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Practice Note
Federal Court in Washington D.C. Ruled in Favor of Fogo de Chao to Bring Chef to the US from Brazil

Federal Court in Washington D.C. Ruled in Favor of Fogo de Chao to Bring Chef to the US from Brazil

On Oct. 21, 2014 the US Court of Appeals for the District of Washington D.C. ruled in favor of Fogo de Chao to bring chefs from Brazil to the US under the L-1B visa. The following is the report on Washington Post about the case.

By Jerry Markon and Tim Carman October 21

The gaucho chef, or churrasqueiro, is a tradition at Brazilian steakhouses, and especially at Fogo de Chao, the restaurant known for serving endless slabs of heavily seasoned meats to its well-heeled customers in the District and other cities.

For years, the Dallas-based chain brought the highly trained chefs from Brazil to work at its restaurants in the United States through a special visa program. Then, it ran into an obstacle bigger than a bad tip: the Department of Homeland Security.

A DHS office in 2010 denied a visa to Rones Gasparetto, a Fogo de Chaochurrasqueiro who had worked as a chef in Brazil, and the chain sued. On Tuesday, the U.S. Court of Appeals for the D.C. Circuit decided in favor of Fogo, ruling that DHS has improperly denied the visa.

“We are confident that the Department will handle this matter with appropriate dispatch,’’ Judge Patricia A. Millett wrote for a three-judge panel.

Fogo de Chao, considered America’s marquee Brazilian steakhouse chain and the established champ among the small handful of competitors, started in Brazil in 1979. It is now owned by Thomas H. Lee Partners, a private equity firm, and operates 19 restaurants in the United States.

The D.C. location of Fogo de Chao opened in late 2005 on Pennsylvania Avenue NW, and the all-you-can-eat steakhouse has become a frequent destination for those with a large appetite and a large wallet. (Dinner runs $53.50; lunch costs $35.50). Washington Nationals catchers Wilson Ramos and Jose Lobaton were spotted there in late September, for example, after Jordan Zimmermann threw his no-hitter to close the regular season for the Nats.

Like all Fogo de Chao locations, the D.C. location is staffed with gauchos, dressed in traditional pilcha garb, a sort of Brazilian cowboy outfit: kerchief around the neck, poofy horseback riding pants, leather belt and cotton shirt. Trained in the Brazilian method of preparing and cooking the restaurant’s 16 cuts of meat, they perform a ritual slicing ceremony at the table, hoisting large skewers of meat and carving off slices based on the temperature requested by the diner.

Fogo de Chao and DHS did not immediately respond to requests for comment on the court’s decision, which was filled with dense legal arguments about whether Gasparetto’s cooking experience gave him “specialized knowledge.’’ Such knowledge is required for companies to temporarily transfer foreign employees into the United States on an L-1B visa. (More than 200 of Fogo’s gaucho chefs have been granted such visas since 1997.)

The appeals court, reversing a lower court decision, ruled that DHS had erred in denying his visa request because, among other reasons, he had completed the company’s intensive training program for its gaucho chefs.

This being Washington, however, there were also signs of a political conflict brewing beneath the legal jargon. The judges in the majority, Millett and Robert L. Wilkins, are Obama administration appointees who were the subject of a fierce partisan battle in the Senate before being confirmed in the past year.

Their accession, along with a third Democratic appointee, gave Democrats a solid majority on the bench, considered the nation’s second most important appellate court behind the Supreme Court.

Dissenting from Tuesday’s opinion was Judge Brett M. Kavanaugh, a George W. Bush appointee whose confirmation in 2006 was the subject of equally fierce opposition from Democrats because of his deep involvement in Kenneth W. Starr’s investigations of President Bill Clinton over Whitewater and Monica S. Lewinsky.

In his dissent, Kavanaugh stood up for American chefs, rejecting Fogo de Chao’s argument that it could only train Brazilian chefs to properly prepare its meat.

“Ultimately, Fogo de Chao’s argument is that American chefs either can’t learn to cook or won’t cook Brazilian steaks,’’ he wrote. “ … 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.’’

The majority noted its “puzzlement” over Kavanaugh’s position. “Fogo de Chao’s position here is simply that it needs Gasparetto to help train those American chefs in churrascaria techniques and knowledge,’’ the majority said, “and to perform the service- and team-related skills that Fogo de Chao says have proven particularly difficult to transfer.’’

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