Brazilian Chef May Get Denied Visa After All

(CN) - Immigration officials must explain why a Brazilian chef's knowledge of his country's cuisine is "categorically irrelevant" to his request for a visa to work for a Brazilian steakhouse chain in the U.S., the D.C. Circuit ruled.

Dallas-based Fogo de Chao - which owns a chain of churrascarias, or Brazilian steakhouses - sued the federal government in 2010 after its L-1B visa application for chef Rones Gasperetto was denied.

Gasperetto is a Brazilian gaucho chef with more than two years' experience as a churrasquiero in Fogo's steakhouses in Brazil, according to the chain. Fogo de Chao owns and operates six churrascarias in Brazil and 16 in the United States, with its first U.S. location opening in Dallas in 1997.

It touts its restaurants being staffed by genuine Brazilian gaucho chefs, also known as churrasqueiros, who grew up specializing in the traditional method of preparing and serving meat.

Fogo de Chao said its chefs begin their careers by working at least two years in one of their Brazilian locations and completing a training program. Certain L-1B visa candidates are then selected for transfer to Fogo de Chao's U.S. steakhouses.

The L-1B visa allows American employers to hire foreign workers with specialized skill sets.

To qualify, Fogo de Chao had to include with Gasperetto's visa petition evidence that he would be working in a "specialized knowledge capacity."

But the government denied Gasperetto's application for a visa, finding that he had only a "general cultural knowledge," rather than specialized knowledge of Brazilian cuisine.

A federal judge upheld the agency's decision last year.

The D.C. Circuit, however, took a different view.

It reversed the ruling Tuesday, saying "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."

Certainly, the mere fact that Gasperetto is from Brazil, does not mean that he has special knowledge of churrasco, the court noted.

"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," Judge Patricia Millett said, writing for the panel's majority. "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."

While an agency's decision is entitled to deference, it may not "close its eyes to on-point and uncontradicted record evidence without any explanation at all."

Here, the agency's "categorical exclusion of cultural knowledge" learned from a family or community, rather than from corporate trainers, requires a remand so that the agency can make a reasoned analysis of why "specialized knowledge" would bar any and all knowledge acquired from one's cultural traditions or life experience, the panel said.

Judge Brett Kavanaugh dissented, stating that Fogo de Chao's "argument would gut the specialized knowledge requirement and open a substantial loophole in the immigration laws."

The restaurant chain employs several American chefs, belying its claim that American chefs cannot cook Brazilian steaks as well as a Brazilian chef, the dissent said.

"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," Kavanaugh said. (Parentheses in original.)

Rather, the judge said, Fogo de Chao's "cultural" argument seems to be a masquerade for its real motivation - the desire to cut labor costs by hiring foreign workers.

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