findings on both points.

We find merit in the first of those arguments; the second point

had no apparent independent effect on the Appeals Office

decision.

First, Fogo de Chao challenges the Appeals Office’s

finding that there was insufficient evidence of Gasparetto’s

completion of the company’s internal 18- to 24-month

churrasqueiro training program, which is a prerequisite

before an employee may be considered for transfer to the

United States.

36

We agree that this conclusion is not supported by

substantial evidence. Frankly, the Appeals Office’s reasoning

on this point is hard to understand. It said in its decision that

Fogo de Chao “did not provide any documentation to confirm

the beneficiary’s completion of such training for the record,”

and that, “[w]ithout documentary evidence to support the

claim, the assertions of counsel will not satisfy the petitioner’s

burden of proof.” J.A. 664 (citations omitted). But Fogo de

Chao’s evidence of Gasparetto’s completion of the training

program went far beyond the “assertions of counsel,” and

even beyond the Chief Executive Officer’s representations in

the cover letter, which the Department now claims was the

fatal evidentiary shortfall. Department Br. 48–49.

Specifically, the uncontradicted evidence before the Appeals

Office documenting Gasparetto’s completed training included

(i) a sworn affidavit submitted by Fogo de Chao’s Chief

Executive Officer attesting that Gasparetto had “completed

the training program in Brazil,” J.A. 460, (2) Gasparetto’s

curriculum vitae stating that he “graduated and specialized as

waiter churrasqueiro” while working at a Fogo de Chao

restaurant in Sao Paulo, J.A. 541, and (3) the letter from a

Brazilian nutritionist concluding, after reviewing Gasparetto’s

curriculum vitae and information on the churrasqueiro

position at Fogo de Chao, as well as interviewing Gasparetto,

that he had the cultural background and restaurant skills

necessary to fill that position, J.A. 539. None of that

additional evidence is referenced in the Appeals Office

opinion. See J.A. 664–666, 673–674.

While the substantial-evidence standard of review is

generous, it is not boundless; it does not allow an agency to

close its eyes to on-point and uncontradicted record evidence

without any explanation at all. See Soltane, 381 F.3d at 151

(“[A]n agency is generally under at least a minimal obligation

to provide adequate reasons explaining why it has rejected

37

uncontradicted evidence.”). That is especially true here where

at no time prior to reopening the administrative case had the

Service questioned the sufficiency of Fogo de Chao’s proof

on this matter or requested further evidence.

Second, and relatedly, Fogo de Chao challenges the

Appeals Office’s conclusion that Gasparetto appears to have

held the same position throughout his time working for Fogo

de Chao, and, as a result, either was able to work as a

churrasqueiro chef without any training or had not worked a

full year in a specialized knowledge capacity before his

proposed transfer to the United States.

Fogo de Chao argues that the Appeals Office improperly

focused on Gasparetto’s job title (“waiter churrasqueiro” or

“garcon churras,” J.A. 339–350, 540), rather than on his job

duties. That argument would have more traction if Fogo de

Chao had identified evidence in the record describing when

and how Gasparetto’s duties changed as a result of the

training, even if his position remained the same. The record

nonetheless does indicate that, while the company hires

people whose preexisting skills and knowledge allow them to

perform the churrasqueiro chef duties, the training remains

necessary to some extent to instruct those chefs in how to

apply their knowledge in Fogo de Chao’s business in

international markets. There thus is no apparent

inconsistency in Gasparetto’s duties or title remaining the

same while he completed his training. In any event,

regardless of whether the inconsistency in Gasparetto’s duties

and title that the Appeals Office perceived is borne out by the

record, that gap appears to be of no moment because neither

the Appeals Office decision nor the Department on appeal

identifies that concern as an independently sufficient basis for

the denial of Gasparetto’s visa.

38

2. Additional Evidentiary Objections

Fogo de Chao raises a number of objections to the second

evidentiary pillar underlying the Appeals Office decision:

that Fogo de Chao had not established that the churrasqueiro

position itself requires “specialized knowledge.” We need not

wade into those disputes, however, because the Appeals

Office’s conclusion that culturally acquired knowledge is

categorically irrelevant to showing “specialized knowledge”

pervaded its analysis of the churrasqueiro position as well.

The Appeals Office opened this portion of its analysis by

reiterating that “the beneficiary’s knowledge of the culture

and culinary traditions of his native region of Brazil is general

knowledge,” and concluded that it is such cultural and

traditional knowledge “that equips him to be a churrasqueiro

chef in the petitioner’s industry.” J.A. 666. Similarly, Fogo

de Chao submitted an expert report explaining the business’s

critical reliance on the presence of a “core group” of Brazilian

churrasqueiros at each of its restaurants, J.A. 672, and

indicating that the Brazilian churrasqueiros have some duties

that are distinct from Fogo de Chao’s non-Brazilian

employees, see J.A. 307, 309. The Appeals Office dismissed

that evidence by reiterating its conclusion that “an alien

cannot qualify for this classification based primarily upon his

or her life experience or culture.” J.A. 672. Another expert’s

report was dismissed because “the L-1B specialized

knowledge visa has no cultural component.” Id.

While Fogo de Chao has not persuasively responded to

every evidentiary defect identified by the Appeals Office, it

did submit evidence, including an expert’s report, addressing

the distinction between its Brazilian and non-Brazilian

churrasqueiro employees. The Appeals Office disregarded

this evidence as part and parcel of its as-yet unjustified

39

categorical exclusion of cultural knowledge. Accordingly, the

Appeals Office’s factual conclusions must be remanded for

further explanation as well.

C. Alleged Prejudgment by the Service

Finally, Fogo de Chao argues that the Service’s process

as a whole was tainted because, in its view, the agency had

prejudged the Gasparetto petition. Where a single agency

decisionmaker is challenged in this fashion, we “will set aside

an official’s decision not to recuse ‘only where he has

demonstrably made up his mind about important and specific

factual questions and is impervious to contrary evidence.’”

Power v. FLRA, 146 F.3d 995, 1001–1002 (D.C. Cir. 1998)

(brackets and additional internal quotation marks omitted)

(quoting Metropolitan Council of NAACP Branches v. FCC,

46 F.3d 1154, 1165 (D.C. Cir. 1995)). Fogo de Chao has not

met that high burden.

The sole, specific evidence of alleged prejudgment

proffered is that, in opposing Fogo de Chao’s motion to refer

this case to mediation, the government’s opposition brief

referenced the Service’s “determination that these individuals

do not qualify for L-1B ‘specialized knowledge’ visas,” and

concluded that the parties “are at an impasse.” J.A. 27.

While that statement was made shortly after the agency had

reopened the proceedings on Gasparetto’s petition, it was

argumentation in a brief made in connection with settlement

discussions encompassing, on Fogo de Chao’s part, not just

the Gasparetto visa application, but also its future petitions as

well. Id. at 27–28.

Equally importantly, the sentence in question was not

authored by the Vermont Service Center Director who was

considering Fogo de Chao’s application upon reopening or by

any member of the Appeals Office. It was made by litigation

40

counsel in a court filing. That does not come close to

demonstrating that “the final decisionmaker has * * * made a

decision” in advance of further proceedings. Volvo GM

Heavy Truck Corp. v. Department of Labor, 118 F.3d 205,

214 & n.12 (4th Cir. 1997) (rejecting attempt to rely on

agency litigating position) (emphasis added).

Fogo de Chao’s reliance on Cinderella Career and

Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C. Cir.

1970), is misplaced. In that case, right after the Federal Trade

Commission staff announced its intention to appeal a decision

to the full Commission, the Commission’s Chairman gave a

speech citing two examples of unfair and deceptive practices

drawn directly from the case he was to hear. See id. at 589–

590. We concluded that the Chairman’s failure to recuse was

a denial of due process because “a disinterested observer may

conclude that the agency has in some measure adjudged the

facts as well as the law of a particular case in advance of

hearing it.” Id. at 591 (brackets omitted) (quoting Gilligan,

Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir. 1959)).

That bears no resemblance to this case. An isolated

statement in an adversarial court filing by counsel reciting the

agency’s litigation position does not remotely establish that

the actual decisionmaker has a closed mind and is impervious

to evidence or argument.

D. Appropriate Relief

In reviewing agency action under 5 U.S.C. § 706(2), this

court is required to take “due account * * * of the rule of

prejudicial error,” id. Where, as here, an agency has set out

multiple independent grounds for a decision, “we will affirm

the agency so long as any one of the grounds is valid, unless it

is demonstrated that the agency would not have acted on that

basis if the alternative grounds were unavailable.” BDPCS,

41

Inc. v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) (Roberts,

J.). Where the agency has not afforded individual weight to

the alternative grounds, however, the court may uphold the

decision only “as long as one [ground] is valid and the agency

would clearly have acted on that ground even if the other

were unavailable.” Bally’s Park Place, Inc. v. NLRB, 646

F.3d 929, 939 (D.C. Cir. 2011) (internal quotation marks

omitted) (quoting Casino Airlines, Inc. v. Nat’l Transp. Safety

Bd., 439 F.3d 715, 717 (D.C. Cir. 2006)).

Here, the insufficiently reasoned, categorical rejection of

cultural knowledge as a relevant component of “specialized

knowledge,” the blinkered review of the evidence of

Gasparetto’s training, and the agency’s reliance on its

cultural-knowledge bar in multiple aspects of its decision

preclude us from confidently saying that the agency would

have resolved the Gasparetto petition in the same manner

absent those errors. Indeed, the Appeals Office itself

described the role of cultural knowledge—“whether a

beneficiary’s life experience and inherent knowledge of his or

her own native culture and traditions can constitute

‘specialized knowledge’ within the meaning of the statutory

and regulatory definitions”—as “a critical question before

[it].” J.A 662. Given the errors identified in that ruling, along

with other missteps in its analysis, “[t]he ‘proper course’ is

* * * to ‘remand to the agency for additional investigation or

explanation.’” Soltane, 381 F.3d at 152 (quoting Florida

Power & Light Co. v. Lorion, 170 U.S. 729, 744 (1985)); see

also Love Korean Church v. Chertoff, 549 F.3d 749, 759–760

(9th Cir. 2008) (same, vacating the Appeals Office’s

decision).

Before the district court, Fogo de Chao also sought

mandamus relief and to compel agency action unlawfully

withheld or unreasonably delayed under 5 U.S.C. § 706(1).

42

While we are mindful of the length of time these proceedings

have already consumed, Fogo de Chao has not argued its

entitlement to any of those more extraordinary remedies on

appeal, nor has it demonstrated that this case warrants a

remand to the agency with specific instructions. We are

confident that the Department will handle this matter with

appropriate dispatch and, if not, Fogo de Chao can seek relief

from the district court in the first instance.

In closing, we pause to note our puzzlement over the

dissent’s disagreement. For the most part, the dissenting

opinion opposes what it perceives to be Fogo de Chao’s

“argument” (Dissent at 3)—which is not what is under review

here. And it endorses a perceived agency “position” (Dissent

at 2), but makes no effort to defend the agency’s actual

decision adopting a categorical legal rule against cultural

knowledge and skills forming any component of “specialized

knowledge.”

Specifically, the dissenting opinion “fully agree[s]” with

what it labels “the agency’s longstanding position” that “one’s

country of origin, or cultural background, does not constitute

specialized knowledge.” Dissent at 2. There is, however,

nothing “longstanding” about the cultural-knowledge bar.

Quite the opposite, it was the agency decision under review

here that gave birth to that rule. See J.A. 662 (identifying as a

“critical question” whether an employee’s “life experience

and inherent knowledge of his or her own culture and

traditions can constitute ‘specialized knowledge’”); J.A. 571

(agency determination that the case presents that “unusually

complex or novel issue”).

To the extent the dissenting opinion’s concern is simply

with the proposition that an individual’s country of origin or

background—the “authentic[ity]” of that person’s national

43

identity (Dissent at 2)—constitutes specialized knowledge, we

may well agree. It may be that the agency could reasonably

conclude that mere background and cultural identity divorced

from distinct knowledge and skills seem far removed from the

concept of “specialized knowledge.” See supra at 25–26. But

under settled principles of administrative law, it is for the

agency to make such a judgment in the first instance, rather

than for the dissent to write it without any citation to the

actual agency decision under review and then singlehandedly

declare it the agency’s own “position” (Dissent at 2). See,

e.g., Calpine Corp. v. FERC, 702 F.3d 41, 46 (D.C. Cir. 2012)

(“[I]t is axiomatic that agency decisions may not be affirmed

on grounds not actually relied upon by the agency.”); Otay

Mesa Property, L.P. v. Department of Interior, 646 F.3d 914,

918 (D.C. Cir. 2011) (noting that, if a particular conclusion in

fact served as the agency’s basis for arriving at a decision

under review, the agency “must say so in its agency decision

and justify that determination”).

Perhaps, instead, the dissenting opinion means to

embrace the agency’s categorical rule woodenly excluding

any and all knowledge or skills acquired by an employee

solely because those skills and knowledge were learned from

family or community rather than in-company trainers. But in

so doing, the dissenting opinion fails to identify what in the

“immigration statutes as written” (Dissent at 4) or the

articulated reasoning of the agency decision makes the source

of specialized knowledge singlehandedly dispositive. It thus

remains a mystery after reading the dissent why (for example)

a chef “singing or entertaining in a particular manner” in a

themed restaurant, Ohata Memorandum at 2, J.A. 49, may

have specialized knowledge if that ability to entertain came

from in-house training, but is categorically disqualified if the

same knowledge derives from a decade or more of actual life

experience learning and performing those skills.

44

The dissenting opinion separately objects that the

majority opinion makes an unwarranted evidentiary judgment

by “say[ing] * * * that Fogo de Chao may have put forth

sufficient evidence that American chefs could not be trained

to do these jobs within a reasonable amount of time.” Dissent

at 4. As the portion of the majority opinion that the dissenting

opinion cites demonstrates, however, no such sweeping

evidentiary judgment has been made. We hold only that the

agency must actually apply its own legal test and itself

address directly whether or not Fogo de Chao’s evidence of

training difficulties demonstrated an inability to train

domestic workers within a “reasonable period of time,” Ohata

Memorandum at 3, J.A. 50, rather than using its legally

erroneous categorical rule to detour around the reasonable-

training issue. See supra at 28-30, 38-39, 40-41. 9

Moreover, if this case were really just about whether

“American chefs either can’t learn to cook or won’t cook

Brazilian steaks” (Dissent at 3), that surely would not have

taken a 53-page agency opinion addressing what the Director

deemed to be “an unusually complex or novel issue,” J.A.

571. The dissenting opinion’s view backhands (i) the actual

description of the churrasqueiros’ duties in the record, J.A.

462, which outlines seventeen distinct cooking and non-

cooking skills that must be acquired, (ii) the Ohata

Memorandum’s express recognition that cooking combined

with “ancillary” duties could constitute specialized

knowledge, J.A. 49, (iii) the agency’s prior practice granting

more than 200 of Fogo de Chao’s L-1B applications for its

9

An additional problem is that the Appeals Office reached that

categorical judgment by cherry picking from, rather than

“adher[ing] to and appl[ying]” (Dissent at 1), the two prior policy

memoranda it purported to follow. See supra at 21–25.

45

churrasqueiros, and (iv) the fact that Fogo de Chao

commonly or even predominantly hires American chefs in its

U.S. restaurants, see J.A. 309, 454; Oral Arg. Tr. 57:19–22.

Fogo de Chao’s position here is simply that it needs

Gasparetto to help train those American chefs in churrascaria

techniques and knowledge, and to perform the service- and

team-related skills that Fogo de Chao says have proven

particularly difficult to transfer.

Finally, while the dissenting opinion defends the agency

decision as a “clamp[] down” following the 2004 Ohata

Memorandum (Dissent at 5), it does so for policy reasons that

are entirely absent from the agency decision under review.

Indeed, the agency decision refused to even acknowledge the

shift in approach that the dissent articulates on its behalf. On

top of that, the government does not even contest that it

continued to confer L-1B status on Fogo de Chao’s

churrasqueiros for at least two more years after the Ohata

Memorandum issued. See J.A. 676-677; Fogo de Chao

Opening Br. 9 n.2; Oral Arg. Tr. 16:22-17:18; cf. SEC v.

Chenery Corp., 318 U.S. 80, 87-88 (1943). 10

10

To the extent the dissenting opinion’s concern is with “economic

expediency” and the displacement of American workers (Dissent at

3-4), it was Congress, not Fogo de Chao, that created the L-1B visa

program to bring foreign workers with specialized knowledge into

United States businesses. See, e.g., H.R. Rep. No. 851, 91st Cong.,

2d Sess. 5–6 (1970) (“[I]ntercompany transfers have contributed

immeasurably to the growth of American enterprise” and

“international trade.”). Furthermore, it was the Executive Branch

that decided both (i) that the time and resource-expenses associated

with training domestic workers (including chefs and specialty cooks

that have ancillary duties) should inform the “specialized

knowledge” inquiry, and (ii) that Fogo de Chao’s churrasqueiro

46

We accordingly remand the matter to the district court

with instructions to vacate the Appeals Office’s decision and

to remand to the agency for further proceedings consistent

with this opinion.

So ordered.

chefs met that test more than 200 times (apparently without creating

any “substantial loophole” in the visa program (Dissent at 2)).

Perhaps the dissent disagrees with those policy judgments or the

agency’s past practice. But our Constitution places such sensitive

immigration and economic judgments squarely in the hands of the

Political Branches, not the courts. See Arizona v. United States,

132 S. Ct. 2492, 2510 (2012); United States v. Valenzuela-Bernal,

458 U.S. 858, 864 (1982) (“The power to regulate immigration—an

attribute of sovereignty essential to the preservation of any nation—

has been entrusted by the Constitution to the political branches[.]”).

KAVANAUGH, Circuit Judge, dissenting: Fogo de Chao

operates Brazilian steakhouses in the United States. It wants

to employ Brazilian chefs rather than American chefs in these

steakhouses. The question under the immigration statute at

issue in this case is whether Fogo de Chao’s Brazilian chefs

possess “specialized knowledge.” 8 U.S.C. § 1101(a)(15)(L).

If so, these Brazilian chefs may obtain L1-B visas to work in

the United States.

In 2004, United States Citizenship and Immigration

Services (known as USCIS) announced its determination that

foreign chefs seeking to work in ethnic restaurants in the

United States “generally are not considered to have

‘specialized knowledge.’” USCIS Memorandum (Sept. 9,

2004) at 1, reprinted in Joint Appendix (“J.A.”) 48. In this

case, USCIS adhered to and applied that now-longstanding

agency policy, concluding that Fogo de Chao’s Brazilian

chefs do not possess specialized knowledge for purposes of

this visa program. The District Court upheld the agency’s

decision.

The majority opinion now overturns the agency’s

decision. In doing so, the majority opinion says that it must

decide the case without any meaningful deference (under

Chevron, State Farm, or otherwise) to the agency’s legal

analysis and factual conclusions. I will assume for the sake of

argument that the majority opinion is right to afford no

meaningful deference to the agency. But even reviewing the

matter de novo, I agree with the agency’s decision and

therefore would uphold it.

Fogo de Chao contends that Brazilian chefs have

specialized knowledge based on: (i) the chefs’ knowledge of

Brazilian culture and culinary practices from growing up and

learning how to cook meat in rural Brazil and (ii) the time it

would allegedly take American chefs to learn how to cook

2

Brazilian steaks. The agency correctly rejected those

arguments.

As to Fogo de Chao’s first argument, its so-called

“cultural” argument, I fully agree with the agency’s

longstanding position – which it relied on in this case – that

one’s country of origin, or cultural background, does not

constitute specialized knowledge under this immigration

statute for purposes of being a chef or otherwise working in

an ethnic restaurant or bar in the United States. See 2004

USCIS Memorandum at 2-3. Fogo de Chao says that it wants

“authentic” Brazilian chefs in its U.S. restaurants. Tr. of Oral

Arg. 7, 19, 20, 22-23. But such a circular “foreign citizenship

and cultural background constitute specialized knowledge for

purposes of working in an ethnic restaurant or bar” argument

would gut the specialized knowledge requirement and open a

substantial loophole in the immigration laws.

As to Fogo de Chao’s second contention – that the

Brazilian chefs have specialized knowledge because it takes

significant time for American chefs to learn how to cook

Brazilian steaks – I agree with the agency that Fogo de Chao

failed to prove that claim. Put simply, the record does not

establish that Fogo de Chao’s Brazilian chefs possess skills

that American chefs cannot learn within a reasonable amount

of time.1 At oral argument, Fogo de Chao asserted that in

“Fogo’s experience,” a cook “born in America” cannot learn

to cook Brazilian steaks as well as a Brazilian-born person.

1

Fogo de Chao agrees that the relevant question for this aspect

of its argument is whether American chefs could be trained to do

the job within a reasonable amount of time. See, e.g., Tr. of Oral

Arg. 4 (“Fogo completely agrees” with the proposition that “recipes

and cooking techniques that could be learned by a chef through

exposure to the recipe or cooking techniques for a brief or moderate

period of time generally do not constitute specialized knowledge.”).

3

Tr. of Oral Arg. 57. But the record demonstrates that Fogo de

Chao’s chefs perform tasks that can be readily learned by

American chefs, such as talking with customers while

cooking several cuts of meat on an open grill. See J.A. 631-

32; cf. Maj. Op. at 23 (emphasizing that Fogo’s chefs engage

in “preparing and cooking five to six skewers of meat on an

open grill,” “circulating through the dining room to carve

meat for guests,” and “educating those guests about both the

cuts of meat being served and gaucho culinary and cultural

traditions”). Indeed, Fogo de Chao already employs some

American chefs in its U.S. steakhouses, which belies Fogo’s

contention that Americans cannot do the job. Moreover,

reading the record with just a dash of common sense tells us

that chefs who happen to be American citizens surely have

the capacity to learn how to cook Brazilian steaks and

perform the relevant related tasks. To maintain otherwise, as

Fogo de Chao does, is to imply that Brazilian chefs are

essentially born with (or somehow absorb during their

formative years) a cooking skill that cannot be acquired

through reasonable training, which seems an entirely

untenable proposition.

Ultimately, Fogo de Chao’s argument is that American

chefs either can’t learn to cook or won’t cook Brazilian

steaks. See, e.g., Tr. of Oral Arg. 7-9, 57. But the

“Americans can’t learn to cook” proposition is a factually

unsupported stereotype that finds no home in the specialized

knowledge visa program. And the “Americans won’t cook”

proposition in the end is just an economic argument. Like

other restaurants, Fogo de Chao must compete in the chef

market by offering better wages or benefits to attract quality

chefs. Fogo de Chao undoubtedly would save money if it

could simply import experienced Brazilian chefs rather than

hiring and training only American chefs to cook at its

steakhouses here in the United States. And at bottom, that

4

seems to be at least part of what is going on in this case –

namely, Fogo’s desire to cut labor costs masquerading as

specialized knowledge. But under the provision of the

immigration laws at issue here, mere economic expediency

does not authorize an employer to displace American workers

for foreign workers.

For its part, the majority opinion does not fully embrace

Fogo de Chao’s broad “cultural” argument. But the majority

opinion says (contrary to the agency and the District Court)

that Fogo de Chao may have put forth sufficient evidence that

American chefs could not be trained to do these jobs within a

reasonable amount of time. See Maj. Op. at 26-30. As I have

explained, I respectfully disagree with that analysis of the

factual record in this case.

***

The United States is a nation of immigrants. In our

constitutional system, Congress and the President determine

the circumstances under which foreign citizens may enter the

country. The judicial task is far narrower: to apply the

immigration statutes as written. By claiming that its Brazilian

chefs possess “cultural” knowledge and skills that cannot be

learned by Americans within a reasonable time, Fogo de Chao

has attempted an end-run around the carefully circumscribed

specialized knowledge visa program.2 For a brief time, Fogo

de Chao convinced some lower-level agency officials to issue

specialized knowledge visas for its chefs. But in this case,

2

In critiquing this dissent, the majority opinion says that

sensitive immigration judgments are “squarely in the hands of the

Political Branches.” Maj. Op. at 46 n.10. It seems unusual for the

majority opinion to rely on that principle in response to this dissent

given that it is the majority opinion that overturns the decision of

the Executive Branch in this case.

5

applying its definitive 2004 policy regarding foreign chefs,3

the agency clamped down and said no to Fogo de Chao. This

case does not raise the question of how other visa categories

might apply to foreign workers such as these chefs. But

under this provision of the immigration laws, I would uphold

the agency’s decision and affirm the judgment of the District

Court. I respectfully dissent.4

3

The agency decision in this case repeatedly referenced the

agency’s 2004 policy, stating for example: “The 2004 Ohata

Memorandum indicates that chefs and specialty cooks

presumptively do not have ‘specialized knowledge’ even if they

possess knowledge of a restaurant’s special food preparation

techniques acquired through training. . . . Here, the petitioner

claims that the knowledge required to perform the ancillary duties

of a churrasqueiro chef comes primarily from the beneficiary’s

‘unique life experience’ and upbringing in the gaucho culture,

rather than from in-house training. The Ohata Memorandum makes

no reference to cultural knowledge as a source of specialized

knowledge.” USCIS Appeals Office Decision at 45, reprinted in

J.A. 670.

4

Although I disagree with the majority opinion’s conclusion, I

note one point that might be relevant going forward. From my

reading of the majority opinion, it appears that the agency could

permissibly adopt a binding regulation (not just a policy memo)

that would receive Chevron deference and that would make clear

that workers such as these Fogo de Chao chefs do not possess

specialized knowledge under this immigration statute. See United

States v. Mead Corp., 533 U.S. 218, 229-30 (2001). Whether the

agency chooses to do so is of course up to the agency.