Author : Alice Chen Anderson
In Upland, California, during the 1980’s, it was common for an uncommon Taiwanese-immigrant family to travel 90 minutes west to Los Angeles for an “ordinary” dinner. “Ordinary” to this family meant stir-fried bok choy, bitter melon soup, and fried rice with tiny salty fish. Fast forward thirty years later, and now it only takes twenty minutes for this family to travel to an ordinary dinner because of the proliferation of Asian groceries and restaurants in the region.
As a nation of immigrants, we are experiencing a renewed interest in ethnic, culturally diverse food.[1] It is no surprise to find a sushi place in the middle of Wisconsin, and Vietnamese pho in Missouri. We are adventurous and seek authentic cultural-ethnic restaurant experiences, which in turn call for highly-skilled professional cooks and chefs well-seasoned in creating the ethnic flavors.
For the past decade, U.S. immigration laws and regulations failed to catch up to the growing demand for professional cooks and chefs from all over the world. In one of the most commonly used visa categories for recruiting a professional cook, the EB-3 (Third Preference Employment-based) visa, the wait time can be three years, or longer depending on the country. That option gets stale quickly when restaurants open and close within three years. Legal advocacy can help food and hospitality industry members craft a petition for other visas, if the facts are just right, such as the J-1, H-1B, E, EB-1, EB-2, O-1, or Q-1 visas.
Another option for those who have multinational sites is the L-1 intracompany transferee visa. This visa was originally created by Congress to help American companies easily transfer their key employees from offices abroad to this country. In order to qualify for the L-1, the qualifying organization must have employed the beneficiary in a managerial or executive capacity, or specialized knowledge capacity, for one continuous year abroad within three years preceding the application. A qualifying organization is a firm, corporation or legal entity that is or will be doing business in the United States and at least one other country directly or through a parent, branch, affiliate, or subsidiary.
For transferees who do not fit in the managerial or executive capacity, employers attempting to transfer workers under the “specialized knowledge” category have to understand the varying interpretive history of that category. Congress in 1990 and USCIS’s predecessor, Immigration and Naturalization Service (“INS”), along with USCIS, set out statutory and internal policy definitions of “specialized knowledge.”[2] It is “special knowledge of the company product and its application in international markets or . . .[is] an advanced level of knowledge of processes and procedures of the company.” Examples would be knowledge that is valuable to the employer’s competitiveness in the marketplace. It is not necessarily proprietary or unique, but must be different and uncommon. If there is special knowledge of a company product, it must be noteworthy or uncommon. If there is knowledge of company processes or procedures, the knowledge must be advanced. Unexpectedly, the Administrative Appeals Office (“AAO”) (the appeals board for the USCIS) issued a series of highly restrictive decisions beginning in 2008, essentially setting a higher bar for this category and narrowly interpreting the statutory and internal policy definitions of this category. It was no surprise, then, that denial rates increased, and we expected only three-starred Michelin chefs to qualify.
However, there is now a small window opened for USCIS to return to the fundamentals of their policy guidance and for highly-skilled chefs with culturally/ethnically rich culinary backgrounds to transfer here under the “specialized knowledge” category. A recent federal appeals court decision on October 21, 2014 scolded the AAO for failing to track with their policy guidance by “woodenly” excluding a chef’s distinctive cultural background and experience as a factor for “specialized knowledge.” The case concerned a chain of Brazilian steakhouse restaurants, Fogo de Chao, that wanted to transfer an authentic Brazilian gaucho chef to this country.[3] Though the court did not ultimately decide whether this particular chef with firsthand experience of a Brazilian culinary and cultural tradition had the requisite “specialized knowledge,” the two-judge majority opinion sent the case back to USCIS with instructions to lay out a reasoning that tracks with the standards and analysis the court sets out – essentially following Congress’s statutory definition and the policy guidance/memoranda issued by the INS and USCIS.
It does not mean that USCIS will accept all chefs who have a foreign, firsthand experience of cooking ethnic cuisine abroad. The “Ohata memo” even states that “chefs or specialty cooks generally are not considered to have ‘specialized knowledge’ for L-1B purposes.” However, it does mean USCIS should follow their own policies, including the “Ohata memo” that lays out an analytical approach for evaluating chefs and cooks. Not only should USCIS analyze the skills, but also at “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.” Other duties, such as singing and performing acrobatic knife skills (think Japanese teppanyaki steakhouses), may certainly help. The complexity level of in-house training and the economic impact to train someone here would also factor in to whether the potential transferee would have “specialized knowledge.”
Although we have yet to see the ripple effect of this decision, USCIS cannot hide behind their past AAO decisions and randomly deny L-1B applications without giving some logical, reasoned basis that tracks with their policy guidance. For employers, immigration lawyers, and foodies, that is welcome news indeed.
[1] See the following trend reports: http://www.qsrmagazine.com/news/ethnic-food-rise-diners-seek-authenticity, http://www.mintel.com/press-centre/food-and-drink/authenticity-is-key-ingredient-in-ethnic-fare-reports-mintel
[2] See INS Memorandum, J.A. Puleo, Acting Executive Associate Commissioner, “Interpretation of Specialized Knowledge,” CO 214L-P (Mar. 9, 1994), (hereinafter “Puleo memo”). Reproduced in the USCIS Adjudicator’s Field Manual, App. 32-1; see also AILA InfoNet Doc. No. 01052171 (May 21, 2001); USCIS Memorandum, F.O. Ohata, Director, Service Center Operations, “Interpretation of Specialized Knowledge for Chefs and Specialty Cooks,” (Sept. 9, 2004), (hereinafter “Ohata memo”) reprinted on AILA InfoNet at Doc. No. 04091666 (posted Sept. 16, 2004).
[3] Fogo de Chao (Holdings) Inc., v. United States Department of Homeland Security, No. 13-5301 (D.C. Cir. Oct. 21, 2014).
Helen represents clients facing criminal charges in both state and federal court. She is a member of the Criminal Justice Act panel of attorneys in the Middle District of North Carolina, and is admitted to practice before the Eastern, Middle and Western District Federal Courts as well as the Fourth and Eleventh Circuit Courts of Appeal.
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