Court Says Brazilians Might Really Slice Steak Better Than Americans CanBy
In 1970, Congress created a special visa, the L-1, for companies that want to move employees who have “specialized knowledge” to work for several years in the U.S. That law didn’t specify (PDF) what “specialized knowledge” meant, so businesses, labor groups, courts, and politicians have been wrangling over it ever since. This week, a federal appeals panel in Washington ruled that the Brazilian chefs who work at the steakhouse chain Fogo de Chão may have “cultural knowledge and skills” that should count.
In a 2-to-1 opinion issued Tuesday, the Washington, D.C., Circuit Court of Appeals found that the Department of Homeland Security had failed to justify turning down Fogo de Chão Holdings’ request for an L-1B visa (a kind of L-1) to bring to the U.S. a specially-trained chef. Judge Patricia Millett wrote that “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.’” At Fogo, chefs wear traditional clothing and ritually slice meat at the table side.
In a dissent, Judge Brett Kavanaugh suggested his colleagues were headed down a slippery slope, warning that “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.”
A 2006 DHS Inspector General report found (PDF) that from 1999 to 2004, “computer and IT related outsourcing service firms that specialize in labor from India” made up nine of the 10 companies submitting the most L-1B petitions. But Fogo, which had previously won approval for hundreds of L-1Bs, isn’t the only company to seek them for its chefs. Both Millett’s decision and Kavanaugh’s dissent cite a 2004 memo in which a United States Customs and Immigration Services official stated that “Chef or Specialty Cooks generally are not considered to have ‘specialized knowledge’ for L-1B purposes” but could be granted such visas if their bosses showed their knowledge was sufficiently uncommon, hard to acquire, and necessary to the company’s business. (The Immigration Act of 1990 had described 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.”)
The L-1B has long been controversial. As Bloomberg Businessweek reported in 2012, major corporations have contended that the process of getting one is slow, intrusive, and arbitrary. Meanwhile, politicians in both parties have raised concerns that the L-1B could serve as a loophole for companies to evade annual caps and minimum labor standards included in other guest worker programs such as the H1-B. “It’s true that companies have to move personnel around,” says Daniel Costa, director of immigration law and policy research at the liberal Economic Policy Institute. “That’s something reasonable people can probably accept as part of a globalized economy. The problem is when it’s used just to hire someone who could be hired here, and perhaps at a lower wage.”
EPI wants DHS to resolve the issue by going through a formal rule-making process to specify just what counts as specialized knowledge. “It’s sort of a mess,” says Costa. “Nobody knows what it means.”