 United States Court of Appeals
           FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 1, 2014                Decided October 21, 2014

                       No. 13-5301

             FOGO DE CHAO (HOLDINGS) INC.,
                      APPELLANT

                             v.

 UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET
                        AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:10-cv-01024)


     Carl W. Hampe argued the cause for appellant. With him
on the brief was Steve Chasin.

     Gisela A. Westwater, Senior Litigation Counsel, U.S.
Department of Justice, argued the cause for appellees. With
her on the brief were Stuart F. Delery, Assistant Attorney
General, and Aram A. Gavoor, Trial Attorney. R. Craig
Lawrence, Assistant U.S. Attorney, entered an appearance.

    Before: KAVANAUGH, MILLETT and WILKINS, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge MILLETT.
                               2
    Dissenting opinion filed by Circuit Judge KAVANAUGH.

     MILLETT, Circuit Judge: Fogo de Chao (Holdings), Inc.,
operates numerous Brazilian steakhouse restaurants, known as
churrascarias, in Brazil and the United States. According to
Fogo de Chao, a critical component of its success has been the
employment in each of its restaurants of genuine gaucho
chefs, known as churrasqueiros, who have been raised and
trained in the particular culinary and festive traditions of
traditional barbecues in the Rio Grande do Sul area of
Southern Brazil.

     But of late, Fogo de Chao’s efforts to bring authentic
Brazilian churrasqueiro chefs into its United States
restaurants have hit a legal roadblock. Federal immigration
law provides what are known as L-1B visas to qualifying
multinational businesses, which permit them to temporarily
transfer foreign employees possessing “specialized
knowledge” into the United States. From 1997 to 2006, the
Department of Homeland Security granted Fogo de Chao over
200 L-1B visas for its churrasqueiros. In 2010, Fogo de
Chao sought to transfer another churrasqueiro chef, Rones
Gasparetto, to the United States, reasoning that his distinctive
cultural background and extensive experience cooking and
serving meals in the churrasco style constitute “specialized
knowledge.” The Administrative Appeals Office within the
Department of Homeland Security concluded, however, that
Gasparetto’s cultural background, knowledge, and training
could not, as a matter of law, constitute specialized
knowledge. Unable to discern either (i) a sufficiently
reasoned path in the Appeals Office’s strict bar against
culturally based skills, or (ii) substantial evidence supporting
its factual finding that Gasparetto did not complete the
company training program, we reverse and remand the district
court’s grant of summary judgment to the government.
                                  3
                        I.   BACKGROUND

         A. Statutory and Regulatory Framework

     1. In 1970, Congress amended the Immigration and
Nationality Act, 8 U.S.C. §§ 1101 et seq., to create a
nonimmigrant visa program for qualifying employees of
multinational companies that are being transferred to the
United States. See Pub. L. No. 91-225, 84 Stat. 116, 116
(1970). As amended, the Act provides that a temporary,
nonimmigrant visa may be issued to an alien who, after being
employed continuously by the sponsoring employer for at
least one year in the three years preceding his or her
application, seeks to enter the United States to continue
working for that employer (or an affiliate) “in a capacity that
is managerial, executive, or involves specialized
knowledge[.]” 8 U.S.C. § 1101(a)(15)(L). 1 A visa granted to
an employee whose work entails specialized knowledge is
commonly referred to as an L-1B visa, while a visa for
managerial or executive employees is known as an L-1A visa.
The “specialized knowledge” L-1B visa is at issue in this
case.

   The 1970 Act did not define “specialized knowledge,”
and the term has been subject to varying regulatory

1
  The statutory provision, in relevant part, defines a “nonimmigrant
alien[]” eligible for a visa as “an alien who, within 3 years
preceding the time of his application for admission into the United
States, has been employed continuously for one year by a firm or
corporation or other legal entity or an affiliate or subsidiary thereof
and who seeks to enter the United States temporarily in order to
continue to render his services to the same employer or a subsidiary
or affiliate thereof in a capacity that is managerial, executive, or
involves specialized knowledge[.]” 8 U.S.C. § 1101(a)(15)(L).
                                4
definitions. By 1987, the formal regulatory definition of
“specialized knowledge” was “knowledge possessed by an
individual whose advanced level of expertise and proprietary
knowledge of the organization’s product, service, research,
equipment, techniques, management, or other interests of the
employer are not readily available in the United States labor
market.” 52 Fed. Reg. 5738, 5752 (Feb. 26, 1987) (codified
at 8 C.F.R. § 214.2(l)(1)(ii)(D) (1988)).

     In 1990, Congress displaced that regulation with its own
statutory definition, providing that an employee has
specialized knowledge “if the alien has a special knowledge
of the company product and its application in international
markets or has an advanced level of knowledge of processes
and procedures of the company.” 8 U.S.C. § 1184(c)(2)(B);
see also Immigration Act of 1990, Pub. L. No. 101-649,
§ 206(b)(2)(B), 104 Stat. 4978, 5023.

     The Immigration and Naturalization Service has since
promulgated a regulatory definition of “specialized
knowledge” that essentially tracks the new statutory language,
defining it as “special knowledge possessed by an individual
of the petitioning organization’s product, service, research,
equipment, techniques, management, or other interests and its
application in international markets, or an advanced level of
knowledge or expertise in the organization’s processes and
procedures.” 8 C.F.R. § 214.2(l)(1)(ii)(D). 2



2
  The Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135, abolished the Immigration and Naturalization Service
and transferred its authority to the Secretary of Homeland Security
and two divisions within the Department of Homeland Security:
the Bureau of Immigration and Customs Enforcement and the
                              5
     2. Under the current regulations, a company seeking to
classify an alien as eligible for an L-1B visa must file a
petition with the Secretary.        8 C.F.R. § 214.2(l)(2)(i).
Included with the petition must be:

    (ii) Evidence that the alien will be employed in [a] * * *
    specialized knowledge capacity, including a detailed
    description of the services to be performed[;]

    (iii) Evidence that the alien has at least one continuous
    year of full-time employment abroad with a qualifying
    organization within the three years preceding the filing of
    the petition[; and]

    (iv) Evidence that the alien’s prior year of employment
    abroad was in a position that * * * involved specialized
    knowledge and that the alien’s prior education, training,
    and employment qualifies him/her to perform the
    intended services in the United States; however, the work
    in the United States need not be the same work which the
    alien performed abroad.

Id. § 214.2(l)(3).

     While no other regulatory definition of “specialized
knowledge” has been promulgated, internal agency
memoranda have provided additional guidance. Specifically,
in March 1994, James Puleo, the Acting Executive Associate
Commissioner of the Immigration and Naturalization Service,
issued a memorandum elaborating on the proper interpretation
of “specialized knowledge.”     The Puleo Memorandum
counseled that common dictionary definitions of the key

Bureau of Citizenship and Immigration Services.   See Clark v.
Martinez, 543 U.S. 371, 374 n.1 (2005).
                                6
terms “special” and “advanced” should be used. “Special”
thus signifies “surpassing the usual; distinct among others of a
kind” or “distinguished by some unusual quality; uncommon;
noteworthy.” Memorandum of James A. Puleo, Acting
Executive Assoc. Comm’r, Immigration and Naturalization
Service, Interpretation of Special Knowledge at 1 (March 9,
1994), reproduced in J.A. 42 (quoting WEBSTER’S II NEW
RIVERSIDE UNIVERSITY DICTIONARY and WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY). While an employee’s
knowledge need not be proprietary or unique, the Puleo
Memorandum explained, the knowledge must still be different
or uncommon and not generally found in the particular
industry. Id. Knowledge might be found to be special where,
for example, “[t]he alien beneficiary has knowledge of a
foreign firm’s business procedures or methods of operation”
such that “the United States firm would experience a
significant interruption of business in order to train a United
States worker to assume those duties.” Id. at 2, J.A. 43. 3

    In 2004, Fujie Ohata, the Director of Service Center
Operations for United States Citizenship and Immigration
Services (“the Service”), issued another memorandum
providing guidance on whether and when chefs’ or specialty
cooks’ skills would qualify as “specialized knowledge.”
Memorandum of Fujie O. Ohata, Director, Service Center
Operations, United States Citizenship and Immigration
Services, Interpretation of Specialized Knowledge for Chefs
and Specialty Cooks Seeking L-1B Status (Sept. 9, 2004),

3
  “Advanced” knowledge, in turn, signifies “highly developed or
complex; at a higher level than others” or “beyond the elementary
or introductory; greatly developed beyond the initial stage.” Puleo
Memorandum at 2, J.A. 43 (quoting WEBSTER’S II NEW RIVERSIDE
UNIVERSITY DICTIONARY and WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY).
                               7
reproduced in J.A. 48–51. The Ohata Memorandum advised
that “Chefs or Specialty Cooks generally are not considered to
have ‘specialized knowledge’ for L-1B purposes.” Id. at 1,
J.A. 48. The relevant question, the Ohata Memorandum
elaborated, is “not only how skilled the chef is and whether or
not his or her skills are common to other chefs, but also 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.” Id at 2, J.A. 49. A chef’s “ancillary”
duties, such as singing in a themed restaurant, may also give
rise to specialized knowledge. Id. The inquiry turns on an
assessment of “the length and complexity of in-house training
required to perform such duties” in order to determine “the
amount of economic inconvenience, if any, the restaurant
would undergo were it required to train another individual to
perform the same duties.” Id.

     Echoing the Puleo Memorandum, Ohata stressed that, to
qualify as “specialized knowledge” of the relevant product or
process, the employee’s skill “must be of the sort that is not
generally found in the particular industry, although it need
not be proprietary or unique.” Ohata Memorandum at 2, J.A.
49. In that regard, “[r]ecipes and cooking techniques that can
be learned by a chef through exposure to the recipe or
cooking techniques for a brief or moderate period of time
generally do not constitute specialized knowledge.” Id. at 3,
J.A. 50.

     Ultimately, then, the petitioner’s burden is to show
through probative evidence that the proposed visa
beneficiary’s knowledge is “(a) uncommon or not generally
shared by practitioners in the alien’s field of endeavor; (b) not
easily or rapidly acquired, but is gained from significant
experience or in-house training, and (c) is necessary and
                              8
relevant to the successful conduct of the employer’s
operations.” Ohata Memorandum at 4, J.A. 51.

                 B. Factual Background

     Fogo de Chao owns numerous upscale churrascarias, or
Brazilian steakhouses, that focus on the churrasco, a
traditional festive style of both preparing and serving meat
derived from the gaucho culture of the Rio Grande do Sul
region of southern Brazil. Following its success in Brazil,
Fogo de Chao entered the United States market in 1997, and
now has restaurants in sixteen cities here.

     Fogo de Chao seeks to recreate for its customers an
authentic churrascaria experience, and it does so by
employing at each restaurant a certain number of Brazilian-
born churrasqueiros, or “gaucho chefs,” who learned the
churrasco style of cooking and service firsthand both growing
up in the Rio Grande do Sul region and through training and
at least two years of experience in Fogo de Chao’s Brazilian
restaurants.    Those churrasqueiros provide both direct
customer service as chefs and train American employees to
serve as churrasqueiro chefs. According to an affidavit filed
by Fogo de Chao’s Chief Executive Officer, only those native
Brazilian churrasqueiros, who come with years of firsthand
experience in the churrasco tradition and have survived Fogo
de Chao’s own selection process, have proven capable of
performing all of the culinary and service-related duties that
Fogo de Chao requires of its churrasqueiro chefs,
notwithstanding the significant amount of training provided to
the company’s other employees. Fogo de Chao has thus
petitioned hundreds of times before for L-1B “specialized
knowledge” visas for its Brazilian churrasqueiros to transfer
to its U.S. restaurants. Over 200 of those petitions were
granted prior to the petition at issue here.
                              9
     The present appeal arises out of Fogo de Chao’s
application in January 2010 for an L-1B visa for Rones
Gasparetto, a Brazilian churrasqueiro. Fogo de Chao filed
with that petition a cover letter, signed by the company’s
Chief Executive Officer, declaring that Gasparetto had been
employed as a “Churrasqueiro Chef” in Sao Paulo, Brazil
since May 1, 2007, and had worked in the same capacity in
another of Fogo de Chao’s Brazilian affiliates from June 2006
through February 2007. The letter outlined the exacting
selection process by which Gasparetto had been chosen to
enter Fogo de Chao’s churrasqueiro training program, his
successful completion of that program, and the various duties
relating to food preparation and service that he was able to
perform as a result of both that training and his rural
upbringing participating in the churrasco tradition in southern
Brazil. Fogo de Chao submitted a number of exhibits as well,
including Gasparetto’s passport, a year of his paystubs from a
Fogo de Chao affiliate in Brazil, descriptions of Fogo de
Chao’s corporate structure and operations in the United
States, and information, including several expert reports,
discussing (i) the distinguishing features of Fogo de Chao’s
business model and training program, (ii) the churrasco
method and the region of Brazil from which it is drawn, and
(iii) the distinct skills required of the company’s
churrasqueiro chefs.

     In February 2010, the Service issued a Request for
Evidence seeking additional information on (1) Fogo de
Chao’s organizational structure, (2) the number of persons
employed in Gasparetto’s position at the restaurant in the
United States to which Fogo de Chao sought to transfer him,
(3) the manner in which his proposed duties had previously
been performed in that restaurant, (4) the features
distinguishing Gasparetto’s duties and training from those of
Fogo de Chao’s other employees, (5) the nature of any
                              10
training he was to provide, and (6) the impact on Fogo de
Chao’s business if it could not transfer Gasparetto. Fogo de
Chao responded by providing additional information.

     Shortly thereafter, the Director of the Vermont Service
Center denied Fogo de Chao’s petition, finding that
Gasparetto did not appear to be employed in a specialized-
knowledge capacity. Acknowledging Fogo de Chao’s claim
that Gasparetto’s position requires someone with experience
growing up in the gaucho culture and the churrasco tradition
of southern Brazil, the Director nonetheless concluded that
the company had not shown “that these skills are so
uncommon or complex that other chefs in the industry could
not master them within a reasonable period of time.” J.A.
390.

                   C. Procedural History

    1. Fogo de Chao filed a complaint in the United States
District Court for the District of Columbia against the Service,
the Department of Homeland Security, and other federal
defendants (collectively, “the Department”) challenging the
denial of the petition. While the case was pending, the
Service reopened the proceedings on its own motion in
October 2010, and the district court stayed its proceedings.

     In the reopened administrative case, Fogo de Chao
submitted both a legal memorandum and additional exhibits,
including an affidavit from Fogo de Chao’s Chief Executive
Officer further detailing the company’s distinct business
model, outlining the duties its churrasqueiro chefs must be
able to perform, and explaining that the company thus far has
been unable to teach non-Brazilian employees to successfully
execute all of those skills. Specifically, of the seventeen
duties required of Fogo de Chao’s churrasqueiros, the
affidavit indicated that four of the duties could not be taught
                              11
to non-Brazilian employees within a reasonable time and six
could not be taught at all no matter how much training was
given. Other documents submitted at this time included
Gasparetto’s curriculum vitae, a letter from a Brazilian
nutritionist who had interviewed him and evaluated his ability
to fill the churrasqueiro role, and additional information on
the company’s hiring process and the manner in which newly
hired employees enter Fogo de Chao’s training program.

     The Vermont Service Center Director again denied the
petition. The Director concluded that Fogo de Chao had not
shown that its training program imparted specialized
knowledge or that its methods differed from those of other
Brazilian churrascaria restaurants in the United States. The
Director also ruled that Fogo de Chao had failed to provide
sufficient details about Gasparetto’s work in Fogo de Chao’s
Brazilian restaurants, information on what distinguished his
knowledge from that of Fogo de Chao’s other employees, or
sufficient evidence of his completion of Fogo de Chao’s
training program. The Director then certified his decision to
the Service’s Administrative Appeals Office as a case
involving “an unusually complex or novel issue of law or
fact.” J.A. 571.

     2. The Appeals Office affirmed the Director’s decision.
First, the Appeals Office concluded that the petition could be
denied solely on the grounds that (i) Gasparetto’s culinary
skills, knowledge of his native regional culture, and
“authenticity” gained through his life experiences could not,
as a matter of law, constitute “special knowledge of the
petitioner’s product,” J.A. 665, and (ii) Fogo de Chao failed to
                               12
establish that Gasparetto had completed two years of training
and one year of employment as a churrasqueiro chef. 4

     Second, the Appeals Office concluded that Fogo de Chao
had not established that the churrasqueiro position generally
required specialized knowledge, relying again on its
conclusion that knowledge of the culture and culinary
traditions of the Rio Grande do Sul region of Brazil could not
constitute specialized knowledge. The Appeals Office added
that Fogo de Chao had also failed both to distinguish the
knowledge and skills of its churrasqueiros from those of
similar employees in the churrascaria industry and to
demonstrate sufficiently that it could not train employees
hired in the United States to perform that role.

     3. Following the Appeals Office decision, proceedings
before the district court resumed, and the district court
subsequently granted the Department’s motion for summary
judgment. In so ruling, the district court deferred, under
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), to what it viewed as the Appeals
Office’s regulatory interpretation of “specialized knowledge.”
See Fogo De Chao Churrascaria, LLC v. Department of
Homeland Security, 959 F. Supp. 2d 32, 44–49 & n.5 (D.D.C.
2013). The court further concluded that the Appeals Office’s
determination that Fogo de Chao had failed to submit
sufficient documentation regarding Gasparetto’s completion
of its training program rendered harmless any error the
agency had committed in its treatment of Gasparetto’s cultural
knowledge. Id. at 46–47. Finally, the district court rejected
Fogo de Chao’s claims that the agency had impermissibly
4
  For those same reasons, the Appeals Office also found that Fogo
de Chao had not demonstrated that Gasparetto had “advanced”
knowledge that would qualify him for the L-1B visa.
                               13
departed from precedent without going through notice-and-
comment rulemaking and had prejudged Fogo de Chao’s
petition. Id. at 49–51.

    Fogo de Chao timely filed this appeal.

                 II. STANDARD OF REVIEW

     We review the district court’s grant of summary
judgment de novo, applying the familiar Administrative
Procedure Act standard that “requires us to set aside agency
action that is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Jicarilla Apache
Nation v. Department of Interior, 613 F.3d 1112, 1118 (D.C.
Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)); see also, e.g.,
Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir.
1991) (same). The scope of our review is narrow, and “a
court is not to substitute its judgment for that of the agency.”
Judulang v. Holder, 132 S. Ct. 476, 483 (2011) (quoting
Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm
Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983)). Rather,
we consider only “whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment.” Judulang, 132 S. Ct. at 484
(quoting State Farm, 463 U.S. at 43); see also Republic of
Transkei, 923 F.2d at 177 (same).

     We generally accord substantial deference to an agency’s
interpretation of both a statute it administers and its own
implementing regulations. See, e.g., Fox v. Clinton, 684 F.3d
67, 75 (D.C. Cir. 2012) (deference to statutory interpretation)
(citing Chevron, 467 U.S. 837); Decker v. Northwest Envtl.
Defense Ctr., 133 S. Ct. 1326, 1337 (2013) (deference to
regulatory interpretation unless it “is plainly erroneous or
inconsistent with the regulation”) (citations omitted).
                               14
     No deference is due, however, to an agency’s
interpretation of its own regulation when, “instead of using its
expertise and experience to formulate a regulation, it has
elected merely to paraphrase the statutory language.” In re
Polar Bear Endangered Species Act Listing & Section 4(d)
Rule Litig., 709 F.3d 1, 18 (D.C. Cir. 2013) (quoting Gonzales
v. Oregon, 546 U.S. 243, 257 (2006)). Rather, where “the
underlying regulation does little more than restate the terms of
the statute itself[,]” the agency has left the statute as it found
it, adding nothing material to Congress’s language and
providing nothing of its own in which to ground an
interpretation to which a court might defer. Gonzales, 546
U.S. at 257 (citing Auer v. Robbins, 519 U.S. 452 (1997)).

     That is what has happened here where the agency’s
“specialized knowledge” regulation mirrors the statutory text.
The Immigration and Nationality Act defines “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.” 8 U.S.C. § 1184(c)(2)(B). The regulation, in
turn, recites that “specialized knowledge” means “special
knowledge possessed by an individual of the petitioning
organization’s product, service, research, equipment,
techniques, management, or other interests and its application
in international markets, or an advanced level of knowledge
or expertise in the organization’s processes and procedures.”
8 C.F.R. § 214.2(l)(1)(ii)(D) (emphases added).              The
regulation thus largely parrots, rather than interprets, the key
statutory language.

     To be sure, there are stray differences between the
statutory and regulatory definitions. But that provides no
basis for judicial deference because “[t]he Government does
not suggest that its interpretation turns on any difference
                                15
between the statutory and regulatory language.” Gonzales,
546 U.S. at 257. Instead, because the regulation “gives little
or no instruction,” id., on the question at issue—what
constitutes “special” or “advanced” knowledge for the
purposes of L-1B visa eligibility—we cannot say that the
agency has interpreted its regulation, rather than the
underlying statute.

     Nor does the Appeals Office’s interpretation of the
statutory language in a non-precedential ruling trigger
Chevron deference, as the government’s counsel openly
conceded at oral argument, see Oral Arg. Tr. 25:13–20. Cf.
International Internship Program v. Napolitano, 718 F.3d
986, 987 n.1 (D.C. Cir. 2013) (reserving that question).

     There is no dispute in this case that Congress, in the
Immigration and Nationality Act, has “delegated authority to
the agency generally to make rules carrying the force of law.”
United States v. Mead Corp., 533 U.S. 218, 226–227 (2001). 5

5
  This deference point is uncontested and, in any event, would not
be determinative of the Chevron inquiry here. Accordingly, we
need not decide whether the shared statutory responsibility of the
Attorney General and the components of the Department of
Homeland Security in addressing legal questions relating to the
adjudication of petitions for nonimmigrant visa classifications may
preclude a finding that Congress has delegated such authority to the
Department of Homeland Security or its components acting alone.
See 8 U.S.C. § 1103(a)(1) (providing that, while the Secretary of
Homeland Security is granted administrative and enforcement
authority in connection with the laws relating to the immigration
and naturalization of aliens, “determination and ruling by the
Attorney General with respect to all questions of law shall be
controlling”); 8 C.F.R. § 103.3(c) (providing roles for both the
Secretary of Homeland Security and the Attorney General in
designating Service decisions as precedents).
                               16
To trigger deference, however, the agency must also show
“that the agency interpretation claiming deference was
promulgated in the exercise of that authority,” Mead, 533
U.S. at 227, which did not happen here. The Appeals Office
decision, and any legal interpretations contained within it,
were the product of informal adjudication within the Service,
rather than a formal adjudication or notice-and-comment
rulemaking.      The absence of those “relatively formal
administrative procedure[s]” that “tend[] to foster the fairness
and deliberation that should underlie a pronouncement” of
legal interpretation, Mead, 533 U.S. at 230, weighs against the
application of Chevron deference, see id. at 230–231. Nor is
the Appeals Office’s decision marked by the qualities that
might justify Chevron deference in the absence of a formal
adjudication or notice-and-comment rulemaking.               See
Barnhart v. Walton, 535 U.S. 212, 222 (2002) (applying
Chevron deference despite less formal rulemaking procedures
because of “the careful consideration the Agency ha[d] given
the question over a long period of time” and other factors);
Fox, 684 F.3d at 77–78 (no deference to agency letter that
failed to meet Barnhart criteria).

    Moreover, the expressly non-precedential nature of the
Appeals Office’s decision conclusively confirms that the
Department was not exercising through the Appeals Office
any authority it had to make rules carrying the force of law.
Cf. Martinez v. Holder, 740 F.3d 902, 909–910 (4th Cir.
2014), as revised (Jan. 27, 2014) (holding non-precedential
opinions issued by one member of the Board of Immigration
Appeals are not entitled to Chevron deference). 6 That is
6
  See also Dhuka v. Holder, 716 F.3d 149, 156 (5th Cir. 2013)
(same conclusion for three-member Board of Immigration Appeals
decisions not designated precedential); Mei Juan Zheng v. Holder,
672 F.3d 178, 184 (2d Cir. 2012) (same); Arobelidze v. Holder, 653
                               17
because the decision’s “binding character as a ruling stops
short of third parties” and is “conclusive only as between [the
agency] itself and the [petitioner] to whom it was issued.”
Mead, 533 U.S. at 233; see 8 C.F.R. § 103.2(b)(16)(ii) (“A
determination of statutory eligibility shall be based only on
information contained in the record of proceeding which is
disclosed to the applicant or petitioner[.]”); id. § 103.3(c)
(designating specific procedure, not followed here, by which
the Secretary of Homeland Security or designated officials
within the department may, with the concurrence of the
Attorney General, designate an Appeals Office decision as
precedential). Having disclaimed any intent to set a rule of
law with any force beyond the petition at issue, the Appeals
Office cannot—and tellingly does not—now claim to have
promulgated its decision as an exercise of any authority it had
to make such rules.

     The unsuitability of the Chevron model of review does
not mean that no deference is due, however.                The
Department’s interpretation of the statute is “‘entitled to
respect’ * * * to the extent it has the ‘power to persuade.’”
Gonzales, 546 U.S. at 256 (quoting Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944)). “The weight of such a judgment
in a particular case will depend upon the thoroughness evident
in [the agency’s] consideration, the validity of its reasoning,
its consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking
power to control.” Id. at 268 (quoting Skidmore, 323 U.S. at

F.3d 513, 520 (7th Cir. 2011) (no Chevron deference for non-
precedential, single-member Board of Immigration Appeals
decisions); Carpio v. Holder, 592 F.3d 1091, 1097 (10th Cir. 2010)
(same); Quinchia v. Attorney General, 552 F.3d 1255, 1258 (11th
Cir. 2008) (same); Garcia-Quintero v. Gonzales, 455 F.3d 1006,
1012–1013 (9th Cir. 2006) (same).
                                18
140)). That, accordingly, is the standard of review that we
apply in this case. 7

            III. SUBJECT-MATTER JURISDICTION

     Although neither party contests the subject-matter
jurisdiction of this court or the court below, we are obligated
to assure ourselves that such jurisdiction exists. See Wagner
v. FEC, 717 F.3d 1007, 1009–1010 (D.C. Cir. 2013).

     The petitioner here brought suit in the district court
pursuant to 28 U.S.C. § 1331. This court has previously
recognized that the general federal-question statute confers
jurisdiction over a similar challenge brought under the
Immigration and Nationality Act. See Abourezk v. Reagan,
785 F.2d 1043, 1050 (D.C. Cir. 1986) (Administrative
Procedure Act challenge to the State Department’s denial of
visas to invited speakers). The question is whether that grant
of jurisdiction was subsequently withdrawn by 8 U.S.C.
§ 1252(a)(2)(B)(ii), which provides that:

    Notwithstanding any other provision of law * * *, no
    court shall have jurisdiction to review * * * any other
    decision or action of the Attorney General or the
    Secretary of Homeland Security the authority for which
    is specified under [8 U.S.C. §§ 1151–1381] to be in the
    discretion of the Attorney General or the Secretary of
    Homeland Security, other than the granting of relief
    under section 1158(a) of this title [relating to asylum].


7
 Since Fogo de Chao does not challenge the interpretations of the
“specialized knowledge” standard contained in the Puleo and Ohata
memoranda, we need not consider what level of deference, if any, is
due to those memoranda’s legal interpretations.
                              19
     We hold that the Appeals Office’s denial of an L-1B visa
request under 8 U.S.C. § 1184(c)(1) does not represent a
“decision or action * * * the authority for which is specified
* * * to be in the discretion of the Attorney General or the
Secretary of Homeland Security,” within the meaning of that
jurisdictional bar. In Kucana v. Holder, 130 S. Ct. 827
(2010), the Supreme Court explained that Section
1252(a)(2)(B)(ii) “speaks of authority ‘specified’—not merely
assumed or contemplated—to be in the Attorney General’s
discretion,” and “‘[s]pecified’ is not synonymous with
‘implied’ or ‘anticipated,’” id. at 834 n.10. Instead, “‘the
language of the statute in question must provide the
discretionary authority’ before the bar can have any effect.”
Soltane v. Department of Justice, 381 F.3d 143, 146 (3d Cir.
2004) (Alito, J.) (quoting Spencer Enterprises, Inc. v. United
States, 345 F.3d 683, 689 (9th Cir. 2003)).

     Here, there is no such statutory grant of discretionary
authority in connection with the Service’s review of petitions
for the L-1B visa classification. Congress nowhere textually
assigned such judgments to the Secretary of Homeland
Security’s or the Attorney General’s sole discretion. Instead,
the statute mandates that visa determinations “shall be
determined by the Attorney General * * * upon petition of the
importing employer,” 8 U.S.C. § 1184(c)(1) (emphasis
added), and the criteria for such decisions are laid out in the
statute, including specifically a definition of “specialized
knowledge,” id. § 1184(c)(2)(B). See Soltane, 381 F.3d at
147 (no jurisdictional bar because the relevant definition of
“special immigrant” was “fairly detailed and specific, with no
explicit reference to ‘discretion’”); Spencer Enterprises, 345
F.3d at 691 (no jurisdictional bar to challenging a visa denial
under the immigrant investor program because the statute
“both mandates issuance of such visas and sets out a series of
standards for eligibility that the visa petitioner must meet”)
                              20
(citation omitted); id. (noting that 8 U.S.C. § 1153(b)(5)(A)
provides that “[v]isas shall be made available * * * to
qualified immigrants seeking to enter the United States for the
purpose of engaging in a new commercial enterprise”).

     In sum, because the relevant provision of the Immigration
and Nationality Act does not commit the decision whether to
grant an L-1B petition to the independent discretion of the
Attorney General or the Secretary of Homeland Security, and
because Congress legislated statutory criteria to be applied in
deciding such petitions, the district court had jurisdiction to
hear Fogo de Chao’s challenge. This court, in turn, has
jurisdiction to hear Fogo de Chao’s timely appeal under 28
U.S.C. § 1291.

            IV. THE APPEALS OFFICE DECISION

     Fogo de Chao raises numerous objections to both the
legal standard applied by the Appeals Office and its
application of the law to the facts in this record. With respect
to Fogo de Chao’s challenges to the legal standard, we agree
that the Appeals Office erred in adopting a categorical
prohibition on any and all culturally acquired knowledge
supporting a “specialized knowledge” determination. We
further agree that the Appeals Office’s conclusion that Fogo
de Chao had failed to establish that Gasparetto completed the
company’s training program is unsupported by substantial
evidence. In light of those errors, it is not clear that the
Appeals Office would have resolved other challenged aspects
of its decision in the same fashion or would have found the
other bases for the decision sufficient alone to warrant denial
of Fogo de Chao’s petition. Accordingly, consistent with our
limited role in reviewing agency action, we reverse the district
court’s judgment and remand with instructions to vacate the
Appeals Office’s order and remand for further proceedings
                               21
consistent with this opinion. See INS v. Orlando Ventura, 537
U.S. 12, 16–17 (2002) (applying the “ordinary remand” rule).

    A. The “Specialized Knowledge” Legal Standard

     Fogo de Chao levels three distinct challenges to the
Appeals Office’s legal interpretation of the “specialized
knowledge” test. We agree with Fogo de Chao that the
agency’s conclusion regarding the categorical irrelevance of
culturally acquired knowledge was insufficiently reasoned to
be sustained. We reject the remainder of Fogo de Chao’s
legal challenges on the current record.

    1.   The Relevance of Knowledge and Skills Gained
         Through Culture to the “Specialized Knowledge”
         Test

     In denying the Gasparetto visa, the Appeals Office
concluded that “[t]he 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, even if
an individual’s specific culture itself is limited to a relatively
small population or geographic location.” J.A. 663. Fogo de
Chao challenges that categorical rule as unsupported by the
Puleo and Ohata memoranda or any other previous
administrative precedent and ungrounded in statutory text or
purpose. We hold that the agency has not offered a reasoned
analysis of why the statutory phrase “specialized knowledge”
would woodenly debar any and all knowledge acquired
through one’s cultural traditions, upbringing, or “life
experience,” J.A. 662, or how that rule comports with the
prior agency guidance that the Appeals Office purported to
follow.
                                22
     As an initial matter, nothing in the statute itself textually
excludes all culturally acquired knowledge as a form of
“specialized knowledge,” 8 U.S.C. § 1184(c)(2)(B). In fact,
cultural knowledge appears to fit naturally within the
dictionary definitions that the Puleo Memorandum endorsed
for construing the terms “special” and “advanced.”
Knowledge and skills associated with a particular culture may
be “limited to a relatively small population or geographic
location,” J.A. 663, such that they are “uncommon” or
“distinguished by some unusual quality,” Puleo Memorandum
at 1, J.A. 42. Moreover, knowledge gained through an
employee’s upbringing or “life experience,” like other forms
of specialized knowledge, may take years to acquire such that
it is “beyond the elementary or introductory” and “greatly
developed beyond the initial stage.” Id. at 2, J.A. 43. Finally,
knowledge acquired over time through cultural exposure
combined with first-hand experience may distinguish an
applicant from other employees who cannot learn without
extensive training the skills, practices, instincts, and
contextual judgments that the applicant has amassed and
practiced since childhood. Such knowledge may naturally be
thought of as “surpassing the usual[,] distinct among others of
a kind,” id. at 1, J.A. 42, or “at a higher level than others,” id.
at 2, J.A. 43.

     Rather than address the dictionary definitions embraced
by the agency’s Puleo Memorandum, the Appeals Office tried
to tether its exclusion of such cultural knowledge to the
requirement that “specialized knowledge” be “of the company
product and its application in international markets,” or “of
processes and procedures of the company.” J.A. 663 n.6
(quoting 8 U.S.C. § 1184(c)(2)(B)). But nothing in that
language broadly forecloses all forms of cultural knowledge,
as the record here illustrates.
                               23
      For example, Fogo de Chao came forward with evidence
that its product itself is defined by the cuisine, serving style,
and culinary ethos associated with a particular cultural
practice in Southern Brazil. According to Fogo de Chao’s
submissions, 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.” See Ohata Memorandum at 2, J.A. 49.
In that regard, Fogo de Chao identified a number of concrete
skills vital to its churrascaria business that relate to the
preparation, presentation, and service of numerous types of
meat, all of which “originate in the gaucho lifestyle of rural
southern Brazil, and are passed on from generation to
generation.” J.A. 308. Those skills include, for example, the
ability to be simultaneously responsible for (i) preparing and
cooking five to six skewers of meat on an open grill, (ii)
circulating through the dining room to carve meat for guests,
(iii) educating those guests about both the cuts of meat being
served and gaucho culinary and cultural traditions, and (iv)
monitoring the estimated future demand for food over the
course of the evening. J.A. 462. There is, moreover,
uncontroverted evidence in the record that Gasparetto gained
the knowledge, skill levels, and judgments specifically
relevant to his duties at Fogo de Chao in material part through
experience gained growing up in the south of Brazil and
participating frequently in the churrasco tradition. See J.A.
540–541. Fogo de Chao thus provided evidence that the
“chef plays a [critical] role within the petitioning
organization,” just as the Ohata Memorandum contemplated,
Ohata Memorandum at 2, J.A. 49. Against that backdrop, the
Appeals Office pointed to nothing in the statutory or
regulatory text that explained closing its eyes completely to
the entire category of culturally acquired knowledge and skills
and their relevance to Fogo de Chao’s product.
                               24
     Instead, the Appeals Office highlighted the existence of
other “cultural” nonimmigrant visa classifications in the
statute, and reasoned that the absence of an express reference
to culture in the L-1B visa program indicates a congressional
intent to pigeonhole knowledge with a “cultural component”
into those two contexts. See J.A. 663 & n.6 (citing 8 U.S.C.
§ 1101(a)(15)(P)(iii) (visas for an artist or entertainer seeking
to enter the United States “to perform, teach, or coach as
* * * an artist or entertainer * * * under a commercial or
noncommercial program that is culturally unique”); 8 U.S.C.
§ 1101(a)(15)(Q) (visas for “a participant in an international
cultural exchange program” that is “for the purpose of
providing practical training, employment, and the sharing of
the history, culture, and traditions of the country of the alien’s
nationality”)); see also Fogo de Chao, 959 F. Supp. 2d at 46–
47 n.4 (discussing provisions cited by the Appeals Office).

     But those provisions simply beg the question of whether,
in employing the even more textually capacious phrase
“specialized knowledge,” Congress left any room for
culturally acquired knowledge and skills to be considered as
an aspect of “specialized knowledge.” Certainly nothing in
the text of those two narrowly focused statutory provisions
suggests that Congress meant to isolate cultural
considerations to those two categories, especially since
neither has anything to do with the type of knowledge
deployed in the context of multinational business operations
that Congress focused on for the L-1B visa program.

    As for the previous administrative guidance in this area,
the Appeals Office’s decision lacks any reasoned explanation
of why a chef who “entertain[s] in a particular manner,” or
has analogous “ancillary” duties, Ohata Memorandum at 2,
J.A. 49, may be considered to have specialized knowledge,
unless—and only unless—the particular entertainment
                             25
manner and ancillary duties involve demonstrating and
sharing culturally rooted skills and knowledge.

     Further, to the extent that the Appeals Office meant to
suggest that a company must have an “ownership claim” in
knowledge before it may qualify as “specialized,” J.A. 664, it
does not square that view with the Puleo Memorandum’s
recognition that an employee qualifying for this visa may
obtain specialized knowledge through work at a different
firm, Puleo Memorandum at 3, J.A. 44, or with the Appeals
Office’s own assurance that it was not resurrecting the
proprietary knowledge standard that Congress discarded, J.A.
660.

     To be sure, the Appeals Office could logically conclude
that the mere status of being from a particular region or
culture and any “authenticity” derived from that status alone
is not “knowledge” within the meaning of 8 U.S.C.
§ 1101(a)(15(L). 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. 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.

     For those reasons, we conclude that the Appeals Office
failed to ground its newly adopted, categorical exclusion of
cultural knowledge in statutory text, statutory purpose,
regulatory guidance, or reasoned analysis. This aspect of its
decision accordingly lacks the power to persuade under
Skidmore and, in light of the resulting failure to address
otherwise relevant evidence, the decision before us does not
                               26
appear to have been “based on a consideration of the relevant
factors,” Judulang, 132 S. Ct. at 484 (quoting State Farm, 463
U.S at 43). The agency’s judgment, moreover, “was neither
adequately explained in its decision nor supported by agency
precedent,” and thus it fails the requirement of reasoned
decisionmaking under arbitrary and capricious review as well.
See Fox, 684 F.3d at 75 (quoting Siegel v. SEC, 592 F.3d 147,
164 (D.C. Cir. 2010)).

     The Service nevertheless retains substantial discretion in
considering this question anew on remand. The statutory
definition provides little guidance on this specific issue, and it
is for the agency in the first instance to formulate a rule that
articulates whether and when cultural knowledge can be a
relevant component of specialized knowledge. It likewise is
for the agency to articulate, if deemed appropriate, a line
between, on the one hand, 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. See Orlando Ventura, 537 U.S. at 16–17. We hold
only that, given the statutory text, the dictionary definitions
embraced by the agency, and the prior Service guidance the
agency says it was following in this case, 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.

    2.   Consideration of Economic Inconvenience

    Fogo de Chao also argues that the Appeals Office’s
decision failed to hew to the Puleo and Ohata memoranda
because the decision did not factor in the distinct economic
burden that denying Gasparetto’s transfer to the United States
would inflict on its business. In that regard, Fogo de Chao
                              27
presented evidence to the Service showing that each of its
churrasqueiros went through an 18- to 24-month training
period, and that even after that training period, its non-
Brazilian churrasqueiros still were not performing a majority
of the duties of the position Fogo de Chao requires.

     Fogo de Chao’s assertion that such evidence should be
considered has substantial force.            Agency guidance
specifically identifies the “difficult[y]” and “significant
economic inconvenience” entailed in “impart[ing]”
knowledge “to another individual,” Puleo Memorandum at 3,
J.A. 44, including whether the knowledge could be transferred
within a “reasonable period of time,” Ohata Memorandum at
3, J.A. 50, as relevant indicia of “specialized knowledge.” It
would be difficult for the Appeals Office to plausibly claim,
as it did here, to be following this guidance while dismissing
altogether the relevance of such natural proxies for economic
inconvenience as the amount of in-house training a
company’s employees would have to receive to acquire the
knowledge in question.

     Moreover, consideration of evidence of this type provides
some predictability to a comparative analysis otherwise
relatively devoid of settled guideposts.        After all, to
understand what is “specialized” knowledge, the agency
needs to define with consistency a comparative baseline. “An
item is special only in the sense that it is not ordinary; to
define special one must first define what is ordinary.” 1756,
Inc. v. Attorney General, 745 F. Supp. 9, 14 (D.D.C. 1990).
Both before and after the 1990 amendment, the statute itself
provided little guidance regarding the appropriate “baseline of
ordinary knowledge.” Id. at 15.

    As the parties note, the Ohata Memorandum
disambiguated the inquiry at the margins by identifying the
                                 28
“practitioners in the alien’s field of endeavor” as the relevant
comparator. But, for the most part, that simply kicks the
interpretive can down the road, leaving the scope of the
relevant “field of endeavor” undefined. That specialized
knowledge may ultimately be a “relative and empty idea
which cannot have a plain meaning,” Department Br. 22–23
(quoting 1756, Inc., 745 F. Supp. at 15), is not a feature to be
celebrated and certainly not a license for the government to
apply a sliding scale of specialness that varies from petition to
petition without explanation. Suddenly departing from policy
guidance and rejecting outright the relevance of Fogo de
Chao’s evidence of economic inconvenience threatens just
that. 8

     It is not fair to say, however, that the Appeals Office
decision ignored economic-inconvenience considerations
altogether. After stating that the transferability of knowledge
“is not a determining factor,” J.A. 666, the Appeals Office
discussed how easily at least some of the ancillary skills of a
churrasqueiro chef like Gasparetto may be transferred. The

8
  While Fogo de Chao does not press this point as a separate
objection, the government appears to have conceded at oral
argument that the relevant comparator for Fogo de Chao’s petitions
filed on behalf of its churrasqueiro employees may have changed
as churrascarias became more common in the United States. See
Oral Arg. Tr. 29:12–30:9. The Appeals Office decision noted that
the Vermont Service Center Director had identified the “popularity”
of churrascarias as a potential factor distinguishing this denial
from what Fogo de Chao asserted were more than 200 earlier
approvals. But it is not clear that the Appeals Office itself adopted
that reasoning. J.A. 676. And doing so would seem to contradict
the Appeals Office’s express disavowal of a “specialized
knowledge” test that turns on the availability of such knowledge in
the U.S. labor market.
                              29
decision thus noted that, “[w]hile knowledge specific to
Brazilian gaucho culture is not widely held by skilled chefs,
the petitioner has not supported its claim that this knowledge
is so complex that it couldn’t be mastered within a reasonable
period of time by an employee who was otherwise trained in
the churrasqueiro method.” J.A. 670.

     Nevertheless, the Appeals Office’s consideration of the
difficulties Fogo de Chao says it confronts in teaching
churrasqueiro skills was infected by its legally erroneous,
categorical dismissal of culturally acquired skills and
knowledge. The Ohata Memoranda is explicit that “the length
and complexity” of training and the skills “gained from
significant experience” are important indicia of specialization.
See Ohata Memorandum at 2, 4, J.A. 49, 51. Yet the record
indicates, see supra at 22–23, that cultural acquisition is
simply an immersion form of skills-training and front-line
experience. The Appeals Office decision was devoid of any
reasoned explanation as to why training and skills-acquisition
can qualify as specialized if obtained from a corporate
instructor, but categorically cannot just because they are
learned from family or community members.

     We do not know whether the Appeals Office would
resolve this issue differently if it more directly addressed
Fogo de Chao’s economic-inconvenience evidence and
grappled specifically with the difficulties Fogo de Chao
asserted in transferring culturally rooted knowledge and
experience acquired over a decade or more to new chefs
lacking any analogous baseline set of skills or experience. In
addition, once the role of cultural knowledge is reconsidered,
the agency may weigh differently Fogo de Chao’s evidence
that the role its Brazilian churrasqueiros perform combines
both cultural and a significant period of in-house training.
For those reasons, we remand this issue to the agency for
                               30
further consideration in conjunction with its consideration of
the role of culturally acquired knowledge and skills.

    3.   Inconsistency with Prior Rulings or Precedent

    Fogo de Chao raises additional challenges to the legal
standard applied by the Appeals Office, all of which are
grounded in claims of inconsistency with previous Service
decisions or other precedent. We find no merit in those
objections on this record.

     First, Fogo de Chao argues that the denial of a visa in this
case was an abrupt and unexplained departure from prior
agency practice granting such visas without the cultural-
knowledge-free evidentiary demand imposed here.
Specifically, Fogo de Chao asserts that, from 1997 to 2006,
251 of its previous visa petitions for churrasqueiro chefs were
approved. The Department does not dispute that many such
petitions were approved, but counters that, during the same
time period, more than forty petitions were denied. The
Department then, as the Appeals Office did, dismisses any
previously approved petitions—to the extent they were
factually similar to the Gasparetto petition—as “material and
gross error.” J.A. 677.

     The Department is correct that “[t]he mere fact that the
agency, by mistake or oversight, approved” a visa petition “on
one occasion does not create an automatic entitlement to the
approval of a subsequent petition.” Royal Siam Corp. v.
Chertoff, 484 F.3d 139, 148 (1st Cir. 2007). Yet it may be
that a pattern of visa grants of sufficient magnitude could
obligate the agency to provide a “reasoned explanation for
* * * treating similar situations differently,” ANR Pipeline Co.
v. FERC, 71 F.3d 897, 901 (D.C. Cir. 1995)—or at least
something more reasoned than confessing a decade-long
pattern of “material and gross error.”
                              31
     We need not resolve that question here, however.
Although Fogo de Chao asserted that the prior petitions were
factually equivalent, it never introduced any evidence
corroborating that assertion. Nothing in the administrative
record reveals whether even a sampling of those cases
involved factually and legally similar contexts. Without such
a showing, we cannot conclude that the Department in fact
treated “similar situations differently.” ANR Pipeline, 71 F.3d
at 901.

     Fogo de Chao’s detailed efforts to distinguish the denial
of an L-1B visa classification to another Brazilian steakhouse
chef in Boi Na Braza Atlanta, LLC v. Upchurch, No. 3:04-cv-
2007-L, 2005 WL 2372846 (N.D. Tex. Sept. 27, 2005), aff’d
194 Fed. App’x 248 (5th Cir. 2006), prove the point. Visa
decisions can be fact-intensive, and assessing the evidentiary
record behind any such determination is essential to
evaluating the reasonableness of the agency’s decision. See
IKEA US, Inc. v. Department of Justice, 48 F. Supp. 2d 22, 25
(D.D.C. 1999) (INS did not act arbitrarily and capriciously in
failing to distinguish previous visa petition’s approval where
the employer failed to submit the file to INS for its
consideration), aff’d No. 99-5159, 1999 WL 825420 (D.C.
Cir. Sept. 27, 1999). The evidentiary gap is particularly hard
to understand given that the prior visa decisions involved
Fogo de Chao’s own employees, and so presumably the
company had the necessary information at hand.

    Rather than provide any of that data, Fogo de Chao
pointed to two reports as evidence of inconsistent treatment.
See Fogo de Chao Opening Br. 46–51, 62–63 (citing
DEPARTMENT OF HOMELAND SECURITY OFFICE OF THE
INSPECTOR GENERAL, REVIEW OF VULNERABILITIES AND
POTENTIAL ABUSES OF THE L-1 VISA PROGRAM (Jan. 2006),
reproduced at J.A. 496–538; UNITED STATES CITIZENSHIP
                              32
AND IMMIGRATION   SERVICES OMBUDSMAN, ANNUAL REPORT
2010 (June 30, 2010), reproduced at Opening Br. Addendum
163–306). Neither substantiates Fogo de Chao’s claim.

     To start with, the 2006 report from the Department’s
Office of the Inspector General, and in particular the portion
focusing on the L-1B visa program, simply discusses in very
general terms the 1990 legislative amendment and the
Department’s interpretive memoranda. While the report
states that the Department has “little room” to tighten the
relevant standard administratively, J.A. 506, that simply begs
the question of how that standard has been applied across
cases over the years. It thus does nothing to document an
actual shift in how factually similar petitions have been
disposed of either generally or in connection with Fogo de
Chao’s churrasqueiros specifically.

      The 2010 report from the Service’s Ombudsman, for its
part, criticizes an earlier Appeals Office decision for casting
doubt on the authoritativeness of the Puleo Memorandum.
But even assuming that taking issue with an internal agency
guidance document could constitute inconsistency in any
legally relevant sense, the Appeals Office decision under
review neither cites that disapproved ruling nor discounts the
Puleo Memorandum. Quite the opposite, the Appeals Office
describes the Puleo Memorandum as the “key agency
document relating to the adjudication of L-1B specialized
knowledge visa petitions,” J.A. 650, and discusses it at length
in its analysis, see J.A. 650–651, 653–654, 663, 666.

     Second, Fogo de Chao argues that the Department’s
“narrowly drawn” decision here departs from prior precedent
and legislative history that endorse a more expansive
interpretation of the “specialized knowledge” standard. That
argument suffers from the same flaw as the claim of
                               33
inconsistent treatment because Fogo de Chao never
demonstrates how the actual content of any prior
interpretations differed from the Appeals Office’s analysis in
a way that is relevant to this case.

     All agree that the 1990 legislation broadened the
“specialized knowledge” definition in two specific respects.
It overrode agency precedent requiring that the knowledge or
skill be (i) “proprietary” and (ii) “not readily available in the
United States.” Compare 8 U.S.C. § 1184(c)(2)(B), with 52
Fed. Reg. at 5752. To the extent that the 1990 Act eliminated
those two limitations on “specialized knowledge,” it is true
that the standard became “less[]” restrictive than the
regulatory definition that immediately preceded it. Puleo
Memorandum at 1, J.A. 42. The problem for Fogo de Chao is
that being “less” restrictive in two specific respects is fully
consistent with remaining a “still high” and exacting standard,
Puleo Memorandum at 1, J.A. 42, as long as that standard
does not revive the two limitations that Congress displaced
and represents a reasonable exercise of regulatory discretion.

     The legislative history on which Fogo de Chao relies
does not help its cause. A House Report stating that the
“specialized knowledge” standard was “broadened to
accommodate changes in the international arena,” H.R. Rep.
No. 723(I), 101st Cong., 2d Sess. 69 (1990), simply raises the
question of how much and in what manner the statute was
expanded. Worse still for Fogo de Chao, the Report’s list of
the changes designed to broaden the program’s reach did not
include the amendment of “specialized knowledge.” See id.
Instead, the purpose identified for the “specialized
knowledge” amendment was simply to provide “more
specificity” to the statutory term, addressing a problem that
“[v]arying interpretations” by the agency “ha[d] exacerbated.”
Id.
                              34
    For that reason, the Service’s citation to pre-1990
precedent does not demonstrate that it applied a standard
inconsistent with the new definition, as long as those
authorities were applied consistently with superseding
congressional direction. See Brazil Quality Stones, Inc. v.
Chertoff, 531 F.3d 1063, 1070 n.10 (9th Cir. 2008) (noting in
L-1A visa context that reference to pre-1990 precedent was
appropriate where the precedent addressed an aspect of the
definition of “managerial capacity” unaffected by the 1990
Act).

     For similar reasons, Fogo de Chao’s argument that the
previous visa approvals or unspecified precedent established a
“definitive interpretation” of the Service’s regulation that can
only be changed through notice-and-comment rulemaking or
formal adjudication fails. See Fogo de Chao Opening Br. 50
(quoting Alaska Professional Hunters Ass’n v. FAA, 177 F.3d
1030, 1034 (D.C. Cir. 1999)). Simply identifying outcomes,
stripped of their contextual analysis, falls far short of the
documented record of “express, direct and uniform
interpretation” by the agency required before a fixed legal
rule will be discerned. Association of American Railroads v.
Department of Transp., 198 F.3d 944, 949 (D.C. Cir. 1999).

     Moreover, a definitive legal rule cannot be wrung out of a
pattern of decisions unless the decisionmaker has “the
authority to bind the agency.” Devon Energy Corp. v.
Kempthorne, 551 F.3d 1030, 1040 (D.C. Cir. 2008). No such
authority has been established here where (i) the service
centers that granted Fogo de Chao’s prior petitions lacked the
authority to bind the agency; (ii) from all that Fogo de Chao
has shown, none of the decisions on which it purports to rely
were designated precedential; and (iii) each decision was
expressly “based on the facts and circumstances of each
individual case.” J.A. 660.
                              35
     In sum, based on the limited showing that Fogo de Chao
has made both here and before the Service, it has not met its
burden of demonstrating either an unexplained break from
past practice or settled law, or unreasoned differentiation in
the treatment of similar cases. Of course, to the extent that
the “material and gross error” that the agency indicated might
be lurking in its prior decisions was the consideration of
cultural knowledge, it remains open to the Appeals Office on
remand to consider the significance, if any, of that prior
pattern of decisionmaking.

         B. The Service’s Consideration of Evidence

    1.    Proof of Gasparetto’s        Training    and    Work
          Experience in Brazil

     Beyond its articulation of the relevant legal standard, the
Appeals Office relied on two related evidentiary conclusions
in denying the Gasparetto petition. Specifically, the Appeals
Office found that the company had failed to establish that
Gasparetto had either (a) completed the company’s mandatory
training program or (b) worked a sufficient amount of time in
the churrasqueiro role to be eligible for transfer. Fogo de
Chao disputes the agency’s factual findings on both points.
We find merit in the first of those arguments; the second point
had no apparent independent effect on the Appeals Office
decision.

     First, Fogo de Chao challenges the Appeals Office’s
finding that there was insufficient evidence of Gasparetto’s
completion of the company’s internal 18- to 24-month
churrasqueiro training program, which is a prerequisite
before an employee may be considered for transfer to the
United States.
                               36
     We agree that this conclusion is not supported by
substantial evidence. Frankly, the Appeals Office’s reasoning
on this point is hard to understand. It said in its decision that
Fogo de Chao “did not provide any documentation to confirm
the beneficiary’s completion of such training for the record,”
and that, “[w]ithout documentary evidence to support the
claim, the assertions of counsel will not satisfy the petitioner’s
burden of proof.” J.A. 664 (citations omitted). But Fogo de
Chao’s evidence of Gasparetto’s completion of the training
program went far beyond the “assertions of counsel,” and
even beyond the Chief Executive Officer’s representations in
the cover letter, which the Department now claims was the
fatal evidentiary shortfall.        Department Br. 48–49.
Specifically, the uncontradicted evidence before the Appeals
Office documenting Gasparetto’s completed training included
(i) a sworn affidavit submitted by Fogo de Chao’s Chief
Executive Officer attesting that Gasparetto had “completed
the training program in Brazil,” J.A. 460, (2) Gasparetto’s
curriculum vitae stating that he “graduated and specialized as
waiter churrasqueiro” while working at a Fogo de Chao
restaurant in Sao Paulo, J.A. 541, and (3) the letter from a
Brazilian nutritionist concluding, after reviewing Gasparetto’s
curriculum vitae and information on the churrasqueiro
position at Fogo de Chao, as well as interviewing Gasparetto,
that he had the cultural background and restaurant skills
necessary to fill that position, J.A. 539. None of that
additional evidence is referenced in the Appeals Office
opinion. See J.A. 664–666, 673–674.

    While the substantial-evidence standard of review is
generous, it is not boundless; it does not allow an agency to
close its eyes to on-point and uncontradicted record evidence
without any explanation at all. See Soltane, 381 F.3d at 151
(“[A]n agency is generally under at least a minimal obligation
to provide adequate reasons explaining why it has rejected
                              37
uncontradicted evidence.”). That is especially true here where
at no time prior to reopening the administrative case had the
Service questioned the sufficiency of Fogo de Chao’s proof
on this matter or requested further evidence.

     Second, and relatedly, Fogo de Chao challenges the
Appeals Office’s conclusion that Gasparetto appears to have
held the same position throughout his time working for Fogo
de Chao, and, as a result, either was able to work as a
churrasqueiro chef without any training or had not worked a
full year in a specialized knowledge capacity before his
proposed transfer to the United States.

     Fogo de Chao argues that the Appeals Office improperly
focused on Gasparetto’s job title (“waiter churrasqueiro” or
“garcon churras,” J.A. 339–350, 540), rather than on his job
duties. That argument would have more traction if Fogo de
Chao had identified evidence in the record describing when
and how Gasparetto’s duties changed as a result of the
training, even if his position remained the same. The record
nonetheless does indicate that, while the company hires
people whose preexisting skills and knowledge allow them to
perform the churrasqueiro chef duties, the training remains
necessary to some extent to instruct those chefs in how to
apply their knowledge in Fogo de Chao’s business in
international markets.        There thus is no apparent
inconsistency in Gasparetto’s duties or title remaining the
same while he completed his training. In any event,
regardless of whether the inconsistency in Gasparetto’s duties
and title that the Appeals Office perceived is borne out by the
record, that gap appears to be of no moment because neither
the Appeals Office decision nor the Department on appeal
identifies that concern as an independently sufficient basis for
the denial of Gasparetto’s visa.
                               38
    2.   Additional Evidentiary Objections

     Fogo de Chao raises a number of objections to the second
evidentiary pillar underlying the Appeals Office decision:
that Fogo de Chao had not established that the churrasqueiro
position itself requires “specialized knowledge.” We need not
wade into those disputes, however, because the Appeals
Office’s conclusion that culturally acquired knowledge is
categorically irrelevant to showing “specialized knowledge”
pervaded its analysis of the churrasqueiro position as well.

     The Appeals Office opened this portion of its analysis by
reiterating that “the beneficiary’s knowledge of the culture
and culinary traditions of his native region of Brazil is general
knowledge,” and concluded that it is such cultural and
traditional knowledge “that equips him to be a churrasqueiro
chef in the petitioner’s industry.” J.A. 666. Similarly, Fogo
de Chao submitted an expert report explaining the business’s
critical reliance on the presence of a “core group” of Brazilian
churrasqueiros at each of its restaurants, J.A. 672, and
indicating that the Brazilian churrasqueiros have some duties
that are distinct from Fogo de Chao’s non-Brazilian
employees, see J.A. 307, 309. The Appeals Office dismissed
that evidence by reiterating its conclusion that “an alien
cannot qualify for this classification based primarily upon his
or her life experience or culture.” J.A. 672. Another expert’s
report was dismissed because “the L-1B specialized
knowledge visa has no cultural component.” Id.

     While Fogo de Chao has not persuasively responded to
every evidentiary defect identified by the Appeals Office, it
did submit evidence, including an expert’s report, addressing
the distinction between its Brazilian and non-Brazilian
churrasqueiro employees. The Appeals Office disregarded
this evidence as part and parcel of its as-yet unjustified
                               39
categorical exclusion of cultural knowledge. Accordingly, the
Appeals Office’s factual conclusions must be remanded for
further explanation as well.

          C. Alleged Prejudgment by the Service

     Finally, Fogo de Chao argues that the Service’s process
as a whole was tainted because, in its view, the agency had
prejudged the Gasparetto petition. Where a single agency
decisionmaker is challenged in this fashion, we “will set aside
an official’s decision not to recuse ‘only where he has
demonstrably made up his mind about important and specific
factual questions and is impervious to contrary evidence.’”
Power v. FLRA, 146 F.3d 995, 1001–1002 (D.C. Cir. 1998)
(brackets and additional internal quotation marks omitted)
(quoting Metropolitan Council of NAACP Branches v. FCC,
46 F.3d 1154, 1165 (D.C. Cir. 1995)). Fogo de Chao has not
met that high burden.

     The sole, specific evidence of alleged prejudgment
proffered is that, in opposing Fogo de Chao’s motion to refer
this case to mediation, the government’s opposition brief
referenced the Service’s “determination that these individuals
do not qualify for L-1B ‘specialized knowledge’ visas,” and
concluded that the parties “are at an impasse.” J.A. 27.
While that statement was made shortly after the agency had
reopened the proceedings on Gasparetto’s petition, it was
argumentation in a brief made in connection with settlement
discussions encompassing, on Fogo de Chao’s part, not just
the Gasparetto visa application, but also its future petitions as
well. Id. at 27–28.

    Equally importantly, the sentence in question was not
authored by the Vermont Service Center Director who was
considering Fogo de Chao’s application upon reopening or by
any member of the Appeals Office. It was made by litigation
                              40
counsel in a court filing. That does not come close to
demonstrating that “the final decisionmaker has * * * made a
decision” in advance of further proceedings. Volvo GM
Heavy Truck Corp. v. Department of Labor, 118 F.3d 205,
214 & n.12 (4th Cir. 1997) (rejecting attempt to rely on
agency litigating position) (emphasis added).

     Fogo de Chao’s reliance on Cinderella Career and
Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C. Cir.
1970), is misplaced. In that case, right after the Federal Trade
Commission staff announced its intention to appeal a decision
to the full Commission, the Commission’s Chairman gave a
speech citing two examples of unfair and deceptive practices
drawn directly from the case he was to hear. See id. at 589–
590. We concluded that the Chairman’s failure to recuse was
a denial of due process because “a disinterested observer may
conclude that the agency has in some measure adjudged the
facts as well as the law of a particular case in advance of
hearing it.” Id. at 591 (brackets omitted) (quoting Gilligan,
Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir. 1959)).

     That bears no resemblance to this case. An isolated
statement in an adversarial court filing by counsel reciting the
agency’s litigation position does not remotely establish that
the actual decisionmaker has a closed mind and is impervious
to evidence or argument.

                   D. Appropriate Relief

     In reviewing agency action under 5 U.S.C. § 706(2), this
court is required to take “due account * * * of the rule of
prejudicial error,” id. Where, as here, an agency has set out
multiple independent grounds for a decision, “we will affirm
the agency so long as any one of the grounds is valid, unless it
is demonstrated that the agency would not have acted on that
basis if the alternative grounds were unavailable.” BDPCS,
                               41
Inc. v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) (Roberts,
J.). Where the agency has not afforded individual weight to
the alternative grounds, however, the court may uphold the
decision only “as long as one [ground] is valid and the agency
would clearly have acted on that ground even if the other
were unavailable.” Bally’s Park Place, Inc. v. NLRB, 646
F.3d 929, 939 (D.C. Cir. 2011) (internal quotation marks
omitted) (quoting Casino Airlines, Inc. v. Nat’l Transp. Safety
Bd., 439 F.3d 715, 717 (D.C. Cir. 2006)).

      Here, the insufficiently reasoned, categorical rejection of
cultural knowledge as a relevant component of “specialized
knowledge,” the blinkered review of the evidence of
Gasparetto’s training, and the agency’s reliance on its
cultural-knowledge bar in multiple aspects of its decision
preclude us from confidently saying that the agency would
have resolved the Gasparetto petition in the same manner
absent those errors. Indeed, the Appeals Office itself
described the role of cultural knowledge—“whether a
beneficiary’s life experience and inherent knowledge of his or
her own native culture and traditions can constitute
‘specialized knowledge’ within the meaning of the statutory
and regulatory definitions”—as “a critical question before
[it].” J.A 662. Given the errors identified in that ruling, along
with other missteps in its analysis, “[t]he ‘proper course’ is
* * * to ‘remand to the agency for additional investigation or
explanation.’” Soltane, 381 F.3d at 152 (quoting Florida
Power & Light Co. v. Lorion, 170 U.S. 729, 744 (1985)); see
also Love Korean Church v. Chertoff, 549 F.3d 749, 759–760
(9th Cir. 2008) (same, vacating the Appeals Office’s
decision).

    Before the district court, Fogo de Chao also sought
mandamus relief and to compel agency action unlawfully
withheld or unreasonably delayed under 5 U.S.C. § 706(1).
                               42
While we are mindful of the length of time these proceedings
have already consumed, Fogo de Chao has not argued its
entitlement to any of those more extraordinary remedies on
appeal, nor has it demonstrated that this case warrants a
remand to the agency with specific instructions. We are
confident that the Department will handle this matter with
appropriate dispatch and, if not, Fogo de Chao can seek relief
from the district court in the first instance.

     In closing, we pause to note our puzzlement over the
dissent’s disagreement. For the most part, the dissenting
opinion opposes what it perceives to be Fogo de Chao’s
“argument” (Dissent at 3)—which is not what is under review
here. And it endorses a perceived agency “position” (Dissent
at 2), but makes no effort to defend the agency’s actual
decision adopting a categorical legal rule against cultural
knowledge and skills forming any component of “specialized
knowledge.”

     Specifically, the dissenting opinion “fully agree[s]” with
what it labels “the agency’s longstanding position” that “one’s
country of origin, or cultural background, does not constitute
specialized knowledge.” Dissent at 2. There is, however,
nothing “longstanding” about the cultural-knowledge bar.
Quite the opposite, it was the agency decision under review
here that gave birth to that rule. See J.A. 662 (identifying as a
“critical question” whether an employee’s “life experience
and inherent knowledge of his or her own culture and
traditions can constitute ‘specialized knowledge’”); J.A. 571
(agency determination that the case presents that “unusually
complex or novel issue”).

    To the extent the dissenting opinion’s concern is simply
with the proposition that an individual’s country of origin or
background—the “authentic[ity]” of that person’s national
                              43
identity (Dissent at 2)—constitutes specialized knowledge, we
may well agree. It may be that the agency could reasonably
conclude that mere background and cultural identity divorced
from distinct knowledge and skills seem far removed from the
concept of “specialized knowledge.” See supra at 25–26. But
under settled principles of administrative law, it is for the
agency to make such a judgment in the first instance, rather
than for the dissent to write it without any citation to the
actual agency decision under review and then singlehandedly
declare it the agency’s own “position” (Dissent at 2). See,
e.g., Calpine Corp. v. FERC, 702 F.3d 41, 46 (D.C. Cir. 2012)
(“[I]t is axiomatic that agency decisions may not be affirmed
on grounds not actually relied upon by the agency.”); Otay
Mesa Property, L.P. v. Department of Interior, 646 F.3d 914,
918 (D.C. Cir. 2011) (noting that, if a particular conclusion in
fact served as the agency’s basis for arriving at a decision
under review, the agency “must say so in its agency decision
and justify that determination”).

     Perhaps, instead, the dissenting opinion means to
embrace the agency’s categorical rule woodenly excluding
any and all knowledge or skills acquired by an employee
solely because those skills and knowledge were learned from
family or community rather than in-company trainers. But in
so doing, the dissenting opinion fails to identify what in the
“immigration statutes as written” (Dissent at 4) or the
articulated reasoning of the agency decision makes the source
of specialized knowledge singlehandedly dispositive. It thus
remains a mystery after reading the dissent why (for example)
a chef “singing or entertaining in a particular manner” in a
themed restaurant, Ohata Memorandum at 2, J.A. 49, may
have specialized knowledge if that ability to entertain came
from in-house training, but is categorically disqualified if the
same knowledge derives from a decade or more of actual life
experience learning and performing those skills.
                                44
     The dissenting opinion separately objects that the
majority opinion makes an unwarranted evidentiary judgment
by “say[ing] * * * that Fogo de Chao may have put forth
sufficient evidence that American chefs could not be trained
to do these jobs within a reasonable amount of time.” Dissent
at 4. As the portion of the majority opinion that the dissenting
opinion cites demonstrates, however, no such sweeping
evidentiary judgment has been made. We hold only that the
agency must actually apply its own legal test and itself
address directly whether or not Fogo de Chao’s evidence of
training difficulties demonstrated an inability to train
domestic workers within a “reasonable period of time,” Ohata
Memorandum at 3, J.A. 50, rather than using its legally
erroneous categorical rule to detour around the reasonable-
training issue. See supra at 28-30, 38-39, 40-41. 9

    Moreover, if this case were really just about whether
“American chefs either can’t learn to cook or won’t cook
Brazilian steaks” (Dissent at 3), that surely would not have
taken a 53-page agency opinion addressing what the Director
deemed to be “an unusually complex or novel issue,” J.A.
571. The dissenting opinion’s view backhands (i) the actual
description of the churrasqueiros’ duties in the record, J.A.
462, which outlines seventeen distinct cooking and non-
cooking skills that must be acquired, (ii) the Ohata
Memorandum’s express recognition that cooking combined
with “ancillary” duties could constitute specialized
knowledge, J.A. 49, (iii) the agency’s prior practice granting
more than 200 of Fogo de Chao’s L-1B applications for its

9
  An additional problem is that the Appeals Office reached that
categorical judgment by cherry picking from, rather than
“adher[ing] to and appl[ying]” (Dissent at 1), the two prior policy
memoranda it purported to follow. See supra at 21–25.
                                45
churrasqueiros, and (iv) the fact that Fogo de Chao
commonly or even predominantly hires American chefs in its
U.S. restaurants, see J.A. 309, 454; Oral Arg. Tr. 57:19–22.
Fogo de Chao’s position here is simply that it needs
Gasparetto to help train those American chefs in churrascaria
techniques and knowledge, and to perform the service- and
team-related skills that Fogo de Chao says have proven
particularly difficult to transfer.

     Finally, while the dissenting opinion defends the agency
decision as a “clamp[] down” following the 2004 Ohata
Memorandum (Dissent at 5), it does so for policy reasons that
are entirely absent from the agency decision under review.
Indeed, the agency decision refused to even acknowledge the
shift in approach that the dissent articulates on its behalf. On
top of that, the government does not even contest that it
continued to confer L-1B status on Fogo de Chao’s
churrasqueiros for at least two more years after the Ohata
Memorandum issued. See J.A. 676-677; Fogo de Chao
Opening Br. 9 n.2; Oral Arg. Tr. 16:22-17:18; cf. SEC v.
Chenery Corp., 318 U.S. 80, 87-88 (1943). 10


10
  To the extent the dissenting opinion’s concern is with “economic
expediency” and the displacement of American workers (Dissent at
3-4), it was Congress, not Fogo de Chao, that created the L-1B visa
program to bring foreign workers with specialized knowledge into
United States businesses. See, e.g., H.R. Rep. No. 851, 91st Cong.,
2d Sess. 5–6 (1970) (“[I]ntercompany transfers have contributed
immeasurably to the growth of American enterprise” and
“international trade.”). Furthermore, it was the Executive Branch
that decided both (i) that the time and resource-expenses associated
with training domestic workers (including chefs and specialty cooks
that have ancillary duties) should inform the “specialized
knowledge” inquiry, and (ii) that Fogo de Chao’s churrasqueiro
                                 46
     We accordingly remand the matter to the district court
with instructions to vacate the Appeals Office’s decision and
to remand to the agency for further proceedings consistent
with this opinion.

                                                        So ordered.




chefs met that test more than 200 times (apparently without creating
any “substantial loophole” in the visa program (Dissent at 2)).
Perhaps the dissent disagrees with those policy judgments or the
agency’s past practice. But our Constitution places such sensitive
immigration and economic judgments squarely in the hands of the
Political Branches, not the courts. See Arizona v. United States,
132 S. Ct. 2492, 2510 (2012); United States v. Valenzuela-Bernal,
458 U.S. 858, 864 (1982) (“The power to regulate immigration—an
attribute of sovereignty essential to the preservation of any nation—
has been entrusted by the Constitution to the political branches[.]”).
     KAVANAUGH, Circuit Judge, dissenting: Fogo de Chao
operates Brazilian steakhouses in the United States. It wants
to employ Brazilian chefs rather than American chefs in these
steakhouses. The question under the immigration statute at
issue in this case is whether Fogo de Chao’s Brazilian chefs
possess “specialized knowledge.” 8 U.S.C. § 1101(a)(15)(L).
If so, these Brazilian chefs may obtain L1-B visas to work in
the United States.

     In 2004, United States Citizenship and Immigration
Services (known as USCIS) announced its determination that
foreign chefs seeking to work in ethnic restaurants in the
United States “generally are not considered to have
‘specialized knowledge.’” USCIS Memorandum (Sept. 9,
2004) at 1, reprinted in Joint Appendix (“J.A.”) 48. In this
case, USCIS adhered to and applied that now-longstanding
agency policy, concluding that Fogo de Chao’s Brazilian
chefs do not possess specialized knowledge for purposes of
this visa program. The District Court upheld the agency’s
decision.

     The majority opinion now overturns the agency’s
decision. In doing so, the majority opinion says that it must
decide the case without any meaningful deference (under
Chevron, State Farm, or otherwise) to the agency’s legal
analysis and factual conclusions. I will assume for the sake of
argument that the majority opinion is right to afford no
meaningful deference to the agency. But even reviewing the
matter de novo, I agree with the agency’s decision and
therefore would uphold it.

     Fogo de Chao contends that Brazilian chefs have
specialized knowledge based on: (i) the chefs’ knowledge of
Brazilian culture and culinary practices from growing up and
learning how to cook meat in rural Brazil and (ii) the time it
would allegedly take American chefs to learn how to cook
                                 2
Brazilian steaks.      The agency correctly rejected those
arguments.

     As to Fogo de Chao’s first argument, its so-called
“cultural” argument, I fully agree with the agency’s
longstanding position – which it relied on in this case – that
one’s country of origin, or cultural background, does not
constitute specialized knowledge under this immigration
statute for purposes of being a chef or otherwise working in
an ethnic restaurant or bar in the United States. See 2004
USCIS Memorandum at 2-3. Fogo de Chao says that it wants
“authentic” Brazilian chefs in its U.S. restaurants. Tr. of Oral
Arg. 7, 19, 20, 22-23. But 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.

     As to Fogo de Chao’s second contention – that the
Brazilian chefs have specialized knowledge because it takes
significant time for American chefs to learn how to cook
Brazilian steaks – I agree with the agency that Fogo de Chao
failed to prove that claim. Put simply, the record does not
establish that Fogo de Chao’s Brazilian chefs possess skills
that American chefs cannot learn within a reasonable amount
of time.1 At oral argument, Fogo de Chao asserted that in
“Fogo’s experience,” a cook “born in America” cannot learn
to cook Brazilian steaks as well as a Brazilian-born person.

    1
       Fogo de Chao agrees that the relevant question for this aspect
of its argument is whether American chefs could be trained to do
the job within a reasonable amount of time. See, e.g., Tr. of Oral
Arg. 4 (“Fogo completely agrees” with the proposition that “recipes
and cooking techniques that could be learned by a chef through
exposure to the recipe or cooking techniques for a brief or moderate
period of time generally do not constitute specialized knowledge.”).
                              3
Tr. of Oral Arg. 57. But the record demonstrates that Fogo de
Chao’s chefs perform tasks that can be readily learned by
American chefs, such as talking with customers while
cooking several cuts of meat on an open grill. See J.A. 631-
32; cf. Maj. Op. at 23 (emphasizing that Fogo’s chefs engage
in “preparing and cooking five to six skewers of meat on an
open grill,” “circulating through the dining room to carve
meat for guests,” and “educating those guests about both the
cuts of meat being served and gaucho culinary and cultural
traditions”). Indeed, Fogo de Chao already employs some
American chefs in its U.S. steakhouses, which belies Fogo’s
contention that Americans cannot do the job. Moreover,
reading the record with 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.

     Ultimately, Fogo de Chao’s argument is that American
chefs either can’t learn to cook or won’t cook Brazilian
steaks. See, e.g., Tr. of Oral Arg. 7-9, 57. But the
“Americans can’t learn to cook” proposition is a factually
unsupported stereotype that finds no home in the specialized
knowledge visa program. And the “Americans won’t cook”
proposition in the end is just an economic argument. Like
other restaurants, Fogo de Chao must compete in the chef
market by offering better wages or benefits to attract quality
chefs. Fogo de Chao undoubtedly would save money if it
could simply import experienced Brazilian chefs rather than
hiring and training only American chefs to cook at its
steakhouses here in the United States. And at bottom, that
                                  4
seems to be at least part of what is going on in this case –
namely, Fogo’s desire to cut labor costs masquerading as
specialized knowledge. But under the provision of the
immigration laws at issue here, mere economic expediency
does not authorize an employer to displace American workers
for foreign workers.

     For its part, the majority opinion does not fully embrace
Fogo de Chao’s broad “cultural” argument. But the majority
opinion says (contrary to the agency and the District Court)
that Fogo de Chao may have put forth sufficient evidence that
American chefs could not be trained to do these jobs within a
reasonable amount of time. See Maj. Op. at 26-30. As I have
explained, I respectfully disagree with that analysis of the
factual record in this case.

                                ***

     The United States is a nation of immigrants. In our
constitutional system, Congress and the President determine
the circumstances under which foreign citizens may enter the
country. The judicial task is far narrower: to apply the
immigration statutes as written. By claiming that its Brazilian
chefs possess “cultural” knowledge and skills that cannot be
learned by Americans within a reasonable time, Fogo de Chao
has attempted an end-run around the carefully circumscribed
specialized knowledge visa program.2 For a brief time, Fogo
de Chao convinced some lower-level agency officials to issue
specialized knowledge visas for its chefs. But in this case,

     2
        In critiquing this dissent, the majority opinion says that
sensitive immigration judgments are “squarely in the hands of the
Political Branches.” Maj. Op. at 46 n.10. It seems unusual for the
majority opinion to rely on that principle in response to this dissent
given that it is the majority opinion that overturns the decision of
the Executive Branch in this case.
                                 5
applying its definitive 2004 policy regarding foreign chefs,3
the agency clamped down and said no to Fogo de Chao. This
case does not raise the question of how other visa categories
might apply to foreign workers such as these chefs. But
under this provision of the immigration laws, I would uphold
the agency’s decision and affirm the judgment of the District
Court. I respectfully dissent.4




    3
       The agency decision in this case repeatedly referenced the
agency’s 2004 policy, stating for example: “The 2004 Ohata
Memorandum indicates that chefs and specialty cooks
presumptively do not have ‘specialized knowledge’ even if they
possess knowledge of a restaurant’s special food preparation
techniques acquired through training. . . . Here, the petitioner
claims that the knowledge required to perform the ancillary duties
of a churrasqueiro chef comes primarily from the beneficiary’s
‘unique life experience’ and upbringing in the gaucho culture,
rather than from in-house training. The Ohata Memorandum makes
no reference to cultural knowledge as a source of specialized
knowledge.” USCIS Appeals Office Decision at 45, reprinted in
J.A. 670.
     4
       Although I disagree with the majority opinion’s conclusion, I
note one point that might be relevant going forward. From my
reading of the majority opinion, it appears that the agency could
permissibly adopt a binding regulation (not just a policy memo)
that would receive Chevron deference and that would make clear
that workers such as these Fogo de Chao chefs do not possess
specialized knowledge under this immigration statute. See United
States v. Mead Corp., 533 U.S. 218, 229-30 (2001). Whether the
agency chooses to do so is of course up to the agency.
