CALDERWOOD & HARKNESS LLP 555 California Street, 32nd Floor San Francisco, CA 94104
CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED
CLIENT ADVISORY MEMORANDUM
June 14, 2023
TO: Marcus Whitfield, General Counsel, Lumos Analytics Inc. Janelle Kwon, HR Manager (Immigration Contact), Lumos Analytics Inc.
FROM: Derek Okonkwo, Associate, Calderwood & Harkness LLP Tiffany Rosenthal, Associate, Calderwood & Harkness LLP
RE: PERM Labor Certification and EB-2 Immigrant Visa Petition Process — Advisory Overview for Four Beneficiary Cases
MATTER NO.: 1008-00004
CC: Colette Whitman, Partner, Calderwood & Harkness LLP Sonia Elliston, VP, People Operations, Lumos Analytics Inc.
I. Introduction and Purpose of This Memorandum
This memorandum provides Lumos Analytics Inc. ("Lumos" or the "Company") with a comprehensive overview of the multi-step process for obtaining lawful permanent resident status (commonly referred to as "green cards") for four foreign-national executives through the PERM labor certification and EB-2 immigrant visa petition process. The purpose of this advisory is to ensure that the Company's leadership and key internal stakeholders are fully informed regarding the legal framework, procedural steps, employer obligations, anticipated timelines, documentation requirements, and cost structure associated with sponsoring each of these individuals for employment-based permanent residence.
This engagement was opened on June 12, 2023, pursuant to the fully executed Engagement Letter between Calderwood & Harkness LLP ("C&H" or the "Firm") and Lumos Analytics Inc., dated the same day. The scope of this engagement covers the PERM labor certification process (Phase 1) and the filing and adjudication of the I-140 Immigrant Petition for Alien Workers (Phase 2) for each of the four beneficiaries identified below. Post-I-140 steps, including adjustment of status and consular processing, are outside the scope of the current engagement and will be addressed in future advisory memoranda and engagement supplements as appropriate.
The four beneficiaries who are the subject of this engagement are as follows:
• Rajan Mehta — Vice President, Engineering — Core Platform. Mr. Mehta is an Indian national currently maintaining H-1B nonimmigrant status, which is valid through September 14, 2025.
• Lina Varga — Senior Director, Data Science & Machine Learning. Ms. Varga is a Hungarian national currently maintaining H-1B nonimmigrant status, which is valid through March 2, 2026.
• Tomás Aguilar-Reyes — Vice President, Product — Fintech Solutions. Mr. Aguilar-Reyes is a Mexican national currently maintaining L-1A intracompany transferee status, which is valid through July 30, 2024.
• Yumiko Tanaka — Director, Information Security & Compliance. Ms. Tanaka is a Japanese national currently maintaining H-1B nonimmigrant status, which is valid through November 18, 2025.
This memorandum is intended to serve as a practical reference guide for Lumos's internal team throughout the PERM and I-140 process. It identifies key milestones, explains the regulatory requirements the Company must satisfy as the sponsoring and petitioning employer, sets forth a projected master timeline estimating approximately ten to twelve months from the date of engagement to I-140 approval, and details the specific documentation and information that C&H will require from Lumos at each stage. It is important to emphasize at the outset that throughout this process, the employer — Lumos Analytics Inc. — is the petitioner. The beneficiary is the sponsored employee. While the beneficiary has a significant interest in the outcome, the legal obligations and attestations under the PERM process fall squarely on the employer.
We encourage Lumos's General Counsel and HR Manager to review this memorandum carefully and to contact us with any questions before we proceed with the initial filings described herein.
II. Overview of the Immigration Framework
A. Employment-Based Second Preference (EB-2) Classification
The employment-based second preference ("EB-2") immigrant visa category, codified at Section 203(b)(2) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1153(b)(2), is designated for individuals who qualify as "Advanced Degree Professionals" or who can demonstrate "exceptional ability" in the sciences, arts, or business. For purposes of this engagement, all four beneficiaries will be petitioned under the Advanced Degree Professional subcategory of the EB-2 classification.
An individual qualifies as an Advanced Degree Professional if he or she holds a United States advanced degree — meaning a Master's degree or higher from an accredited U.S. institution of higher education, or a foreign equivalent thereof — or, alternatively, holds a baccalaureate degree plus five years of progressive post-baccalaureate experience in the specialty, which the regulations deem the equivalent of a Master's degree. See 8 CFR § 204.5(k)(2).
Based on our preliminary review of each beneficiary's educational credentials, all four individuals satisfy the EB-2 advanced degree threshold:
• Rajan Mehta holds a Master of Science in Computer Science from the Indian Institute of Technology Bombay, conferred in 2014. IIT Bombay is a premier institution recognized globally, and Mr. Mehta's degree is the foreign equivalent of a U.S. Master's degree in Computer Science.
• Lina Varga holds a Doctor of Philosophy (Ph.D.) in Statistics from ETH Glenrock Assurance (the Swiss Federal Institute of Technology in Glenrock Assurance), conferred in 2016. A doctoral degree plainly exceeds the Master's degree threshold, and ETH Glenrock Assurance is among the most highly regarded research universities in the world.
• Tomás Aguilar-Reyes holds a Master of Business Administration from IPADE Business School in Mexico City, conferred in 2013. In addition, Mr. Aguilar-Reyes possesses more than five years of progressive post-MBA experience in product management and fintech operations. His MBA degree constitutes the foreign equivalent of a U.S. Master's degree.
• Yumiko Tanaka holds a Master of Science in Cybersecurity from Carnegie Mellon University, conferred in 2017. Carnegie Mellon is a U.S. institution, and Ms. Tanaka's degree is a domestic advanced degree that directly satisfies the EB-2 requirement without the need for a foreign credential evaluation.
C&H will obtain or confirm appropriate credential evaluations for the three beneficiaries whose degrees were conferred by foreign institutions (Mr. Mehta, Ms. Varga, and Mr. Aguilar-Reyes) to ensure that USCIS accepts the educational equivalency at the I-140 stage. Ms. Tanaka's Carnegie Mellon degree does not require a foreign credential evaluation.
B. Two-Phase Process
Obtaining permanent residence through employer sponsorship under the EB-2 classification is a two-phase process, described in summary below and elaborated upon in the succeeding sections of this memorandum.
Phase 1 — PERM Labor Certification. The first phase requires Lumos, as the sponsoring employer, to test the U.S. labor market to demonstrate that there are no qualified, willing, and available U.S. workers for the offered position. This phase is governed by the regulations of the U.S. Department of Labor ("DOL"), specifically 20 CFR Part 656, and is administered by the DOL's Office of Foreign Labor Certification ("OFLC"). The PERM process involves several sequential steps: obtaining a prevailing wage determination from the DOL's National Prevailing Wage Center; conducting a supervised recruitment campaign in accordance with detailed regulatory requirements; observing a mandatory thirty-day "quiet period" following the conclusion of recruitment; preparing a comprehensive recruitment report documenting the results of the labor market test; and filing ETA Form 9089, the Application for Permanent Employment Certification, with the DOL's Atlanta National Processing Center. Upon the DOL's certification of the ETA Form 9089, Phase 1 is complete.
Phase 2 — I-140 Immigrant Petition. After PERM labor certification is obtained, Lumos will file Form I-140, Immigrant Petition for Alien Workers, with U.S. Citizenship and Immigration Services ("USCIS"), specifically the Texas Service Center located at 6046 N Belt Line Road, Irving, TX 75038. The I-140 petition demonstrates that the beneficiary possesses the qualifications set forth in the certified PERM application and that the employer has the financial ability to pay the offered wage. Upon approval of the I-140 petition, the beneficiary's priority date is established, and the beneficiary may then pursue the final step of the green card process.
Following I-140 approval, the beneficiary may pursue adjustment of status to lawful permanent residence by filing Form I-485 (if the beneficiary is physically present in the United States and an immigrant visa number is immediately available under the monthly Visa Bulletin) or, alternatively, may apply for an immigrant visa through consular processing at a U.S. embassy or consulate abroad. As noted above, these post-I-140 steps are outside the scope of the current engagement but will be addressed in future advisory communications and supplemental engagement letters.
III. Phase 1: PERM Labor Certification Process — Detailed Steps
The PERM labor certification process consists of six principal steps, each of which is described in detail below. It is essential that Lumos understand and participate actively in each step, as the employer bears the primary legal obligations throughout this phase.
A. Step 1: Prevailing Wage Determination (PWD)
Before Lumos may commence any recruitment activities for the PERM process, the Company must first obtain a prevailing wage determination ("PWD") from the DOL's National Prevailing Wage Center ("NPWC") in Washington, D.C., for each of the four positions at issue. The prevailing wage represents the average wage paid to similarly employed workers in the occupation in the geographic area of intended employment, and it serves as the floor for the wage that the employer must offer to the beneficiary.
C&H will prepare and file prevailing wage determination requests on Form ETA-9141 (Application for Prevailing Wage Determination) for each of the four positions. Each request will specify the following information:
• The Standard Occupational Classification ("SOC") code applicable to each role, drawn from the Bureau of Labor Statistics' Standard Occupational Classification system;
• A detailed description of the job duties for each position;
• The minimum education, training, and experience requirements for each position; and
• The geographic area of intended employment (i.e., the worksite location), which for all four positions is the San Jose-Sunnyvale-Santa Clara, CA Metropolitan Statistical Area ("MSA"), Occupational Employment and Wage Statistics ("OES") Area Code 41940, corresponding to Lumos's headquarters at 2240 Embarcadero Way, Suite 600, Palo Alto, CA 94303.
The SOC codes that C&H intends to use for each position are as follows:
We note that the SOC code 11-2021 (Marketing Managers) is the closest available DOL match for fintech product management, given that the SOC system does not include a distinct code for product management roles. C&H will draft Mr. Aguilar-Reyes's PWD request carefully to describe the duties in a manner consistent with this classification while accurately reflecting the position's actual responsibilities.
The NPWC assigns a wage level (Level I through Level IV) to each prevailing wage determination based on the complexity of the job duties, the degree of independent judgment and supervisory responsibility required, and the level of experience necessary for the position. Level I corresponds to entry-level positions, while Level IV corresponds to positions requiring the highest level of complexity and expertise. Given the senior nature of all four positions — each involving significant supervisory responsibility, strategic decision-making, and advanced technical or managerial expertise — C&H anticipates that the NPWC will assign prevailing wages at Level III or Level IV for these roles.
Regardless of the prevailing wage level assigned, Lumos must offer each beneficiary a salary that is at least equal to the prevailing wage determination. Based on the current offered salaries for each beneficiary, C&H anticipates that all four offered wages will significantly exceed the anticipated prevailing wages:
These salary figures are well above the prevailing wage ranges typically observed for these occupational classifications in the San Jose-Sunnyvale-Santa Clara MSA, even at Level IV. Accordingly, we do not anticipate any prevailing wage compliance issues.
The expected NPWC processing time for prevailing wage determinations is approximately eight to twelve weeks from the date of filing. Processing times can fluctuate based on NPWC workload, and C&H will monitor each request through the DOL's iCERT system.
Target filing date for all four PWD requests: June 26, 2023. To meet this target, C&H will need to receive finalized job descriptions and salary confirmations from Lumos by June 21, 2023 (see Section VIII below for a full list of immediate action items).
Upon receipt of the prevailing wage determinations, C&H will confirm that each offered salary exceeds the determined prevailing wage and will then proceed to the supervised recruitment phase described below.
B. Step 2: Supervised Recruitment Campaign
After prevailing wages are determined, Lumos must conduct a good-faith test of the U.S. labor market under the supervised recruitment framework established by the DOL's PERM regulations at 20 CFR § 656.17. The purpose of recruitment is to demonstrate that the employer has made diligent, good-faith efforts to recruit U.S. workers for the offered position and that no qualified, willing, and available U.S. worker has been identified to fill the role.
Because all four positions qualify as "professional occupations" — defined under 20 CFR § 656.17(e) as occupations for which the attainment of a bachelor's degree is a customary requirement — Lumos must complete a minimum of ten recruitment steps for each position. These ten steps consist of seven mandatory recruitment steps and at least three additional steps selected from a regulatory menu of alternative recruitment methods.
Mandatory Recruitment Steps (20 CFR § 656.17(e))
The following seven recruitment steps are mandatory for all professional-occupation PERM cases:
1. Job Order with State Workforce Agency (SWA). Lumos must place a job order with the State Workforce Agency for the state in which the position is located. For California, the SWA is the California Employment Development Department ("EDD"), and the job order must be posted through the CalJOBS online portal (www.caljobs.ca.gov). The job order must remain active for a minimum of 30 consecutive business days. C&H will coordinate with the EDD to ensure that the job order is properly posted and includes all required information, including the job title, duties, minimum requirements, offered wage, and worksite location.
2. Two Sunday Print Advertisements. Lumos must place two separate advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. Each advertisement must include the employer's name, a description of the job opportunity, the geographic area of employment, and instructions for how applicants may apply. C&H has identified The Peninsula Gazette (780 Hamilton Avenue, Palo Alto, CA 94301) as the newspaper of general circulation serving the Palo Alto area that is appropriate for this purpose. Our recruitment advertising vendor, Broadgate Compliance Services LLC (discussed further below), will coordinate advertisement placement with the Gazette's advertising department; the ad representative at The Peninsula Gazette is Noreen Caswell.
3. Internal Posting / Notice of Filing. The job opportunity must be posted internally at the Lumos worksite (2240 Embarcadero Way, Suite 600, Palo Alto, CA 94303) for a minimum of 10 consecutive business days in a conspicuous location readily accessible to all employees, such as a break room, common area bulletin board, or employee intranet page. C&H will provide a template Notice of Filing that includes the job title, a summary of job duties, the minimum education and experience requirements, the offered salary, and instructions for any Lumos employee or other U.S. worker wishing to apply for the position. The internal notice must also identify the office where applications should be sent or the individual designated to receive them.
4. Employer Website Posting. The job opportunity must be posted on the Lumos Analytics Inc. corporate careers website (or equivalent publicly accessible employment page) for a period concurrent with the recruitment campaign.
5. Job Search Website Posting. The job opportunity must be posted on at least one job search website other than the employer's own website. C&H recommends posting on a major national job board such as Indeed, Westmark Health IT, or Penmark Technologies.
6. Filing of the Job Order with the SWA. As noted above, this step overlaps with Step 1 and ensures the SWA posting is filed in compliance with regulatory requirements.
7. Posting at a Location Physically Accessible to Employees. This step overlaps with Step 3 (the internal posting requirement) and ensures that the notice is placed in a location where it will be seen by existing Lumos employees.
Three Additional Recruitment Steps (20 CFR § 656.17(e)(1)(ii))
In addition to the seven mandatory steps, Lumos must conduct at least three additional recruitment steps selected from the regulatory menu set forth at 20 CFR § 656.17(e)(1)(ii). After careful consideration of the nature of the four positions and the available options, C&H recommends the following three additional recruitment methods:
(a) Professional or Trade Journal Advertisement. C&H recommends placing an online advertisement in FinTech Talent Weekly, a professional industry publication focused on the financial technology, data science, and enterprise software sectors. FinTech Talent Weekly is published by Creston Media Group, Inc., located at 41 East 11th Street, 5th Floor, New York, NY 10003. This publication is well-suited for all four positions, given Lumos's core business in analytics and financial technology.
(b) Campus Placement Posting. C&H recommends utilizing a campus placement or career services program at Baxter University Career Center as an additional recruitment method. Campus placement postings can reach qualified U.S. workers, including recent graduates and alumni with advanced degrees, and satisfy the regulatory requirement for an additional recruitment step.
(c) Employee Referral Program Posting. C&H recommends posting the job opportunities through Lumos's existing internal employee referral program. This method leverages the Company's workforce to identify potential qualified U.S. applicants and is recognized by the DOL as a permissible additional recruitment step.
Coordination with Broadgate Compliance Services LLC
Lumos's designated recruitment advertising vendor, Broadgate Compliance Services LLC ("Broadgate"), will handle the placement of mandatory advertisements (newspaper ads, SWA job orders, and online journal postings) and will prepare standardized recruitment report templates for each campaign. Broadgate is located at 1414 K Street NW, Suite 730, Washington, DC 20005, and the firm's principal contact is Gerald Fitzmorris. Broadgate specializes in PERM recruitment compliance and has substantial experience in managing the advertising and documentation requirements of the labor certification process.
C&H will supervise and coordinate all activities with Broadgate to ensure that every recruitment step complies with the requirements of 20 CFR Part 656 and that all documentation is properly preserved for the employer's audit file. Broadgate will provide C&H and Lumos with copies of all advertisements, tearsheets (for print ads), posting confirmations, and invoices for advertising costs incurred.
Recruitment Timeline. To manage the workload efficiently and ensure that C&H can provide adequate oversight of each recruitment campaign, the campaigns for the four positions will be staggered into two groups based on anticipated PWD receipt dates:
• Group 1 (Rajan Mehta & Lina Varga): Recruitment campaigns for these two positions will commence promptly after all prevailing wage determinations are received, estimated to be in approximately October 2023.
• Group 2 (Tomás Aguilar-Reyes & Yumiko Tanaka): Recruitment campaigns for these two positions will commence approximately two weeks after the Group 1 campaigns begin.
Each individual campaign window will span approximately 30 to 45 days, which is inclusive of the 30-business-day SWA job order posting period, the 10-business-day internal posting period, and the placement and publication of Sunday print advertisements and other recruitment materials. All recruitment activities for each position must be completed within 180 days prior to the filing of the PERM application.
C. Step 3: 30-Day Quiet Period
Following the conclusion of all recruitment activities for a given position, a mandatory 30-day "quiet period" (also commonly referred to as the "cooling-off period") must elapse before the ETA Form 9089 PERM application may be filed with the DOL. This requirement is set forth at 20 CFR § 656.17(e).
During this 30-day quiet period, Lumos must continue to accept and evaluate any U.S. worker applications or resumes received in response to the recruitment campaign. If a qualified, willing, and available U.S. worker submits an application during this period, the Company must evaluate the application against the minimum requirements for the position and document its disposition in the same manner as all other applications received during the active recruitment campaign.
Importantly, no additional recruitment activities may be conducted during the quiet period for the purpose of the PERM filing. The quiet period is designed to allow a reasonable interval between the completion of recruitment and the filing of the PERM application, during which any remaining applicants may come forward.
D. Step 4: Preparation of the Recruitment Report
After the 30-day quiet period has elapsed, C&H will prepare a detailed recruitment report for each position. The recruitment report is one of the most critical documents in the PERM process, as it constitutes the employer's formal record of the labor market test and serves as the primary evidence in the event of a DOL audit.
Each recruitment report will document the following information:
• A comprehensive summary of all recruitment steps taken, including the dates of each recruitment activity, the names of publications and websites used, and copies or references to all advertisements placed;
• The total number of resumes and applications received in response to each recruitment effort;
• An applicant-by-applicant disposition, with lawful, job-related reasons for any applicant who was considered but not hired. Reasons for rejection must relate to the applicant's failure to meet the minimum requirements for the position as stated in the PERM application (e.g., the applicant lacked the required degree, the applicant did not possess the required years of experience, or the applicant was unwilling to accept the offered wage or work conditions);
• A conclusion as to whether any qualified, willing, and available U.S. worker was identified through the recruitment process.
The recruitment report is not filed with the PERM application but must be maintained in the employer's audit file and made available to the DOL upon request. C&H will prepare each report in close coordination with Lumos's internal team (specifically, Janelle Kwon, as the designated immigration contact) and will ensure that all applicant evaluations are conducted fairly, documented accurately, and supported by the evidence in the file.
E. Step 5: Filing ETA Form 9089 (PERM Application)
Upon completion of the recruitment report and confirmation that no qualified, willing, and available U.S. worker was identified for the position, C&H will prepare and file ETA Form 9089 (Application for Permanent Employment Certification) electronically with the DOL's Atlanta National Processing Center for each of the four positions.
There is no government filing fee for the ETA Form 9089. The PERM application is submitted at no cost to the employer or the beneficiary through the DOL's FLAG (Foreign Labor Application Gateway) online system.
The ETA Form 9089 contains detailed information about the employer (including corporate information, number of employees, and annual revenue), the job opportunity (including the job title, duties, minimum requirements, offered wage, and prevailing wage), and the beneficiary's qualifications (including education, work experience, and current immigration status). The form also includes several employer attestations, discussed in Section V.F below, which are signed under penalty of perjury by an authorized representative of Lumos.
The filing date of the ETA Form 9089 is of critical importance because it establishes the priority date for immigration purposes. The priority date determines the beneficiary's place in the EB-2 immigrant visa queue and directly affects when the beneficiary will be eligible to file for adjustment of status or consular processing. As discussed further in Section IX.B below, the significance of the priority date varies considerably depending on the beneficiary's country of birth.
Based on the projected timeline, C&H anticipates filing the ETA Form 9089 applications for all four positions in December 2023 through January 2024.
The expected DOL processing time for PERM applications is approximately six to eight weeks from the date of filing, although processing times are subject to fluctuation based on DOL workload and other factors. C&H will monitor the status of each application through the DOL's case tracking system.
F. Step 6: PERM Certification
Upon the DOL's review of the PERM application, one of the following outcomes will occur:
Approval without Audit. If the DOL determines that the application is complete and compliant on its face, it will issue a certified ETA Form 9089, which serves as the approved labor certification. The certified form will be returned to C&H electronically and will be included as a required supporting document in the subsequent I-140 petition filing.
Audit. The DOL randomly audits a percentage of all PERM applications. In addition, certain application characteristics — such as foreign language requirements, unusually restrictive special requirements, or other factors that may raise questions about the bona fide nature of the labor market test — may trigger a targeted audit. If any of the four applications is selected for audit, the DOL will issue a written audit notification requesting the recruitment report, all supporting recruitment documentation, and potentially additional evidence. Lumos and C&H must respond to the audit request within 30 calendar days of the date of the audit letter. Preparation of the audit response is within the scope of C&H's representation under this engagement.
Supervised Recruitment or Denial. In rare cases, the DOL may order supervised recruitment (requiring the employer to re-conduct certain recruitment steps under DOL oversight) or may deny the application. C&H will advise Lumos on appropriate next steps in the event of any adverse outcome.
Upon certification of the PERM application, Phase 1 is complete, and the matter proceeds to Phase 2 — the filing of the I-140 Immigrant Petition with USCIS.
IV. Phase 2: I-140 Immigrant Petition
A. Filing the I-140 Petition
Following PERM labor certification, C&H will prepare and file Form I-140 (Immigrant Petition for Alien Workers) with the USCIS Texas Service Center for each of the four beneficiaries. The I-140 petition is the vehicle through which the employer formally petitions USCIS to classify the beneficiary as an EB-2 Advanced Degree Professional and establishes the beneficiary's eligibility for an employment-based immigrant visa.
The government filing fees for each I-140 petition are as follows:
C&H strongly recommends that Lumos elect premium processing for all four I-140 petitions. Premium processing, requested via the filing of Form I-907, guarantees that USCIS will issue an initial decision (approval, denial, or Request for Evidence) within 15 calendar days of receipt of the petition. Given the importance of timely I-140 approvals for all four beneficiaries — and particularly for Mr. Aguilar-Reyes, whose L-1A nonimmigrant status is set to expire on July 30, 2024 — premium processing represents a prudent investment that will minimize uncertainty and allow the Company and the beneficiaries to plan effectively for subsequent steps.
Without premium processing, standard I-140 processing times at the Texas Service Center can range from six to twelve months or longer, depending on USCIS workload. This delay would be impractical given the objectives of this engagement and the status-related concerns identified for Mr. Aguilar-Reyes.
B. Required Supporting Documentation
Each I-140 petition filed by C&H on behalf of Lumos will be accompanied by a comprehensive evidentiary package. The specific documents required include the following:
• Certified PERM labor certification (ETA Form 9089). The original certified labor certification form issued by the DOL, demonstrating that the labor market test was completed and that no qualified U.S. worker was available for the position.
• Employer support letter. A detailed letter signed by authorized Lumos executives — specifically, CEO Priya Chandrasekaran and VP People Operations Sonia Elliston — confirming the existence of the bona fide job offer, the specific terms of the offered salary, the beneficiary's qualifications for the position, and the Company's intent to employ the beneficiary on a full-time, permanent basis upon the granting of permanent residence. C&H will draft these letters for Lumos's review and signature.
• Beneficiary's educational credentials. Copies of diplomas, degree certificates, and academic transcripts for each beneficiary's qualifying advanced degree. For beneficiaries whose degrees were conferred by foreign institutions (Mr. Mehta, Ms. Varga, and Mr. Aguilar-Reyes), C&H will obtain formal credential evaluations from a recognized credential evaluation service confirming that the foreign degree is the equivalent of a U.S. Master's degree or higher.
• Evidence of qualifying experience. Employment verification letters from current and/or former employers confirming the beneficiary's progressive work experience in the relevant field. These letters must be on company letterhead, signed by an authorized individual (such as a supervisor or HR representative), and must describe the beneficiary's job title, dates of employment, and specific duties performed.
• Current nonimmigrant status documentation. Copies of each beneficiary's current H-1B or L-1A approval notices (Form I-797), valid passport biographical pages, and any other relevant immigration status documentation.
• Evidence of employer's ability to pay the offered wage. As described in detail in Section IV.C below, Lumos must demonstrate its financial capacity to pay the offered wage to each beneficiary from the priority date onward.
C. Ability-to-Pay Requirement
Under 8 CFR § 204.5(g)(2), the petitioning employer must demonstrate the continuing ability to pay the proffered wage from the priority date (i.e., the date of the PERM filing) through the date of adjudication of the I-140 petition and beyond. This is a critical evidentiary requirement, and USCIS scrutinizes the employer's financial documentation carefully.
USCIS evaluates the ability to pay using one or more of the following methods:
• Annual reports, federal tax returns, or audited financial statements demonstrating that the company's net income equals or exceeds the offered wage. In cases where the employer is already paying the beneficiary a wage, USCIS may look to whether the company's net income or net current assets exceed the difference between the offered wage and the wage currently being paid to the beneficiary.
• Evidence that the employer employs the beneficiary and is already paying the offered wage. If the beneficiary is currently employed by the petitioning employer and is receiving a salary equal to or greater than the offered wage, this alone may satisfy the ability-to-pay requirement.
For Lumos Analytics Inc., the ability-to-pay showing should be straightforward. The Company reported fiscal year 2023 annual revenue of $87.4 million and currently employs 312 employees as of June 2023. The combined offered wages for the four beneficiaries total $1,130,000 per year, which represents a modest fraction of the Company's annual revenue and overall compensation expense. Lumos is well-positioned to satisfy the ability-to-pay standard under any of the methods outlined above.
Action Items for Lumos. To satisfy the ability-to-pay requirement, Lumos will need to provide C&H with the following documents in connection with the I-140 filings:
• Most recent annual report (if publicly available) or, more likely, the Company's federal income tax returns for fiscal years 2022 and 2023 (IRS Form 1120, U.S. Corporation Income Tax Return, or equivalent);
• Audited financial statements for fiscal years 2022 and 2023, if available, prepared by the Company's independent auditor;
• Payroll records (e.g., pay stubs, W-2 forms, or payroll summaries) confirming the current compensation being paid to each of the four beneficiaries;
• Any additional corporate financial documentation demonstrating the Company's financial strength, such as bank statements, line-of-credit agreements, or documentation regarding the Company's private equity sponsorship by Ridgeline Equity Partners, LP, which holds a 38.2% equity stake in Lumos. While USCIS primarily relies on tax returns and audited financials, supplemental evidence of financial resources can strengthen the record in the event of a Request for Evidence.
C&H will advise Lumos on the specific format and presentation of these documents to ensure compliance with USCIS evidentiary standards.
D. I-140 Adjudication and Approval
Under premium processing, USCIS must issue an initial action on the I-140 petition within 15 calendar days of receipt. The possible outcomes are as follows:
• Approval. If USCIS determines that the petition is approvable on the basis of the submitted evidence, USCIS will issue an I-140 Approval Notice (Form I-797). The beneficiary's priority date — the date on which the underlying PERM application was filed — is thereby established for purposes of the immigrant visa queue.
• Request for Evidence (RFE). If USCIS determines that additional evidence is needed to adjudicate the petition, it will issue a Request for Evidence specifying the deficiencies and providing a deadline for response (typically 84 days). Common RFE topics include ability-to-pay documentation, credential evaluation questions, and experience verification. If an RFE is issued, C&H will prepare a comprehensive and timely response.
• Denial. If USCIS determines that the petition does not satisfy the regulatory requirements, it will issue a denial. A denial may be appealed to the USCIS Administrative Appeals Office ("AAO") or, in some cases, the petition may be re-filed with additional evidence. C&H will advise Lumos on the appropriate course of action in the unlikely event of a denial.
Upon approval of the I-140, the beneficiary's immigration case is positioned for the final phase of the green card process (adjustment of status or consular processing), subject to immigrant visa number availability as discussed in Section IX.B below.
V. Key Employer Obligations Under 20 CFR Part 656
Throughout the PERM labor certification process, Lumos Analytics Inc. bears significant legal obligations as the petitioning employer. These obligations are established by the DOL's PERM regulations at 20 CFR Part 656 and are reinforced by the employer's attestations on the ETA Form 9089. Failure to comply with these obligations can result in denial of the PERM application, audit findings, debarment from the PERM program, or other adverse consequences. This section summarizes the key employer obligations that Lumos must understand and observe.
A. Bona Fide Job Opening
The position for which Lumos seeks labor certification must represent a genuine, full-time, permanent job opportunity. The job must be a real opening that the Company intends to fill and must be available to U.S. workers on the same terms and conditions as offered to the foreign-national beneficiary. A PERM application may not be filed for a position that has been created solely for the purpose of obtaining labor certification for a specific individual, nor may the position be a temporary, part-time, or seasonal role unless the PERM application specifically identifies it as such (which is not the case here).
Critically, Lumos must not have pre-selected the beneficiary for the position. The recruitment campaign must be a genuine test of the U.S. labor market, conducted in good faith, with the Company prepared to hire a qualified U.S. worker if one is identified. While the DOL recognizes that the beneficiary may currently be performing the duties of the position (as is the case with all four beneficiaries here), this does not relieve the employer of the obligation to conduct recruitment and to evaluate all applicants fairly against the stated minimum requirements.
B. Prohibition on Tailoring Job Requirements
Under 20 CFR § 656.17(h), the minimum education, training, experience, and special skill requirements listed on the PERM application must be the actual minimum requirements for the position as it exists within the Company — not requirements that have been tailored or inflated to match the specific beneficiary's qualifications and thereby disqualify potential U.S. worker applicants.
This prohibition is a cornerstone of the PERM process. The DOL closely scrutinizes job requirements that appear unusual, overly specific, or disproportionate to the position's actual duties. For example, if a position requires a Master's degree but Lumos has historically hired individuals with only a Bachelor's degree for the same or substantially similar role, the DOL may challenge the advanced degree requirement as having been tailored to the beneficiary.
Any special requirements — such as proficiency in specific programming languages, certifications (e.g., CISSP for Ms. Tanaka), familiarity with particular technologies or platforms, or knowledge of specific regulatory frameworks — must be justified by business necessity. That is, the Company must be able to demonstrate that the requirement is essential to perform the job duties and is not merely a preferred qualification designed to narrow the applicant pool in favor of the beneficiary.
C&H will work closely with Lumos's hiring managers and HR team to draft job requirements for each of the four positions that accurately reflect each position's actual operational needs and that can be substantiated by the Company's hiring history, organizational structure, and business requirements. This collaborative process is essential to minimizing the risk of a DOL challenge or audit finding on this issue.
C. Offered Wage Obligation
As noted in Section III.A above, Lumos must offer each beneficiary a wage that is at least equal to the prevailing wage determination issued by the NPWC or the actual wage (i.e., the wage paid to similarly employed workers at Lumos in the same occupation and geographic area), whichever is higher. See 20 CFR § 656.10(c).
Based on the current offered salaries for the four beneficiaries ($285,000, $310,000, $275,000, and $260,000 per year, respectively), all offered wages are anticipated to substantially exceed the prevailing wages for the corresponding SOC codes at the relevant wage levels in the San Jose-Sunnyvale-Santa Clara MSA. Accordingly, we do not foresee any compliance issues with respect to the offered wage obligation. However, C&H will confirm this upon receipt of the prevailing wage determinations and will promptly advise Lumos if any adjustment to the offered wages is necessary.
D. No Payment of Certain Costs by Beneficiary
Under DOL regulations and longstanding USCIS policy, the employer must bear the costs of the PERM process. The beneficiary may not be required to pay, reimburse, or contribute to any PERM-related fees, recruitment advertising costs, or legal fees associated with the labor certification process. See 20 CFR § 656.12(b). Any arrangement requiring the beneficiary to absorb these costs — whether directly or through payroll deductions, contractual reimbursement agreements, or other mechanisms — is prohibited and may result in the denial or revocation of the labor certification.
The beneficiary may voluntarily elect to pay for certain costs associated with the I-140 filing (such as the government filing fee or premium processing fee), as these are USCIS fees rather than DOL/PERM fees. However, as a matter of best practice and to avoid any potential compliance concerns, C&H recommends that Lumos bear all costs associated with both the PERM and I-140 phases of the process. The fee structure reflected in Section VII of this memorandum is structured on this basis.
E. Document Retention
Lumos must retain all PERM-related documentation for a period of five (5) years from the date of filing of the ETA Form 9089 or from the date the recruitment was conducted, whichever is later. This retention obligation applies regardless of the outcome of the PERM application — that is, the obligation exists whether the application is certified, denied, withdrawn, or otherwise disposed of.
The documents that must be retained include, without limitation:
• The recruitment report and all supporting documentation;
• Copies of all advertisements placed (tearsheets for print ads, screenshots or confirmations for online postings, SWA job order confirmations);
• All resumes and applications received in response to recruitment;
• Applicant disposition records documenting the evaluation and disposition of each applicant;
• The filed and/or certified ETA Form 9089;
• The prevailing wage determination (Form ETA-9141 response);
• Internal posting records (Notice of Filing, dates posted, location posted);
• Correspondence with the DOL, SWA, and any recruitment vendors; and
• Any audit-related documentation, if applicable.
C&H recommends that Lumos designate a secure, centralized location — either physical or electronic — for the retention of these records, with access restricted to authorized personnel. C&H will maintain parallel copies of all PERM-related documentation in the Firm's files in accordance with the Firm's document retention policy.
F. Employer Attestations
By signing the ETA Form 9089, an authorized representative of Lumos — typically the General Counsel, Marcus Whitfield, or the HR Manager, Janelle Kwon — will attest under penalty of perjury to a series of statements that are fundamental to the integrity of the PERM process. These attestations include, among others:
• The job opportunity described in the application is a bona fide, full-time, permanent position;
• The offered wage equals or exceeds the prevailing wage for the occupation in the area of intended employment;
• The minimum education, training, experience, and other requirements listed on the application are the actual minimum requirements for the job opportunity;
• Supervised recruitment was conducted in good faith in accordance with 20 CFR Part 656;
• No qualified, willing, and available U.S. worker was rejected for other than lawful, job-related reasons;
• The job opportunity is open to any qualified U.S. worker, not solely to the named beneficiary;
• The employer has not laid off and will not lay off U.S. workers in the same or a related occupation within the area of intended employment within 180 days of filing the PERM application, unless the employer has notified and considered all potentially affected U.S. workers for the position; and
• The information provided in the application is true and accurate to the best of the signatory's knowledge.
The signatory should be an individual who has personal knowledge of or supervisory authority over the Company's hiring practices, compensation policies, and employment records. C&H will review all attestation statements with Lumos prior to execution and will ensure that the authorized signatory understands the scope and significance of these representations.
VI. Estimated Timeline
The following table presents a master timeline for all four cases, from the date of engagement through estimated I-140 approval. All dates are estimates based on current agency processing times and are subject to change based on DOL and USCIS workload, the occurrence of audits or Requests for Evidence, and the timely provision of required documentation by Lumos. C&H will provide updated timeline projections as the cases progress through each phase.
Special Note Regarding Tomás Aguilar-Reyes. Mr. Aguilar-Reyes's L-1A intracompany transferee nonimmigrant status is currently valid through July 30, 2024. Based on the projected timeline above, C&H anticipates that the I-140 petition for Mr. Aguilar-Reyes will be filed and approved by approximately March or April 2024, which is well in advance of his L-1A expiration date. However, if any delays occur — whether due to extended NPWC processing, a PERM audit, or other unforeseen circumstances — there is a risk that the I-140 process may not be completed before his status expires.
C&H therefore recommends prioritizing Mr. Aguilar-Reyes's case throughout the process and, as a contingency measure, preparing a plan for either (a) an L-1A extension application (if Mr. Aguilar-Reyes remains eligible for an extension under the L-1 seven-year maximum stay rules), or (b) a cap-exempt H-1B change-of-status filing (for which Mr. Aguilar-Reyes may be eligible as a current L-1A holder working for a qualifying employer). C&H will evaluate these options and provide a separate advisory if contingency planning becomes necessary.
VII. Fee Structure and Cost Summary
The following summarizes the agreed-upon fees for this engagement, as set forth in the Engagement Letter dated June 12, 2023, between Calderwood & Harkness LLP and Lumos Analytics Inc.:
The flat legal fee of $12,500 per beneficiary covers all C&H professional services for both the PERM labor certification phase and the I-140 petition filing phase, including prevailing wage request preparation, recruitment supervision, recruitment report drafting, ETA Form 9089 preparation and filing, I-140 petition preparation and filing, and response to any DOL audit or USCIS Request for Evidence that may arise in connection with these filings.
Recruitment advertising costs are estimated at $3,200 per case and will be billed to Lumos at actual cost as incurred. These costs include newspaper advertisements in The Peninsula Gazette, online posting fees in FinTech Talent Weekly, and any nominal campus posting fees associated with the Baxter University Career Center. Actual advertising costs may vary slightly from the estimates provided above depending on advertising rates at the time of placement. C&H will provide Lumos with copies of all vendor invoices.
Payment Terms. In accordance with the Engagement Letter, the following payment schedule applies:
• First installment: 50% of flat legal fees ($25,000) invoiced upon engagement and due upon receipt.
• Second installment: Remaining 50% of flat legal fees ($25,000) invoiced upon the filing of the I-140 petitions and due within 30 days of invoice date.
• Government filing fees and advertising costs: Invoiced at cost when incurred, due within 30 days of invoice date.
All invoices will be directed to Lumos Analytics Inc., Attn: Accounts Payable, 2240 Embarcadero Way, Suite 600, Palo Alto, CA 94303, unless Lumos designates an alternative billing contact.
VIII. Lumos Action Items and Required Documentation
The success and efficiency of the PERM and I-140 process depend in significant part on the timely provision of required documents and information by Lumos. This section summarizes the documents and information that C&H will need from Lumos at each stage of the engagement.
Immediate Action Items (for PWD Filing — Due by June 21, 2023)
To enable C&H to file the prevailing wage determination requests by the target date of June 26, 2023, Lumos must provide the following by June 21, 2023:
1. Finalized job descriptions for all four positions, including a detailed description of duties, minimum education requirements (degree level and field of study), minimum experience requirements (years and type of experience), and any special requirements (e.g., specific certifications, technologies, or skills). C&H can provide templates or guidance for structuring these descriptions to comply with DOL requirements.
2. Confirmation of offered salaries for each position, as stated in Section III.A above. If any offered salary has changed or is expected to change, please advise C&H immediately.
3. Organizational charts showing the reporting structure for each role, including the beneficiary's direct supervisor, direct reports, and position within the relevant business unit.
4. Confirmation of worksite address — 2240 Embarcadero Way, Suite 600, Palo Alto, CA 94303. If any of the four beneficiaries will be assigned to a different primary worksite, please advise C&H so that the geographic area of employment can be adjusted accordingly.
For the Recruitment Phase (October – November 2023)
5. Designation of internal contact to receive and log resumes. C&H recommends that Janelle Kwon serve as the primary internal contact for receiving and logging all applications and resumes submitted by U.S. workers in response to the recruitment campaign. The designated contact should maintain a centralized log of all applicants and should promptly forward all resumes and applications to C&H for review.
6. Coordination with Broadgate Compliance Services LLC for the placement of required advertisements. Lumos should authorize Broadgate to act on the Company's behalf for advertising placement and should promptly execute any vendor agreements or authorizations required by Broadgate.
7. Posting of internal notices at the Palo Alto worksite for 10 consecutive business days. C&H will provide a template Notice of Filing for each position. Lumos should post each notice in a conspicuous location at the worksite (e.g., a common-area bulletin board, break room, or reception area) and should document the posting and takedown dates, ideally with a dated photograph of the posted notice.
8. Review of received resumes and participation in applicant evaluations against minimum requirements. Lumos's hiring managers and/or HR team will need to review resumes received through the recruitment campaign and provide C&H with their assessment of whether each applicant meets the minimum requirements for the position. C&H will guide Lumos through the evaluation process and will document all applicant dispositions in the recruitment report.
For PERM Filing (December 2023 – January 2024)
9. Signed employer attestation pages on ETA Form 9089, executed by the authorized signatory (Marcus Whitfield or Janelle Kwon). C&H will prepare the form and arrange for electronic signature through the DOL's FLAG system.