A Court Had to Decide Whether Growing Up Somewhere Counts as Training
In 2014 the federal government argued that knowledge acquired through upbringing could not, as a matter of law, be specialized. Two judges disagreed with each other about it, and the disagreement is the most precise argument about tacit craft knowledge anyone has been forced to make.
This institution keeps arriving at the same wall. A provenance record can say where an object has been, who held it, what it sold for. It cannot say what the person who made it knew, because knowing is not an event that happens to an object.
Almost nowhere is anyone obliged to resolve that. A museum can hold a Benin bronze without ruling on whether the casting knowledge survives. An auction catalogue can price a coachbuilt body without deciding what the panel beater understood. The question stays open because nothing forces it shut.
Immigration law forces it shut. A visa is granted or it is not.
The case
Fogo de Chao operates churrascarias, Brazilian steakhouses, in Brazil and the United States. Its restaurants are staffed by churrasqueiros, gaucho chefs raised in the barbecue traditions of Rio Grande do Sul in southern Brazil.
Between 1997 and 2006 the Department of Homeland Security granted the company more than two hundred L-1B visas for these chefs. The L-1B is the intracompany transferee category for workers with specialized knowledge, defined at 8 C.F.R. § 214.2(l)(1)(ii)(D) as special knowledge of the organization's product, service, techniques or management and its application in international markets, or an advanced level of knowledge of the organization's processes and procedures.
In 2010 the company applied to transfer another chef, Rones Gasparetto, on the same reasoning it had used two hundred times: that his upbringing and his experience cooking in the churrasco style constituted specialized knowledge.
The agency refused, and the ground it chose is the reason this case matters. The Administrative Appeals Office held that cultural background, knowledge and training could not, as a matter of law, constitute specialized knowledge.
Not that this chef's knowledge was insufficient. That knowledge of that kind was categorically ineligible.
What the D.C. Circuit said
On 21 October 2014 the D.C. Circuit reversed. The panel was Judges Kavanaugh, Millett and Wilkins, with Judge Millett writing.
The court declined to accept the categorical bar:
Nothing in the statute itself textually excludes all culturally acquired knowledge as a form of "specialized knowledge." Knowledge and skills associated with a particular culture may be "limited to a relatively small population or geographic location," such that they are "uncommon" or "distinguished by some unusual quality."
And it made the observation this study is really about:
cultural acquisition is simply an immersion form of skills-training and front-line experience
That sentence is doing a great deal of work. It refuses the distinction between knowledge that arrives through a company programme and knowledge that arrives through a childhood. Both are immersion. Both take time. One has an invoice and the other does not, and the court declined to treat the invoice as the thing that makes it real.
The agency's blanket rule was found insufficiently reasoned and lacking, in the court's phrase, the power to persuade.
The dissent, which is not a bad argument
Judge Kavanaugh dissented, and it would be a poor study that treated his position as obviously wrong. It is the strongest available objection and it deserves stating in his terms.
He argued that a person's country of origin or cultural background does not constitute specialized knowledge for the purpose of working in an ethnic restaurant, and that the company's position amounted to seeking authenticity by national identity. That, he wrote, would gut the specialized knowledge requirement and open a substantial loophole in the immigration laws.
On the craft itself he was blunt. American chefs, he wrote, surely have the capacity to learn how to cook Brazilian steaks and perform the related tasks, and the suggestion otherwise is an entirely untenable proposition.
Read that as a claim about craft rather than about immigration and it is a serious one. It says that any technique can be taught, that nothing in a trade is genuinely restricted to those who grew up inside it, and that treating origin as expertise is a way of dressing up preference as skill.
Anyone who has watched a heritage claim inflate a price should feel the force of it.
The majority's answer, and the statutory fact underneath
The majority replied that the dissent had confused what was under review. It did not hold that national identity is itself specialized knowledge. It held that the agency could not categorically exclude knowledge because of how it was acquired, without explaining why the manner of acquisition should matter.
And there is a statutory fact underneath the whole dispute that decides more than either opinion's rhetoric.
In 1990 Congress removed the requirement that the knowledge be not readily available in the United States. The court says so directly: that standard and the proprietary requirement were struck, making the definition less restrictive in those two respects while leaving a still high and exacting bar overall.
So the question the dissent presses, whether an American could learn to do this, is no longer the statutory test. Congress deleted it. Whether the knowledge is obtainable elsewhere in the labour market stopped being the measure of whether it is specialized.
That is a small technical point with a large consequence. The law was amended away from asking whether someone else could do it, and toward asking what this knowledge actually is.
What the case is really measuring
The court, needing something workable, reaches for the only proxy available: cost and time.
The length and complexity of training, and skills gained from significant experience, are treated as indicia of specialization. The agency is directed to consider the amount of in-house training a company's employees would need, and whether the knowledge could transfer within a reasonable period.
Notice what has happened. Tacit knowledge, the kind that lives in a body and cannot be written down, has been given a number. Not a good number, and the court does not pretend otherwise. But a number: how long, how much, how hard to replace.
This institution has been circling that measurement for a long time without a case forcing it. The Benin casters' apprenticeship ran five to seven years, five learning and two in unpaid service. A Pellat-Finet sweater's material decisions are visible in the hand twenty years on and invisible in a photograph. A Fluxus score performed forty times is physically identical to one never performed at all.
In each of those, the knowledge is real and the record has no field for it. Here a court was obliged to open a field, because a man's employment depended on the answer.
Why this belongs in a register about objects
Objects of Affection Collection holds that the objects are the evidence, and that an object is studied for what humans do with it, believe about it, and know how to do to it.
The last of those is the one nothing records.
A provenance record is a chain of custody. It tracks the object through hands. It has no capacity to describe what those hands could do, and no mechanism for noticing when that capacity ends. The Custodian's Contract binds obligations to an object and says nothing about competence, because competence is not transferable by instrument.
So the market has no instrument for the thing that produces everything it trades in. It can price a scarf, a bronze, a sweater, a plate of meat cooked over a fire in a particular way. It cannot price, record, or protect the knowing that made any of them, and it has never had to try.
Immigration law had to try. It produced a definition, a set of factors, a dispute between two judges and a remand. It is a crude apparatus and it is more than the art market has ever built.
What this study does not do
This is not legal advice and it is not a guide to visa practice. It is a reading of a decided case for what the case reveals about knowledge, and anyone with an actual L-1B question needs a lawyer rather than a critical study.
It also does not resolve the dispute, and it should not.
Both judges are right about something. Immersion is a form of training, and refusing to count it because nobody issued a certificate is arbitrary. And authenticity-by-origin is a real loophole, in immigration and far more so in the market this institution studies, where provenance of birth is sold as quality with great regularity and very little challenge.
The case does not choose between those, and neither will this. What it does is put on the record, in a federal court, the proposition that time spent living somewhere can be a form of training, and that the absence of an invoice is not proof that no training occurred.
Every craft this institution has examined depends on that being true. It is a strange place to find it argued.