• Federal Court Criticizes USCIS’s Narrow Interpretation of L-1B Visa Eligibility
  • November 14, 2014
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • In a decision with potentially broad applicability to sponsoring employers, the U.S. Court of Appeals for the D.C. Circuit overturned USCIS’s denial of an L-1B visa petition and criticized the agency’s inconsistent adjudication of L-1B specialized knowledge cases. Fragomen Partner Carl Hampe was lead counsel in the appeal.

    In Fogo de Chao (Holdings) Inc. v. U.S. Department of Homeland Security, the D.C. Circuit reaffirmed longstanding agency guidance on the concept of specialized knowledge - guidance that, in recent years, had been minimized as USCIS took an increasingly narrow view of eligibility for the L-1B visa category.

    The Court forbade USCIS from treating certain types of knowledge as categorically ineligible for treatment as specialized, and directed the agency to give consideration to the economic inconvenience an employer would experience if it were unable to transfer a foreign beneficiary to the United States. It found that a long record of prior L-1B petition approvals could be relevant in current adjudications.

    The Court refused to accord deference to the USCIS L-1B regulations, finding that these regulations - and in particular the definition of specialized knowledge - simply restated ambiguous statutory provisions. The opinion also suggested that non-precedential decisions of USCIS’s Administrative Appeals Office may not warrant deference.

    What the Decision Means for Employers

    The D.C. Circuit’s decision is a hopeful development for L-1B sponsoring employers, who in recent years have seen a surge in petition denials and significant unpredictability in the way USCIS adjudicators interpret the concept of specialized knowledge. It means that adjudicators may not easily disregard an employer’s past history of successful L-1B petition sponsorship or its economic need for specific L-1B beneficiaries. As a result of the decision, denials of L-1B petitions may be more amenable to court challenges.