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Court Holds that USCIS Should Consider “Life Experience” as Part of Specialized Knowledge Requirement for L-1B Visa

Written By The Shapiro Law Group on November 10, 2014

The L-1 visa is often used to facilitate intra-company transfers of foreign national employees to work in a U.S. facility. In order to be eligible for the L-1B visa, the sponsored employee must have been employed by the company outside the U.S. in a specialized knowledge position for one or more years (continuously) within the three years prior to the transfer, and must be transferring to fill a specialized knowledge position in the U.S.

In a major advancement for employment immigration opportunities, the U.S. Court of Appeals for the District of Columbia Circuit recently held that cultural traditions and life experience can be considered “specialized knowledge” for purposes of obtaining an L-1B intra-company transferee visa.

At issue in the case was whether the Brazilian steakhouse chain Fogo de Chao could use the L-1B visa to transfer chefs from the Rio Grande do Sul area of southern Brazil – where they are raised and trained in the “gaucho way” of roasting meats over pits of open fire – to work in the U.S. restaurants.

Specifically, the federal appellate court rejected the determination of the U.S. Citizenship and Immigration Services (USCIS) that “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” and therefore cannot not considered “specialized knowledge” as required for L-1 intra-company transfer visa.

Rather, according to the National Law Review, the appellate court held that nothing in the statute precludes culturally acquired knowledge – such as upbringing and customs – from being taken into account as “specialized knowledge” for L-1B visa consideration.

The court remanded the case to USCIS and instructed the agency to determine the difference between “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.”

The court’s decision in Fogo De Chao (Holdings) Inc v. U.S. Department of Homeland Security, No. 13-5301 (D.C. Cir. Oct. 21, 2014) is a significant positive development for employers looking to transfer an employee from a foreign facility to a U.S. facility under the L-1 visa since it will allow them to use the foreign employee’s life experience to support the transfer.

Contact an Immigration Lawyer

If you would like more information about this decision or the L-1 visa, contact the immigration attorneys at the Shapiro Law Group. We have more than 30 years of experience advising employers with respect to a wide variety of visa and green card options. Contact Shapiro Law Group at (847)564-0712 to speak with an immigration lawyer.