REGGIE B. WALTON, District Judge.
This case, which implicates the Immigration and Nationality Act, 8 U.S.C. § 1101 (2006), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 (2006), is currently before the Court on the parties' cross motions for summary judgment. For the following reasons, the Court must grant the defendants' motion for summary judgment and deny the plaintiff's motion for summary judgment.
The Immigration and Nationality Act of 1990 sets forth the criteria under which foreign nationals may receive immigrant or nonimmigrant visas in order to lawfully study, work, or reside in the United States. 8 U.S.C. § 1151. Among the various visas granting access to the country is one for a nonimmigrant individual
Id. § 1101(a)(15)(L). The Act provides further that "an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company 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." Id. § 1184(c)(2)(B). And the Act's implementing regulations define specialized knowledge as:
8 C.F.R. § 214.2(l)(1)(ii)(D). The United States Customs and Immigration Service ("USCIS"), which is part of the Department of Homeland Security, has further interpreted specialized knowledge "through historical precedent decisions and numerous internal policy memoranda." See Administrative Record ("AR") at 5 (citing Matter of Penner, 18 I. & N. Dec. 49 (Comm'r 1982); Memorandum of James A. Puleo, Executive Assoc. Comm'r, Immigration and Naturalization Service, Interpretation of Special Knowledge (Mar. 9, 1994) ("Puleo Memorandum"); Memorandum of Fujie Ohata, Director, Service Center Operations, USCIS, Interpretation of Specialized Knowledge for Chefs and Specialty Cooks Seeking L-1 B Status (Sept. 9, 2004) ("2004 Ohata Memorandum")).
For an individual to obtain an L-1B visa, the American company that seeks to hire the employee "must file a petition on Form I-129, Petition for Nonimmigrant Worker." 8 C.F.R. § 214.2(l)(2)(i). Among other types of evidence, the petition must be accompanied by
8 C.F.R. § 214.2(l)(3)(ii)-(iv).
The plaintiff, Fogo de Chao ("Fogo"), owns and operates a chain of churrascarias, or Brazilian steakhouses, in several locations in both Brazil and the United States. AR at 842. Its first United States restaurant opened in 1997 in Dallas, Texas, and "[t]oday, Fogo has steakhouses in six locations in Brazil, and in sixteen cities throughout the [United States]." Id. at 843. The staff of each steakhouse includes "genuine Brazilian gaucho chefs (known as churrasqueiros), who grew up as gauchos in the rural pampas region of Southern Brazil." Id. The churrasqueiros, "specialize[] in churrasco, a traditional method of preparing and serving meat that descended from the gauchos or cowboys of the Rio Grande do Sul region of southern Brazil." Id. at 3 n. 2.
The chefs at Fogo begin their careers by training for at least two years at one of the Brazilian steakhouses, after which certain chefs are chosen for potential transfer to
Fogo chose Rones Gasparetto as an L-1B transferee candidate after he expressed interest in a transfer, id. at 849, and then filed an L-1B visa petition (the "Gasparetto Petition") with the Vermont Service Center of the USCIS on his behalf on February 4, 2010, id. at 81-322, 359. In the petition, Fogo represented that, "[l]ike all of [its] other churrasqueiros in Brazil, Mr. Gasparetto is a genuine gaucho, born and raised in the Rio Grande do Sul region," and "[h]e has well more than two years' experience as a churrasqueiro in Fogo Brazilian restaurants." Id. at 849. Fogo represented also that Mr. Gasparetto had "completed the training program in Brazil." Id.
Thereafter, the USCIS "determined that the petition ... was not approvable on the record; that [the] petitioner had not met the burden of persuasion; and that additional evidence was needed." Id. at 359. The USCIS then "issued a[] [Request for Evidence] on February 19, 2010, ... which explained that [the] USCIS had reviewed the case and found insufficient evidence that the beneficiary [Mr. Gasparetto] was eligible for L status as an intracompany transferee in a position requiring or involving specialized knowledge." Id.; see also id. at 323-25. Fogo responded to the Request for Evidence on May 5, 2010. Id. at 326-57. The "USCIS re-reviewed the record in light of [Fogo's] response but concluded that [Fogo] still had not established" that Mr. Gasparetto was eligible for an L-1B visa, and thus denied the petition on May 20, 2010. Id. at 360.
Fogo filed a motion with the USCIS to reconsider the denial, but later requested to withdraw the motion. Id. at 360-61. The USCIS then reopened the petition "on its own motion" on October 25, 2010, id. at 361, 545, and Fogo responded to that motion on April 26, 2011, id. at 361, 373-538. The response included "a submission of new arguments and additional evidence." Id. at 361. The USCIS again found, "[a]fter a complete review of the record of proceeding, ... that the grounds for denial ha[d] not been overcome," and therefore reaffirmed the denial of the Gasparetto Petition. Id. at 371.
Because the USCIS also found that "th[e] case involves an unusually complex or novel issue of law or fact," the decision was "certif[ied] ... to the Administrative Appeals Office (AAO)." Id. In doing so, the "USCIS [sought] clarification on application of regulation to the particular fact pattern presented by petitions filed by Fogo ... for specialized knowledge intracompany transferees for the position of churrasqueiro and for [Mr. Gasparetto] in particular." Id.
The Administrative Appeals Office considered Fogo's submissions, including its initial filing and the sixteen attached exhibits, id. at 9, the additional information submitted in response to the Request for Evidence, id. at 13-14, and supplemental briefs and additional evidence submitted directly to the Office, id. at 4. In its decision, the Office addressed
Although Fogo instituted the current action after the initial denial of the Gasparetto Petition, the parties filed a joint motion to stay the proceedings while the defendants reconsidered the petition. See ECF No. 30; March 28, 2011 Minute Order (granting stay of proceedings). Upon the Administrative Appeals Office's final adjudication affirming the denial of the petition, the parties filed a joint status report agreeing that:
ECF No. 34 at 2. The parties subsequently filed cross motions for summary judgment, which are currently before the Court. Fogo contends that the defendants violated the Immigration and Nationality Act of 1990, the "specialized knowledge" regulations promulgated thereunder, and the APA. Pl.'s Mot. at 1-2. The defendants contend that they complied with the APA because the Administrative Record supports the Administrative Appeals Office's decision, and because the decision was based on a reasonable interpretation the
"Summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review." Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F.Supp.2d 42, 52 (D.D.C.2010) (citing Stuttering Found. of Am. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C.2007)), aff'd, 408 Fed.Appx. 383 (D.C.Cir.2010); see also Richards v. INS, 554 F.2d 1173, 1177 & n. 28 (D.C.Cir.1977). But due to the limited role a court plays in reviewing the administrative record, the typical summary judgment standards set forth in Federal Rule of Civil Procedure 56 are not applicable. Stuttering, 498 F.Supp.2d at 207. Rather, "[u]nder the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas `the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'" Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.1985)). In other words, "when a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal," and "[t]he `entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001) (footnote and citations omitted).
Fogo argues that the Administrative Appeals Office violated the Immigration and Nationality Act of 1990 in two ways: "(1) by improperly relying on the repudiated specialized knowledge standard found [in] its 1987 regulations and based on the 1970 Act's legislative history; and (2) by resurrecting evidentiary tests long-since invalidated by the 1990 Act." Pl.'s Mem. at 30.
"When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus, "[w]here ... the plain language of [a] statute is clear, the court generally will not inquire further into its meaning." Qi-Zhuo v. Meissner, 70 F.3d 136, 140 (D.C.Cir.1995). If Congress' intent is unclear, the court proceeds to the second step under Chevron, under which the court must "defer to the agency's interpretation as long as it is `based on a permissible construction of the statute.'" Bluewater Network v. EPA, 372 F.3d 404, 410 (D.C.Cir.2004) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778).
As to Chevron step one, the Immigration and Nationality Act unambiguously provides that, with certain exceptions not applicable here, "[t]he Secretary of Homeland Security shall be charged with the administration and enforcement of [the Act] and all other laws relating to the immigration and naturalization of aliens." 8 U.S.C. § 1103(a)(1). Although Congress included no statutory definition of specialized knowledge in the Immigration and Nationality Act of 1970, it did include a definition when it enacted the Immigration and Nationality Act of 1990. The definition in the 1990 Act provides that "an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product
In the absence of an unambiguous and plain meaning, "the court may be forced to look to the general purpose of Congress in enacting the statute and to its legislative history for helpful cues." United States v. Braxtonbrown-Smith, 278 F.3d 1348, 1352 (D.C.Cir.2002). There are only two pieces of legislative history that address the meaning of "specialized knowledge" as that term is used with respect to L-113 visas. The first is a 1970 House Committee Report, H.R.Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, which discusses the initial implementation of the L-1B nonimmigrant intra-company transferee visa. The report indicates that the addition of such visas "would help eliminate problems [then] faced by American companies having offices abroad in transferring key personnel freely within the organization. This proposal would meet the objective of American industry which has been seriously hampered in transferring personnel, particularly from Canada." H.R.Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. at 2753-54. The report further stated that "the proposed `L' category will not be large. The class of persons eligible for such nonimmigrant visas is narrowly drawn and will be carefully regulated and monitored by the Immigration and Naturalization Service." Id. at 2754.
Second, and as relevant here, is a 1990 House Committee Report, H.R. Rep. No. 101-723(I) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, which addresses the 1990 amendment that introduced the statutory definition of specialized knowledge. Fogo correctly argues that the legislative history indicates that Congress, in amending the provisions of the statute concerning L-1B visas, intended to broaden the visa category. Pl.'s Mem. at 31; see H.R.Rep. No. 101-723(I) (1990), reprinted in 1990 U.S.C.C.A.N. at 6749 ("Th[e] [L] visa has been a valuable asset in furthering relations with other countries but the Committee believes it must be broadened to accommodate changes in the international arena."). The Committee enumerated four specific ways in which the 1990 Act was intended to broaden the L visa program, namely: (1) "allow[ing] accounting
The "more specific" definition contained in the report is the same as the definition in the statute itself: "special knowledge of the company product and its application in international markets, or an advanced level knowledge of processes and procedures of the company." Id.; see also 8 U.S.C. § 1184(c)(2)(B). The legislative history thus does nothing to aid the Court in determining Congress' intent concerning the meaning of specialized knowledge.
The Court must therefore proceed to Chevron step two. Under this step, if
Chevron, 467 U.S. at 843, 104 S.Ct. 2778 (footnotes omitted). But "[t]he court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. at 843 n. 11, 104 S.Ct. 2778.
The Department of Homeland Security, through its USCIS component, has interpreted the term specialized knowledge both through the regulations discussed above, and in the Puleo and Ohata Memoranda. The Puleo Memorandum states:
Defs.' Mem., Exhibit ("Ex.") A (Puleo Memorandum) at 1-2.
Another 2002 memorandum, authored by former Director of Service Center Operations at the USCIS, Fujie Ohata, reiterates:
Defs.' Mem., Ex. B (Memorandum of Fujie Ohata, Director, Service Center Operations, USCIS, Interpretation of Specialized Knowledge (Dec. 20, 2002) ("2002 Ohata Memorandum")) at 1-2.
Finally, a 2004 Ohata Memorandum, which specifically addresses "Chefs and Specialty Cooks seeking L-1B status," states:
Defs.' Mem., Ex. C (2004 Ohata Memorandum) at 1-3.
It is well understood that "[d]eference in accordance with Chevron ... is warranted only `when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.'" Gonzales v. Oregon, 546 U.S. 243, 255-56, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (quoting United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). And "[i]f the agency's interpretation is `reasonable,' then it is entitled to deference." McGrady v. Mabus, 635 F.Supp.2d 6, 14 (D.D.C.2009) (citing Sierra Club v. EPA, 536 F.3d 673, 677 (D.C.Cir. 2008)). Courts have found dictionary definitions helpful in determining whether an agency's interpretation is reasonable. See, e.g., Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666-67, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007); Int'l Bhd. of Teamsters v. U.S. Dep't of Transp., 724 F.3d 206, 215 (D.C.Cir.2013) (finding that "the agency reasonably concluded that the ordinary meaning of" a statutory term was the definition found in Webster's New International Dictionary).
As noted above, Congress has unambiguously deferred to the expertise of the Department of Homeland Security, and in turn the USCIS, to implement the Immigration and Nationality Act of 1990. 8 U.S.C. § 1103(a)(1). And the USCIS relied on dictionary definitions to provide greater clarity to the term specialized knowledge. Defs.' Mem., Ex. A (Puleo Memorandum) at 1-2. In the absence of a
The Court's review of the Administrative Record in this case reveals that, in reviewing the Gasparetto Petition, the Administrative Appeals Office relied on the Puleo Memorandum and the Ohata Memoranda, as well as a reasoned interpretation of the statutes, legislative history, and applicable regulations. See, e.g., AR at 4-6, 28-37. Accordingly, the Court finds that the USCIS interpretation of the term specialized knowledge, as used by the Administrative Appeals Office in the Gasparetto Petition, is reasonable, and thus is entitled to Chevron deference.
Fogo argues that the Administrative Appeals Office's position that "`there is no indication that Congress intended to liberalize the L-1B visa classification' ... is untenable as a matter of logic." Pl.'s Mem. at 30 (quoting AR at 32). Fogo points to the fact that Congress' definition of specialized knowledge in effect "`removed two elements from [the 1987] regulatory definition of'" specialized knowledge, "`and that such elements likely had the effect of restricting the class of people eligible for the classification.'" Id. at 31 (quoting AR at 32) (emphasis deleted). Fogo notes also that "it is undisputed that Congress did not impose any new requirements to offset those two deletions." Id. Fogo recasts this same argument — that Congress intended the Immigration and Nationality Act of 1990 to broaden the scope of the L1B visa — in several different ways throughout its initial memorandum of law. Id. at 30-36. Although it is true that Congress' statutory definition of specialized knowledge differed from the former regulatory definition of specialized knowledge, it does not follow that Congress intended to liberalize or broaden the scope of the L-1B visa in the manner advanced by Fogo. Rather, as discussed in detail above, the legislative history indicates only that Congress intended for there to be "more specificity" and coherence in the USCIS's interpretation of specialized knowledge. H.R. Rep. No. 101-723(I) (1990), reprinted in 1990 U.S.C.C.A.N. at 6749.
Fogo argues also that Congress' enactment of Public Law Number 111-230 indicates an intent to broaden the scope of the L-1B visa category. Pl.'s Mem. at 32. The relevant portion of Public Law Number 111-230 provides in its entirety that
Act of Aug. 13, 2010, Pub.L. No. 111-230, § 402, 124 Stat. 2485, 2487-88 (providing emergency supplemental appropriations for border security for the 2010 fiscal year). Although the legislation clearly contemplates the possibility of there being an employer with "more than 50 percent of [its] employees" working in the United States as "nonimmigrants admitted pursuant to ... section 101(a)(15)(L)," id., nowhere does it state that Congress desired to increase the number of nonimmigrant intracompany transferees. Quite the opposite, the fact that the legislation imposes a fine on employers who hire a large number of nonimmigrant intracompany transferees could indicate that Congress intended to deter the practice of hiring large numbers of such individuals.
Fogo contends also that the evidentiary tests used by the Administrative Appeals Office to evaluate the Gasparetto Petition violated the terms of the Immigration and Nationality Act of 1990. Pl.'s Mem. at 37; Pl.'s Reply at 32-35. Specifically, Fogo argues that, "[i]n requiring Fogo to make [a] showing" that "it can `stake an ownership claim' in Mr. Gasparetto's special knowledge," the Administrative Appeals Office "impos[ed] the long-since invalidated `proprietary knowledge' test in violation of the 1990 Act." Pl.'s Mem. at 37. It is true that, according to the Puleo Memorandum, "[t]he [specialized] knowledge [possessed by an L-1B visa beneficiary] need not be proprietary or unique, but it must be different or uncommon." Defs.' Mem., Ex. A (Puleo Memorandum) at 1. However, even if Fogo is correct that the Administrative Appeals Office applied a proprietary knowledge test, the Office denied the Gasparetto petition on separate grounds. In its own submissions to the Administrative Appeals Office, Fogo argued that it imparted "specialized knowledge" to potential L-1B visa beneficiaries through a special training program. See, e.g., AR at 68 ("The special knowledge required for the position is one that involves (i) first-hand, personal knowledge and upbringing in the gaucho lifestyle of Rio Grande do Sul region in Southern Brazil; and (ii) successful completion of an extensive training program by Fogo de Chao's tenured, experienced Churrasqueiro Chefs." (emphasis added)). But the Administrative Appeals Office found that Fogo had failed to submit documentation regarding Mr. Gasparetto's completion of the training program. Id. at 40. Accordingly, even if the Administrative Appeals Office erred by requiring Fogo de Chao to effectively show "proprietary knowledge," that error was harmless.
Fogo next contends that the Administrative Appeals Office "violate[d] the 1990 Act by requiring Fogo to show that [Mr. Gasparetto] ... has skills different from Fogo's other churrasqueiros." Pl.'s Mem. at 39. Specifically, Fogo argues that "[t]here is no legal basis to require this comparison — which amounts to a requirement that the beneficiary (here, Mr. Gasparetto) must have more `specialized knowledge' than Fogo's other Brazilian churrasqueiros." Id. at 40 (emphasis deleted). Fogo further cites the Puleo Memorandum's instruction that "the test for specialized knowledge involves only an examination of the knowledge possessed by the alien." Id. (citing AR at 915) (emphasis deleted). These characterizations of the Puleo Memorandum and the Administrative Appeals Office's decision are misleading. Although the Puleo Memorandum does indeed require "only an examination of the knowledge possessed by the alien," the Memorandum goes on to direct "officers adjudicating petitions involving specialized knowledge [to] ensure that the knowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry but that it is truly specialized." AR at 915. Undoubtedly, other churrasqueiro chefs employed by Fogo are members of the same industry, and so it follows that a comparison to others in Fogo's workforce was reasonable.
Fogo next argues that the Administrative Appeals Office "cannot require Fogo to show uniqueness, which was previously required under the 1970 Act." Pl.'s Mem. at 41. Fogo contends that the Office nonetheless required Fogo to show uniqueness by imposing a showing that Mr. Gasparetto's knowledge was "different or uncommon," that Fogo's "churrasqueiro chefs differ from other churrasqueiro chefs," and that Fogo itself is "distinguished by some unusual quality that sets [it] apart from others in the industry." Id. at 42 (citing AR at 44-47). These arguments do not hold water. Fogo argues in essence that, in using words somewhat similar to the word "unique," the Administrative Appeals Office required a showing of uniqueness. However, the words used by the Office are words used in the Puleo Memorandum, Defs.' Mem., Ex. A (Puleo Memorandum) at 1-2 (defining special as, among other things, "distinguished by some unusual quality; uncommon; noteworthy"), which in turn relies in part on dictionary definitions of the word "special." The fact that these words are similar to
Finally, Fogo argues that the Administrative Appeals Office should not have relied on a Fifth Circuit Court of Appeals decision, Boi Na Braza Atlanta, LLC v. Upchurch, 194 Fed.Appx. 248 (5th Cir. 2006), which affirmed the "denial of L-1B petitions brought on behalf of certain Brazilian chefs trained to cook in the gaucho manner." Pl.'s Mem. at 42 (citing Boi Na Braza; AR at 53-54). Any similarities between the case before this Court and Boi Na Braza aside, the Court notes first that, after extensive discussion and before ever addressing the merits of Boi Na Braza, the Administrative Appeals Office stated that "[b]ased on the evidence presented, it is concluded that the beneficiary does not possess specialized knowledge, nor would the beneficiary be employed in a capacity requiring specialized knowledge. For this reason the [Administrative Appeals Office] will affirm the director's decision to deny the petition." AR at 51. In any event, the Administrative Appeals Office did not err insofar as it relied on Boi Na Braza. In that case, the district court found that the agency's "decisions [denying L1B visa petitions for churrasqueiro chefs] were not arbitrary, capricious or an abuse of discretion," but rather "detailed the requirements of 8 C.F.R. § 214.2(l)(1)(ii)(D), as well as the agency's interpretive memoranda, applied the record evidence to the regulations, considered the applicable legislative history and reached a logical result after an adequate treatment of the issues presented." Boi Na Braza Atlanta, LLC v. Upchurch, No. 3:04-CV-2007-L, 2005 WL 2372846, at *10 (N.D.Tex. Sept. 27, 2005), aff'd, 194 Fed. Appx. 248. While Fogo is correct that "[n]either the District Court nor the Fifth Circuit in Boi Na Braza found that churrasqueiros in general lack `specialized knowledge,'" Pl.'s Mem. at 42, both courts did find that the agency had not acted in an arbitrary or capricious manner when it denied the L-1B visa petitions because of the agency's careful consideration of the evidence and applicable law in that case, Boi Na Braza, 2005 WL 2372846, at *10; Boi Na Braza, 194 Fed.Appx. at 249 ("In particular, the agency could rationally have concluded that plaintiff did not provide the [US]CIS with sufficient information about the beneficiaries' skills and abilities, nor did it demonstrate that the beneficiaries' knowledge of Brazilian cooking was sufficiently specialized to merit L-1B status."). Here, the Administrative Appeals Office made reference to the evidentiary "deficiencies that led the Fifth Circuit Court of Appeals" to affirm the district court in Boi Na Braza, and then noted that the evidence presented in the Gasparetto Petition similarly failed to "document [Mr. Gasparetto's] training or clarify the discrepancy with respect to his job title or role with the foreign entity." AR at 54. The Office did not, as Fogo suggests, use the Boi Na Braza decision to reach the conclusion that no churrasqueiro chefs could ever be granted L-1B visa.
In short, the Court finds that the Administrative Appeals Office's interpretation of the term "specialized knowledge,"
The APA requires courts to "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "The `arbitrary and capricious' standard of review as set forth in the APA is highly deferential," and the Court must therefore "presume the validity of agency action." Am. Horse Prot. Ass'n v. Yeutter, 917 F.2d 594, 596 (D.C.Cir.1990).
Fogo argues first that the defendants violated the APA because the Administrative Appeals Office's decision "violates the 1990 Act and the 1991 Regulations" and is therefore "not in accordance with law." Pl.'s Mem. at 43. However, as extensively discussed above, the Administrative Appeals Office's interpretation of the Immigration and Nationality Act of 1990 and its underlying regulations are reasonable and entitled to deference. The Court, therefore, finds that the defendants' interpretations did not violate the APA.
Fogo argues next that the "USCIS violated the APA by adversely prejudging, on the record, all Fogo `specialized knowledge' petitions." Pl.'s Mem. at 43. In particular, Fogo notes that the defendants stated in a brief filed with this Court that "[i]n view of [the] USCIS's determination that these individuals do not qualify for L1B `specialized knowledge' visas and therefore that such visa petitions will not be approved in the future, the parties are at an impasse." Id. (quoting ECF No. 18 at 7) (emphasis deleted). Fogo relies on Cinderella Career & Finishing Sch., Inc. v. FTC, 425 F.2d 583 (D.C.Cir.1970), in which the Circuit vacated an FTC order and required the recusal of then FTC Chairman Paul Rand Dixon, id. at 592. In that case, the Circuit chastised Chairman Dixon for ignoring court mandates and repeatedly making public speeches indicating that he had prejudged specific actions pending before the FTC. Id. at 590-92. Here, on the other hand, Fogo has identified a single statement in a single brief. Pl.'s Mem. at 43. Further, the statement was made in the midst of the defendants' assertions that they did not want to enter into a settlement with Fogo that "would bind the [a]gency's future exercise of discretion, and would guarantee an outcome with respect to [the] [p]laintiff's visa petitions."
Fogo argues next that the "USCIS violated the APA because its failure to explain its departure from the precedent of Fogo's 251 prior approvals was arbitrary and capricious." Pl.'s Mem. at 44. However, the defendants are correct that the regulations require the USCIS to make "[a] determination of statutory eligibility... only on information contained in the record of proceeding which is disclosed to the applicant or petitioner." 8 C.F.R. § 103.2(b)(16)(ii). Thus, regardless of the previous approvals, the USCIS would be justified in denying a petition if the information upon which it relied did not provide sufficient evidentiary support to warrant granting an L-1B visa petition. And indeed, as the Administrative Appeals Office stated and as discussed above, the Gasparetto Petition failed to "document [Mr. Gasparetto's] training or clarify the discrepancy with respect to his job title or role with the foreign entity." AR at 54. In other words, the evidence before the Administrative Appeals Office concerning the Gasparetto Petition was insufficient for the Office to find that Mr. Gasparetto was eligible for an L-1B visa. The prior approvals are therefore of no moment.
Fogo contends that the USCIS "violated the APA by failing to conduct notice and comment rulemaking before it effectively revised its definitive interpretation of the specialized knowledge term in 2007.... [as] embodied in the Puleo Memo[random]." Pl.'s Mem. at 47. It is true that, "[w]hen an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish without notice and comment." Alaska Prof'l Hunters Ass'n v. FAA, 177 F.3d 1030, 1034 (D.C.Cir.1999). And so, as Fogo points out, Pl.'s Mem. at 47, a problem would exist if the USCIS had "depart[ed] from established precedent without a reasoned explanation," ANR Pipeline Co. v. FERC, 71 F.3d 897, 901 (D.C.Cir.1995); see also Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 156 (D.C.Cir.2005) ("A statutory interpretation... that results from an unexplained departure from prior [agency] policy and practice is not a reasonable one."). Here, however, the Administrative Appeals Office did not depart from an earlier agency interpretation, but instead relied heavily on both a reasoned interpretation of the relevant statute and regulations as well as the Puleo Memorandum throughout its decision. See generally AR at 1-54. And in doing so, as discussed above, the essential problem with the Gasparetto Petition was one of insufficient evidence.
Fogo also argues that the USCIS decision concerning the Gasparetto Petition was arbitrary and capricious because it failed to consider evidence that Mr. Gasparetto completed the training program. Pl.'s Mem. at 50. Specifically, Fogo notes that the Gasparetto Petition included an affidavit signed by Fogo's CEO that indicated that Mr. Gasparetto had completed the training program. Id. (citing AR at 849). To be sure, agencies are required to consider relevant evidence during their decision making processes. See, e.g., Tenneco Gas v. FERC, 969 F.2d 1187, 1214 (D.C.Cir.1992). However, it is equally true that the requirement that an agency consider and rely on the evidence in the record is not "intended to negative the function of the [agency] as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Here, the Administrative Appeals Office, in exercising its discretion, found that the evidence presented by Fogo was insufficient. AR at 54. And as the defendants note, while the Office "does not disregard evidence because it is `self-serving,' it requires the introduction of corroborative testimonial and documentary evidence, where available." Defs.' Reply at 23 (emphasis in original) (citing Matter of S-A-, 22 I. & N. Dec. 1328, 1332 (June 27, 2000); AR at 47 n. 8). Thus, although Fogo is correct that there was no evidence contradicting the CEO's affidavit, it cannot be said that the agency's decision was arbitrary and capricious where Fogo failed to provide any other corroborative evidence.
Finally, Fogo argues that "the [Administrative Appeals Office's] findings — regarding competitors' use of gaucho culture and tradition, the incidence of Fogo's cooking method and style of service across the industry, and the culinary skills required for an authentic churrascaria — are impermissible because these are facts that `concern' Fogo's petition with no basis in the record." Pl.'s Mem. at 52. While an agency must make findings based on the "testimony and exhibits, together with all papers and requests filed in the proceeding," the APA provides that a party is entitled the opportunity to rebut a fact that does "not appear[] in the evidence in the record" only where that fact is "material." 5 U.S.C. § 556(e) (emphasis added). And, as noted several times above, the Administrative Appeals Office determined that the Gasparetto Petition lacked sufficient evidence that Mr. Gasparetto possessed specialized knowledge because it was unclear from the record that he had completed the required training program, and because Fogo failed to clarify the nature of Mr. Gasparetto's foreign position. AR at 41, 54. Accordingly, even if the USCIS considered evidence outside of the record, such considerations were not material to the ultimate finding that Mr. Gasparetto did not possess specialized knowledge and thus is ineligible for an L-1B visa.
For the reasons stated above, the Court finds that the denial of the Gasparetto Petition was neither arbitrary nor capricious. Accordingly, the Court grants the defendants' motion for summary judgment
Further, and perhaps more important, it is axiomatic that courts have a "duty `to give effect, if possible, to every clause and word of a statute.'" Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955)). Were the Court to adopt Fogo's logic, then other provisions of the Immigration and Nationality Act of 1990 would be rendered mere surplussage. As noted in the Administrative Appeals Office's decision, "the Act provides separate nonimmigrant visa classifications for aliens with culturally unique skills and those who are coming to the United States for the purpose of employment involving the sharing of the history, culture and traditions of their countries of nationality." AR at 39 n. 6 (citing 8 U.S.C. §§ 101(a)(15)(P)(iii), 101(a)(15)(Q)). If L1-B visas could be granted on the basis of specialized knowledge of a culture as Fogo's arguments indicate, Pl.'s Mem. at 37-39, there would be no need for specific visa categories addressing employment based on cultural knowledge.
