wednesday, 22 october of 2014


Brazilian Steakhouse Beats Feds in Fight Over Chef´s Visas

Victory is sweet—or, more appropriately, savory—for Brazilian steakhouse chain Fogo de Chao, which prevailed on Tuesday in a visa dispute with federal immigration officials.

A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit found that the U.S. Department of Homeland Security was wrong to prohibit any consideration of “culturally acquired knowledge” in deciding whether to grant a work visa for one of the company’s chefs.

Fogo de Chao runs a chain of Brazilian steakhouses across the United States and in Brazil. Each restaurant features chefs, known as churrasqueiros, or “gaucho chefs,” who are from a rural area in southern Brazil and specialize in traditional preparations of meats. According to the restaurant, these chefs train in one of its locations in Brazil before transferring to the United States.

For almost a decade, immigration officials approved more than 200 visas for Fogo de Chao to bring chefs from Brazil to its U.S. restaurants. The department approved applications for L-1B visas, which allow companies to transfer foreign workers with “specialized knowledge” to the United States.

Fogo de Chao sued the government in 2010 after its request for an L-1B visa for chef Rones Gasparetto was denied. The Administrative Appeals Office within Homeland Security found that Gasparetto’s background and training wasn’t “specialized knowledge.”

A federal district judge in Washington sided with the government in August 2013. On Tuesday, Judge Patricia Millett, joined by Judge Robert Wilkins, reversed the district judge’s decision and sent the case back for further consideration.

“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’ … or how that rule comports with the prior agency guidance that the Appeals Office purported to follow,” Millett wrote.

Millett and Wilkins also found that the government failed to establish that Gasparetto didn’t complete Fogo de Chao’s training program.

Judge Brett Kavanaugh dissented, writing that he agreed “with the agency’s longstanding position—which it relied on in this case—that a person'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.” Millett, in her opinion, disputed that the agency’s policy was “longstanding.”

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.

Fogo de Chao’s lead attorney, Carl Hampe of Fragomen, Del Rey, Bernsen & Loewy, and a representative of the U.S. Citizenship and Immigration Services were not immediately available to comment.

(Published by Legal Times, October 21, 2014)

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