MEMORANDUM

MEMORANDUM
PRIVILEGED & CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION
Calderwood & Harkness LLP 555 California Street, 32nd Floor San Francisco, CA 94104 Tel: (415) 553-7000
Fax: (415) 553-7001
Date: October 3, 2023
From: Derek Okonkwo, Associate, Calderwood & Harkness LLP
To: Janelle Kwon, HR Manager (Immigration Contact), Lumos Analytics Inc. Sonia Elliston, Vice President, People Operations, Lumos Analytics Inc.
Cc: Colette Whitman, Partner, Calderwood & Harkness LLP
Re: PERM Supervised Recruitment Plan — Four Positions (Matter No. 1008-00004)
This memorandum is a privileged and confidential attorney-client communication prepared by Calderwood & Harkness LLP for the exclusive use of Lumos Analytics Inc. in connection with pending PERM labor certification applications. It is not intended for distribution to third parties and is protected by the attorney-client privilege and the work product doctrine. If you have received this memorandum in error, please notify the sender immediately and destroy all copies.
I. Purpose and Overview
This memorandum sets forth the comprehensive recruitment plan for the PERM labor certification applications being prepared on behalf of Lumos Analytics Inc. ("Lumos" or "the Company") for four foreign national beneficiaries under the EB-2 (Employment-Based Second Preference — Advanced Degree Professional) classification. Each of the four positions for which labor certification is being sought requires at a minimum a master's degree or its equivalent and, accordingly, each beneficiary will be sponsored under the EB-2 advanced-degree professional category.
The recruitment described herein is conducted pursuant to 20 C.F.R. § 656.17, which governs the supervised recruitment process for professional occupations — that is, occupations for which the employer requires at least a bachelor's degree as a minimum educational credential. Because each of the four positions at issue requires a master's degree or higher, all four qualify as professional occupations subject to the enhanced recruitment obligations set forth at 20 C.F.R. § 656.17(e), including the requirement to conduct a minimum of three mandatory recruitment steps and three additional recruitment steps selected from a regulatory menu of ten options.
The fundamental purpose of the PERM recruitment process is to test the U.S. labor market and demonstrate, through a good-faith recruitment campaign, that there are no qualified, willing, and available U.S. workers for each of the four positions at the time of filing the PERM application (ETA Form 9089) with the U.S. Department of Labor ("DOL"). If the recruitment results demonstrate that no able, willing, qualified, and available U.S. workers exist for a given position, the DOL may certify the labor certification application, enabling Lumos to proceed with the filing of an I-140 Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services ("USCIS") on behalf of each beneficiary.
All four positions are located at Lumos's corporate headquarters at 2240 Embarcadero Way, Suite 600, Palo Alto, California 94303. For prevailing wage determination purposes, the relevant geographic area is the San Jose-Sunnyvale-Santa Clara, California Metropolitan Statistical Area (OES Area Code 41940), which encompasses the Palo Alto worksite.
We are pleased to confirm that prevailing wage determinations ("PWDs") have been received from the DOL's National Prevailing Wage Center ("NPWC") for all four positions. In each case, the offered salary substantially exceeds the applicable prevailing wage, thereby satisfying the statutory and regulatory requirement under 20 C.F.R. § 656.10(c) that the offered wage be at least equal to the prevailing wage for the occupation in the area of intended employment. With the prevailing wage determinations in hand, recruitment may now commence in accordance with the schedules set forth below.
Recruitment advertising placement and compliance documentation will be coordinated with Broadgate Compliance Services LLC ("Broadgate"), the firm's retained recruitment advertising vendor and PERM compliance consultant. Broadgate is led by Gerald Fitzmorris, Principal, and is located at 1414 K Street NW, Suite 730, Washington, DC 20005. Broadgate has extensive experience managing the logistical aspects of PERM recruitment campaigns and will work directly with Calderwood & Harkness to ensure that all advertising placements are timely, compliant with DOL regulations, and properly documented.
This memorandum is organized as follows: Section II provides a detailed summary of each position, beneficiary, and prevailing wage determination. Section III sets forth the recruitment campaign schedule. Sections IV and V describe the mandatory and additional recruitment steps. Section VI addresses coordination with Broadgate. Section VII presents advertising cost estimates. Section VIII outlines Lumos's obligations during the recruitment period. Sections IX and X address the 30-day quiet period, recruitment completion, and document retention requirements. Section XI provides a consolidated timeline summary. Section XII identifies immediate action items for Lumos. Section XIII provides contact information for all relevant parties, and Section XIV provides concluding remarks.
II. Summary of Positions, Beneficiaries, and Prevailing Wage Determinations
This section provides a detailed overview of each of the four positions for which PERM labor certification applications are being prepared, including the identity and immigration status of each beneficiary, the applicable SOC code, the prevailing wage determination, the offered salary, and the minimum education, experience, and special requirements for each position.
A. Position 1 — Vice President, Engineering — Core Platform (Rajan Mehta)
Beneficiary: Rajan Mehta
Citizenship: India
Current Immigration Status: H-1B nonimmigrant status, valid through September 14, 2025. Mr. Mehta's H-1B status provides sufficient runway to complete the PERM and I-140 process, though extensions may be required depending on the progress of any subsequent adjustment of status or consular processing timeline.
SOC Code: 15-1252 (Software Developers)
Position Title: Vice President, Engineering — Core Platform
Offered Annual Salary: $285,000.00
Prevailing Wage Determination: The NPWC issued the prevailing wage determination for this position on September 8, 2023. The determined prevailing wage is Level IV, $198,744.00 per year, based on the San Jose-Sunnyvale-Santa Clara, CA MSA (OES Area Code 41940) for SOC Code 15-1252.
Wage Differential: The offered salary of $285,000.00 exceeds the prevailing wage of $198,744.00 by $86,256.00, representing an excess of approximately 43.4%. The offered wage therefore satisfies the prevailing wage requirement under 20 C.F.R. § 656.10(c).
Minimum Education Requirement: Master's degree in Computer Science or a closely related field. A closely related field includes, but is not limited to, Computer Engineering, Software Engineering, or Electrical Engineering with a concentration in computer systems.
Minimum Experience Requirement: Five (5) years of progressive post-baccalaureate experience in software engineering, including two (2) years of specialized experience in distributed systems architecture. Experience gained concurrently with graduate education does not count toward the minimum experience requirement unless the experience was gained in a position separate from the educational program.
Special Requirements: The position requires demonstrated experience with Apache Kafka, Kubernetes, and microservices architecture at scale, specifically involving systems processing 100 million or more daily transactions. These special requirements reflect the actual minimum needs of the position given the scale and complexity of Lumos's Core Platform, which serves as the backbone for the Company's data analytics infrastructure.
B. Position 2 — Senior Director, Data Science & Machine Learning (Lina Varga)
Beneficiary: Lina Varga
Citizenship: Hungary
Current Immigration Status: H-1B nonimmigrant status, valid through March 2, 2026. Ms. Varga's H-1B validity provides ample time to complete the PERM process and subsequent I-140 filing.
SOC Code: 15-2051 (Data Scientists)
Position Title: Senior Director, Data Science & Machine Learning
Offered Annual Salary: $310,000.00
Prevailing Wage Determination: The NPWC issued the prevailing wage determination for this position on September 11, 2023. The determined prevailing wage is Level IV, $191,360.00 per year, based on the San Jose-Sunnyvale-Santa Clara, CA MSA (OES Area Code 41940) for SOC Code 15-2051.
Wage Differential: The offered salary of $310,000.00 exceeds the prevailing wage of $191,360.00 by $118,640.00, representing an excess of approximately 62.0%. The offered wage therefore satisfies the prevailing wage requirement under 20 C.F.R. § 656.10(c).
Minimum Education Requirement: Doctor of Philosophy (Ph.D.) in Statistics, Computer Science, or a closely related quantitative field. A closely related quantitative field includes, but is not limited to, Applied Mathematics, Machine Learning, Biostatistics, or Computational Science with a concentration in statistical methods.
Minimum Experience Requirement: Three (3) years of post-doctoral experience in applied machine learning, including two (2) years of specialized experience in financial services credit modeling. The post-doctoral experience must have been gained subsequent to the conferral of the Ph.D. degree.
Special Requirements: The position requires a demonstrated publication record in peer-reviewed academic journals on statistical learning methods. The candidate must also demonstrate proficiency in Python, R, and TensorFlow, which are the primary programming languages and frameworks used by Lumos's Data Science & Machine Learning division. These requirements are reflective of the analytical rigor and technical depth required to lead Lumos's machine learning research and deployment initiatives.
C. Position 3 — Vice President, Product — Fintech Solutions (Tomás Aguilar-Reyes)
Beneficiary: Tomás Aguilar-Reyes
Citizenship: Mexico
Current Immigration Status: L-1A intracompany transferee status, valid through July 30, 2024. Important Note: Mr. Aguilar-Reyes's L-1A status expires on July 30, 2024, which creates a time-sensitive filing imperative. Timely completion of the recruitment campaign and PERM filing is critical to preserving Mr. Aguilar-Reyes's ability to maintain lawful status in the United States while the I-140 petition is pending. Should there be any delays in the recruitment process or PERM adjudication, it may be necessary to explore interim status options, such as an H-1B change of status. Calderwood & Harkness will monitor this timeline closely.
SOC Code: 11-2021 (Marketing Managers). This SOC code represents the closest DOL occupational classification match for senior product management roles. While the position is fundamentally a product management leadership role, the DOL's Standard Occupational Classification system does not include a standalone code for "Product Manager" or "VP, Product," and 11-2021 (Marketing Managers) is the most closely aligned classification based on the position's duties, which include market analysis, competitive strategy, product roadmap development, and cross-functional team leadership.
Position Title: Vice President, Product — Fintech Solutions
Offered Annual Salary: $275,000.00
Prevailing Wage Determination: The NPWC issued the prevailing wage determination for this position on October 2, 2023. The determined prevailing wage is Level III, $176,842.00 per year, based on the San Jose-Sunnyvale-Santa Clara, CA MSA (OES Area Code 41940) for SOC Code 11-2021.
Wage Differential: The offered salary of $275,000.00 exceeds the prevailing wage of $176,842.00 by $98,158.00, representing an excess of approximately 55.5%. The offered wage therefore satisfies the prevailing wage requirement under 20 C.F.R. § 656.10(c).
Minimum Education Requirement: Master's degree in Business Administration, Finance, or a closely related field. A closely related field includes, but is not limited to, Financial Engineering, Economics, or Management Science.
Minimum Experience Requirement: Five (5) years of progressive experience in fintech product management, including three (3) years of experience managing cross-functional teams of fifteen (15) or more members. The cross-functional team management experience must have been gained in a fintech or financial services technology environment.
Special Requirements: The position requires experience with regulatory frameworks, specifically the Dodd-Frank Wall Street Reform and Consumer Protection Act and Consumer Financial Protection Bureau ("CFPB") guidelines, as applied to automated lending products. This requirement reflects the regulatory environment in which Lumos's Fintech Solutions division operates, as the Company's lending analytics products must comply with federal financial regulations.
D. Position 4 — Director, Information Security & Compliance (Yumiko Tanaka)
Beneficiary: Yumiko Tanaka
Citizenship: Japan
Current Immigration Status: H-1B nonimmigrant status, valid through November 18, 2025. Ms. Tanaka's H-1B validity provides adequate time to complete the PERM and I-140 process.
SOC Code: 15-1212 (Information Security Analysts)
Position Title: Director, Information Security & Compliance
Offered Annual Salary: $260,000.00
Prevailing Wage Determination: The NPWC issued the prevailing wage determination for this position on October 2, 2023. The determined prevailing wage is Level IV, $185,910.00 per year, based on the San Jose-Sunnyvale-Santa Clara, CA MSA (OES Area Code 41940) for SOC Code 15-1212.
Wage Differential: The offered salary of $260,000.00 exceeds the prevailing wage of $185,910.00 by $74,090.00, representing an excess of approximately 39.9%. The offered wage therefore satisfies the prevailing wage requirement under 20 C.F.R. § 656.10(c).
Minimum Education Requirement: Master's degree in Cybersecurity, Information Systems, or a closely related field. A closely related field includes, but is not limited to, Computer Science with a concentration in information security, Information Technology Management, or Network Security Engineering.
Minimum Experience Requirement: Four (4) years of progressive experience in information security, including two (2) years of specialized experience in SOC 2 Type II and ISO 27001 compliance implementation. The compliance implementation experience must include hands-on involvement in audit preparation, control design, evidence collection, and remediation management.
Special Requirements: The position requires a Certified Information Systems Security Professional ("CISSP") certification, which is a globally recognized credential administered by (ISC)². Additionally, the candidate must have experience securing cloud-native Software-as-a-Service ("SaaS") platforms hosted on Ridgeway Industries ("Meridian Technologies") and/or Aldermere Technologies ("GCP"). These requirements are directly tied to Lumos's operational infrastructure, which is a cloud-native SaaS platform deployed across Meridian Technologies and GCP environments and subject to SOC 2 Type II and ISO 27001 certification requirements.
III. Recruitment Campaign Schedule
The four PERM cases will be organized into two staggered recruitment campaigns, as described below. Within each campaign, recruitment steps for two positions will be conducted simultaneously to achieve administrative efficiency and cost savings while maintaining full regulatory compliance.
A. Campaign 1 — Mehta & Varga Positions
Campaign Commencement Date: October 9, 2023
The following recruitment steps will be initiated for the Vice President, Engineering — Core Platform (Mehta) and Senior Director, Data Science & Machine Learning (Varga) positions:
•  SWA Job Order Filing (CalJOBS): October 9, 2023. The job order will remain active for a minimum of 30 business days, as required under 20 C.F.R. § 656.17(e)(1)(i).
•  Internal Posting (Notice of Filing) Start Date: October 9, 2023. The internal posting must remain in place for 10 consecutive business days, concluding on or about October 22, 2023 (accounting for weekends and any observed holidays).
•  First Sunday Newspaper Advertisement (The Peninsula Gazette): October 15, 2023. This represents the first of two required Sunday print advertisements in a newspaper of general circulation in the area of intended employment.
•  Second Sunday Newspaper Advertisement (The Peninsula Gazette): October 22, 2023. This represents the second of the two required Sunday print advertisements.
•  FinTech Talent Weekly Online Advertisement: To be placed during the week of October 9, 2023. The online posting will remain active for a minimum of 30 days.
•  Baxter University Career Center Posting: To be submitted during the week of October 9, 2023. The posting will remain active per the career center's standard posting duration.
•  Employee Referral Program Posting: To be posted internally concurrent with the internal job posting (Notice of Filing), during the week of October 9, 2023. The referral notice will be distributed via Lumos's internal communication channels.
•  30-Day Quiet Period End / Campaign Conclusion: November 20, 2023. The quiet period begins after the conclusion of the last active recruitment step and runs for 30 calendar days.
•  Earliest PERM Filing Date (ETA Form 9089): November 21, 2023. The PERM application may be filed at any time on or after this date, but must be filed no later than 180 days after the first recruitment step was initiated (i.e., no later than April 6, 2024).
B. Campaign 2 — Aguilar-Reyes & Tanaka Positions
Campaign Commencement Date: October 23, 2023
The following recruitment steps will be initiated for the Vice President, Product — Fintech Solutions (Aguilar-Reyes) and Director, Information Security & Compliance (Tanaka) positions:
•  SWA Job Order Filing (CalJOBS): October 23, 2023. The job order will remain active for a minimum of 30 business days.
•  Internal Posting (Notice of Filing) Start Date: October 23, 2023. The internal posting must remain in place for 10 consecutive business days, concluding on or about November 3, 2023.
•  First Sunday Newspaper Advertisement (The Peninsula Gazette): October 29, 2023.
•  Second Sunday Newspaper Advertisement (The Peninsula Gazette): November 5, 2023.
•  FinTech Talent Weekly Online Advertisement: To be placed during the week of October 23, 2023.
•  Baxter University Career Center Posting: To be submitted during the week of October 23, 2023.
•  Employee Referral Program Posting: To be posted internally concurrent with the internal job posting, during the week of October 23, 2023.
•  30-Day Quiet Period End / Campaign Conclusion: December 4, 2023.
•  Earliest PERM Filing Date (ETA Form 9089): December 5, 2023. The PERM application must be filed no later than 180 days after the first recruitment step (i.e., no later than April 20, 2024).
C. Note on Staggered Timing
The two campaigns are staggered by approximately two weeks for several practical and strategic reasons. First, the prevailing wage determinations for the Aguilar-Reyes and Tanaka positions were received from the NPWC on October 2, 2023 — approximately three to four weeks after the PWDs for the Mehta position (September 8, 2023) and the Varga position (September 11, 2023) were received. Because recruitment cannot commence until a valid prevailing wage determination is in hand, the Campaign 2 positions could not begin recruitment on the same schedule as Campaign 1.
Second, staggering the campaigns allows for orderly management of advertisement placements, applicant tracking, and resume review. Running all four positions simultaneously would create an unnecessarily compressed timeline for reviewing incoming applications and could increase the risk of administrative errors in the documentation process.
Third, and of particular importance, we note that Mr. Aguilar-Reyes's L-1A nonimmigrant status is set to expire on July 30, 2024. While the staggered timeline does not create an immediate urgency, it is imperative that the Campaign 2 recruitment proceed without delay and that the PERM application for the Aguilar-Reyes position be filed as soon as practicable after the December 4, 2023 quiet period conclusion. Any delays in the recruitment process, PERM filing, or subsequent DOL adjudication could create complications for maintaining Mr. Aguilar-Reyes's lawful immigration status. Calderwood & Harkness will monitor this timeline closely and will advise on any necessary contingency planning, including the possibility of filing an H-1B change of status petition if the PERM process extends beyond the L-1A validity period.
IV. Mandatory Recruitment Steps — Professional Occupations Under 20 C.F.R. § 656.17(e)
For professional occupations — defined as positions requiring at least a bachelor's degree or higher as a minimum educational credential — the DOL requires the employer to complete three mandatory recruitment steps plus three additional recruitment steps selected from a regulatory menu of ten options listed at 20 C.F.R. § 656.17(e)(1)(ii). All four positions at issue in this memorandum qualify as professional occupations, as each requires a master's degree or higher as the minimum educational requirement. Accordingly, the full complement of six recruitment steps (three mandatory plus three additional) must be completed for each position.
The three mandatory recruitment steps are described in detail below.
A. Step 1 — Job Order with State Workforce Agency (SWA)
Regulatory Basis: 20 C.F.R. § 656.17(e)(1)(i)
The employer must place a job order with the State Workforce Agency ("SWA") serving the area of intended employment. For positions located in California, the relevant SWA is the California Employment Development Department ("EDD"), and the job order is filed through CalJOBS, California's online job order and labor exchange system.
The SWA job order must remain active for a minimum of 30 business days. The job order must include the following information: the job title, a description of job duties, the minimum education and experience requirements, the offered salary, the worksite location, and the employer's name and address. The job order should also include instructions for interested applicants to apply directly to the employer.
Filing Dates:
•  Mehta & Varga Positions (Campaign 1): The CalJOBS job orders for both positions will be filed on October 9, 2023. Each job order will remain active for a minimum of 30 business days.
•  Aguilar-Reyes & Tanaka Positions (Campaign 2): The CalJOBS job orders for both positions will be filed on October 23, 2023. Each job order will remain active for a minimum of 30 business days.
Cost: There is no cost associated with filing a job order through CalJOBS.
Coordination: Broadgate Compliance Services LLC will prepare and file the CalJOBS job order postings on behalf of Lumos Analytics Inc. Calderwood & Harkness will review the content of each job order prior to submission to ensure full compliance with the content requirements of 20 C.F.R. § 656.17 and consistency with the corresponding prevailing wage determination and ETA Form 9089 drafts.
B. Step 2 — Two Sunday Print Advertisements in Newspaper of General Circulation
Regulatory Basis: 20 C.F.R. § 656.17(e)(1)(i)(B)
The employer must place two print advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. Sunday placement is specifically required by the regulations for professional occupations. The newspaper selected must serve the geographic area where the job will be performed — in this case, the Palo Alto area within the broader San Jose-Sunnyvale-Santa Clara, CA MSA.
Newspaper: The Peninsula Gazette, located at 780 Hamilton Avenue, Palo Alto, CA 94301. The Peninsula Gazette is a newspaper of general circulation serving the Silicon Valley region, including Palo Alto, and is regularly used for PERM recruitment advertising in this geographic area. Our advertising contact at The Peninsula Gazette is Noreen Caswell, Advertising Representative.
Content Requirements: Each advertisement must include the following: the job title, a summary of job duties, the minimum education and experience requirements, the employer's name, the worksite location, and instructions for applying. Although the regulations do not strictly require disclosure of the salary or salary range in the newspaper advertisement, DOL best practices and recent audit trends strongly favor inclusion of the salary or salary range. We therefore recommend including the offered salary in each advertisement.
The advertisement must not contain any requirements that are not listed on the ETA Form 9089, and the stated requirements must be the employer's actual minimum requirements for the position. The advertisement should not include language that could be viewed as discouraging U.S. worker applicants.
Advertising Dates:
•  Mehta & Varga Positions (Campaign 1):
•  First Sunday Advertisement: October 15, 2023
•  Second Sunday Advertisement: October 22, 2023
•  Aguilar-Reyes & Tanaka Positions (Campaign 2):
•  First Sunday Advertisement: October 29, 2023
•  Second Sunday Advertisement: November 5, 2023
Estimated Cost: Approximately $1,800 per pair of Sunday advertisements. Because the Mehta and Varga positions will be advertised in the same edition, and the Aguilar-Reyes and Tanaka positions will similarly be advertised together, the cost covers both positions advertised in the same newspaper edition on each Sunday. The total estimated cost for all four Sunday advertisement pairs (across both campaigns) is approximately $3,600.
Coordination and Documentation: Broadgate Compliance Services LLC will coordinate placement of all newspaper advertisements with Noreen Caswell at The Peninsula Gazette. Calderwood & Harkness will review advertising proofs prior to publication to confirm compliance with DOL content requirements. Upon publication, Lumos must obtain and retain tearsheets (actual newspaper clippings showing the published advertisement) or, alternatively, publisher's affidavits confirming the dates and content of publication. Broadgate will assist in obtaining these materials. Tearsheets and/or publisher's affidavits must be retained in the PERM audit file.
C. Step 3 — Internal Posting (Notice of Filing) at Employer's Worksite
Regulatory Basis: 20 C.F.R. § 656.10(d)
The employer must post an internal Notice of Filing at the worksite where the position will be located. The Notice of Filing serves to inform the employer's current workforce that the employer is filing a PERM labor certification application and provides employees with an opportunity to report complaints or provide information regarding the application.
Posting Location: The Notice of Filing must be posted in a conspicuous location at Lumos Analytics Inc.'s headquarters, 2240 Embarcadero Way, Suite 600, Palo Alto, California 94303. The posting should be placed in one or more locations visible to all employees, such as a break room, common area bulletin board, or near the Human Resources department. If Lumos has multiple conspicuous posting locations, we recommend posting in at least two such locations to demonstrate good-faith compliance.
Duration: The Notice of Filing must be posted for 10 consecutive business days. Weekends and federal holidays do not count toward the 10-business-day requirement, but the notice should remain physically posted through weekends and holidays to ensure continuous visibility.
Posting Dates:
•  Mehta & Varga Positions (Campaign 1): October 9, 2023 through approximately October 22, 2023 (10 consecutive business days).
•  Aguilar-Reyes & Tanaka Positions (Campaign 2): October 23, 2023 through approximately November 3, 2023 (10 consecutive business days).
Content Requirements: Each Notice of Filing must include the following information:
(a) The job title;
(b) The offered salary;
(c) The applicable SOC code;
(d) A description of the job duties and minimum education, experience, and other requirements;
(e) The name of the employer (Lumos Analytics Inc.);
(f) A statement that the posting is related to the filing of a PERM labor certification application with the U.S. Department of Labor;
(g) Instructions for current employees who wish to report complaints or provide information about the application, including a contact name and address (typically the address of the Certifying Officer at the DOL's designated processing center); and
(h) The dates of the posting period.
Cost: There is no cost associated with the internal posting.
Preparation and Execution: Calderwood & Harkness will provide Lumos with the Notice of Filing template for each position. A separate template memorandum containing the specific Notice of Filing drafts will be circulated under separate cover. Janelle Kwon, or her designee at Lumos, is responsible for physically posting the notice at the worksite and for signing a certification confirming the posting start and end dates, the location(s) of posting, and that the notice was posted for the full 10 consecutive business days.
Collective Bargaining Representative: If Lumos employs workers at the relevant worksite who are represented by a collective bargaining representative, the employer must also provide notice of the PERM filing to the bargaining representative, rather than (or in addition to) posting the Notice of Filing. Lumos has confirmed to Calderwood & Harkness that no collective bargaining agreement ("CBA") applies to any employees at the 2240 Embarcadero Way worksite. Accordingly, posting of the Notice of Filing at the worksite is the sole requirement, and no separate notice to a bargaining representative is necessary.
V. Three Additional Recruitment Steps — Selected from 20 C.F.R. § 656.17(e)(1)(ii) Menu
In addition to the three mandatory recruitment steps described in Section IV above, the regulations at 20 C.F.R. § 656.17(e)(1)(ii) require that employers conducting PERM recruitment for professional occupations select and complete at least three additional recruitment steps from a menu of ten enumerated options. The ten options include, among others, job fairs, employer website postings, professional organization advertisements, trade journal advertisements, campus placement services, local and ethnic media advertisements, radio and television advertisements, employee referral programs, and private employment firm engagement.
After careful consideration of the nature of the four positions at Lumos, the professional fields in which the positions are situated, the geographic area of intended employment, and the regulatory requirements, Calderwood & Harkness recommends the following three additional recruitment steps for all four positions. The same three additional steps will be used for each position across both campaigns, ensuring consistency and streamlining documentation.
A. Additional Step 1 — Professional/Trade Journal Advertisement (Online)
Regulatory Basis: 20 C.F.R. § 656.17(e)(1)(ii)(G) — Advertisement in a professional, trade, or business journal or publication, including an online journal.
Publication: FinTech Talent Weekly, an online professional journal focused on careers and talent acquisition in the financial technology sector. FinTech Talent Weekly is widely read by professionals in software engineering, data science, product management, and information security within the fintech industry, making it a natural and appropriate venue for advertising each of the four positions.
Publisher: Creston Media Group, Inc., 41 East 11th Street, 5th Floor, New York, NY 10003. Creston Media Group publishes FinTech Talent Weekly and operates its online job board.
Content: The job posting will be consistent with the content of the newspaper advertisements and will include the job title, a summary of duties, minimum education and experience requirements, employer name, worksite location, offered salary, and instructions for applying.
Duration: Each posting will remain active for a minimum of 30 days.
Posting Dates:
•  Mehta & Varga Positions (Campaign 1): To be posted during the week of October 9, 2023.
•  Aguilar-Reyes & Tanaka Positions (Campaign 2): To be posted during the week of October 23, 2023.
Estimated Cost: Approximately $950 per posting. With four positions advertised, the total estimated cost for FinTech Talent Weekly advertisements is approximately $3,800. However, if Creston Media Group offers a volume discount for multiple simultaneous postings, the actual cost may be lower.
Coordination and Documentation: Broadgate Compliance Services LLC will coordinate the placement of all FinTech Talent Weekly advertisements and will obtain written confirmation of the posting dates and URLs for each advertisement. Lumos must retain printouts or screenshots of each online posting with the posting dates clearly visible. These printouts should be captured both at the time of initial posting and at the conclusion of the posting period to document that the advertisement was live for the full minimum duration.
B. Additional Step 2 — Campus Placement Service
Regulatory Basis: 20 C.F.R. § 656.17(e)(1)(ii)(C) — Posting on a campus placement office job board or utilizing the placement services of an institution of higher education.
Institution: Baxter University Career Center. Baxter University is a regionally prominent institution with strong programs in computer science, data science, business administration, and cybersecurity, making its career center a suitable venue for advertising each of the four positions at Lumos.
Content: The job posting will include the full position details consistent with the other recruitment advertisements, including job title, duties, minimum requirements, offered salary, worksite location, and application instructions.
Posting Dates:
•  Mehta & Varga Positions (Campaign 1): To be submitted to the Baxter University Career Center during the week of October 9, 2023.
•  Aguilar-Reyes & Tanaka Positions (Campaign 2): To be submitted during the week of October 23, 2023.
Estimated Cost: $0 to $250 per posting, depending on the Baxter University Career Center's fee schedule for employer job postings. Some university career centers offer free postings for external employers, while others charge a nominal fee. The total estimated cost for all four postings ranges from $0 to $1,000.
Coordination: Tiffany Rosenthal at Calderwood & Harkness will coordinate submission of the job postings to the Baxter University Career Center. Ms. Rosenthal will ensure that the posting content is consistent with the other recruitment advertisements and that confirmation of posting is obtained from the career center.
Documentation: Lumos must retain confirmation of posting from the Baxter University Career Center for each position. Acceptable documentation includes a confirmation email from the career center, a screenshot of the posting as it appears on the career center's job board, or a letter from the career center confirming the posting dates.
C. Additional Step 3 — Employee Referral Program
Regulatory Basis: 20 C.F.R. § 656.17(e)(1)(ii)(E) — An employee referral program with incentives.
Description: Lumos will post an internal referral notice inviting current employees to refer qualified candidates for each of the four positions. The referral notice will describe the open positions and the qualifications required and will reference Lumos's existing employee referral bonus program. The use of an employee referral program as a PERM recruitment step requires that the program include some form of incentive for employees who submit successful referrals. Lumos has represented to Calderwood & Harkness that it maintains an existing referral bonus program; however, the specific details of the program — including the incentive amount, eligibility criteria, and any applicable terms or restrictions — should be confirmed by Sonia Elliston, VP, People Operations, for inclusion in the employee referral posting documentation.
Posting Locations: The employee referral notice will be disseminated through Lumos's internal communication channels, which may include the company intranet, an all-company email distribution, and/or internal messaging platforms such as Meridian Solutions or Northgate Data Systems. The referral notice should be posted in a manner that reaches all Lumos employees at the Palo Alto headquarters.
Posting Dates:
•  Mehta & Varga Positions (Campaign 1): To be posted concurrently with the internal posting (Notice of Filing), during the week of October 9, 2023.
•  Aguilar-Reyes & Tanaka Positions (Campaign 2): To be posted concurrently with the internal posting, during the week of October 23, 2023.
Cost: No additional cost is anticipated, as the employee referral program posting utilizes Lumos's existing referral infrastructure. The referral bonus itself (if a referred candidate is ultimately hired) is a normal business expense and is not considered a recruitment advertising cost for PERM purposes.
Documentation: Lumos must retain records of the employee referral program posting, including screenshots of the intranet posting, copies of the all-company email, and/or screenshots from the relevant Meridian Solutions or Teams channels showing the referral notice with the date of posting visible. These records will be included in the PERM audit file.
VI. Coordination with Broadgate Compliance Services LLC
As noted in Section I above, Broadgate Compliance Services LLC ("Broadgate") has been retained by Lumos Analytics Inc. and will coordinate directly with Calderwood & Harkness on the logistical aspects of the PERM recruitment advertising campaigns. Broadgate's principal, Gerald Fitzmorris, brings extensive experience in PERM recruitment compliance and will serve as the primary operational contact for advertising placement and documentation.
Broadgate's responsibilities in connection with the four PERM recruitment campaigns include the following:
1.  CalJOBS (SWA) Job Orders: Broadgate will prepare the content for all CalJOBS job order postings and will file them through the CalJOBS portal on behalf of Lumos, in accordance with the filing dates set forth in Section III above.
2.  Sunday Newspaper Advertisements: Broadgate will coordinate the placement of all Sunday print advertisements in The Peninsula Gazette with Noreen Caswell, the newspaper's advertising representative. Broadgate will submit advertisement copy (as reviewed and approved by Calderwood & Harkness), confirm publication dates, and obtain tearsheets and/or publisher's affidavits as proof of publication.
3.  FinTech Talent Weekly Online Advertisements: Broadgate will coordinate the placement and documentation of all FinTech Talent Weekly professional journal advertisements through Creston Media Group, Inc. Broadgate will obtain confirmation of posting dates, active URLs, and screenshots documenting the postings.
4.  Recruitment Report Templates: Broadgate will prepare standardized recruitment report templates for use by Calderwood & Harkness in preparing the final recruitment reports for each position. The recruitment report is a narrative document summarizing all recruitment steps conducted, the number and identity of applicants received, the disposition of each applicant, and the lawful job-related reasons for any rejections. The recruitment report must be signed by an authorized representative of the employer and is a critical document in the event of a DOL audit.
Review and Approval Requirement: All advertisement content — including CalJOBS job orders, newspaper advertisement copy, and FinTech Talent Weekly postings — must be reviewed and approved by Derek Okonkwo or Tiffany Rosenthal at Calderwood & Harkness prior to publication or submission. This review is essential to ensure that all advertising content complies with the requirements of 20 C.F.R. § 656.17, is consistent across all advertising platforms, and accurately reflects the minimum requirements and other details that will appear on the ETA Form 9089. Any discrepancies between the advertisements and the PERM application could result in a denial or an audit finding.
Documentation Transfer: Broadgate will provide copies of all tearsheets, publisher's affidavits, posting confirmations, proof-of-publication materials, and CalJOBS confirmation documents to Calderwood & Harkness for inclusion in the PERM audit file maintained at the firm. These materials will be organized by position and campaign and will be maintained in both electronic and physical formats.
Estimated Total Recruitment Advertising Costs: The estimated total recruitment advertising costs across all four PERM cases — encompassing newspaper advertisements, professional journal advertisements, and any campus placement fees — is approximately $12,800. This figure represents a conservative estimate; actual costs may be somewhat lower depending on volume discounts, university fee waivers, and other factors. All advertising costs will be passed through to Lumos at actual cost, in accordance with the terms of the engagement letter between Calderwood & Harkness and Lumos dated June 12, 2023. Broadgate's professional fees for recruitment advertising coordination are billed separately pursuant to its own engagement with Lumos.
VII. Recruitment Advertising Cost Estimates
The table below provides a summary of estimated recruitment advertising costs for all four PERM cases across both campaigns.
Notes on Cost Estimates:
•  The cost estimates for The Peninsula Gazette assume that both positions within each campaign are advertised simultaneously in the same newspaper edition on each Sunday, thereby sharing the cost of a single placement (or two adjacent placements) rather than requiring four separate advertisements per Sunday. Actual costs will depend on the newspaper's rate card and any applicable multi-insertion discounts.
•  The FinTech Talent Weekly cost estimate assumes a standard posting fee of $950 per individual position listing. If Creston Media Group offers a package rate for multiple simultaneous postings, the actual cost may be reduced.
•  The Baxter University Career Center cost range reflects the variability in university career center fee structures. Some career centers allow employer postings at no charge, while others assess a nominal fee. The actual cost will be determined at the time of submission.
•  The estimated total range of $7,400 to $8,400 reflects direct advertising expenditures only and does not include Broadgate's professional service fees, Calderwood & Harkness's legal fees, or other costs associated with the PERM process.
•  There is an apparent discrepancy between the $12,800 figure referenced in Section VI (which Broadgate's preliminary estimate encompasses) and the $7,400–$8,400 range presented here. The $12,800 figure represents Broadgate's all-inclusive preliminary cost estimate, which may include Broadgate's own service charges for advertisement coordination, document preparation, and compliance review, in addition to the direct advertising expenditures summarized in the table above. The direct advertising costs presented in this section represent only the amounts paid to the advertising media outlets and institutions. Actual totals will be reconciled upon completion of all recruitment campaigns.
All advertising costs will be billed at actual cost to Lumos Analytics Inc. pursuant to the terms of the engagement letter dated June 12, 2023 between Calderwood & Harkness LLP and Lumos Analytics Inc. Invoices for advertising costs will be issued upon incurrence, and supporting documentation (invoices from media outlets, receipts, etc.) will be provided with each billing statement.
VIII. Employer Obligations During Recruitment — Instructions to Lumos
This section describes Lumos's obligations and responsibilities during the recruitment period. Strict adherence to these guidelines is essential to maintain the integrity of the PERM labor market test and to ensure that the recruitment complies with DOL regulations. Failure to follow these procedures could result in a denial of the PERM application or an adverse finding in the event of a DOL audit.
A. Resume Collection and Applicant Tracking
Lumos must collect and retain all resumes, applications, and other correspondence received in response to any of the recruitment steps conducted for each of the four positions. This obligation extends to all resumes received by any means — whether submitted through CalJOBS, email, postal mail, the Lumos website, or any other channel — and regardless of whether the applicant appears to be qualified.
Janelle Kwon, HR Manager (Immigration Contact), is designated as the primary point of contact for receiving and cataloging all resumes and applications. All incoming resumes should be date-stamped (physically or electronically) upon receipt and organized by position.
All resumes received in response to the PERM recruitment should be forwarded promptly to Calderwood & Harkness (Derek Okonkwo and Tiffany Rosenthal) for review. Timely review of incoming resumes is important to identify any applicants who may meet the minimum requirements and to prepare appropriate responses.
Lumos should maintain an applicant tracking log for each position. The tracking log should record, at a minimum, the following information for each applicant:
(a) Applicant's name;
(b) Date the resume or application was received;
(c) Source of the application (e.g., CalJOBS, Peninsula Gazette ad, FinTech Talent Weekly, Baxter University, employee referral, unsolicited);
(d) Whether the applicant meets the minimum requirements on paper;
(e) Whether an interview was conducted (if applicable);
(f) Ultimate disposition (e.g., does not meet minimum education requirement; does not meet minimum experience requirement; does not possess required certification; withdrew application; offered position and declined; etc.); and
(g) Date of disposition.
Calderwood & Harkness will provide an applicant tracking log template for Lumos's use.
B. Evaluation of Applicants Against Minimum Requirements
Each applicant must be evaluated solely and exclusively against the minimum education, experience, and special requirements stated on the PERM application (ETA Form 9089) for the relevant position. These minimum requirements are set forth in Section II above for each position.
Applicants may be rejected only for lawful, job-related reasons. Examples of lawful, job-related reasons for rejection include, but are not limited to:
•  Failure to meet the minimum education requirement (e.g., applicant holds only a bachelor's degree when the position requires a master's degree);
•  Failure to meet the minimum experience requirement (e.g., applicant has only three years of post-baccalaureate experience when the position requires five years);
•  Lack of required specialized experience (e.g., applicant does not have the required two years of experience in distributed systems architecture for the Mehta position);
•  Absence of a required certification (e.g., applicant for the Tanaka position does not hold the CISSP certification);
•  Absence of a required technical skill (e.g., applicant for the Varga position does not have demonstrated proficiency in TensorFlow);
•  Applicant is not willing to work at the stated worksite location;
•  Applicant is not willing to accept the offered salary;
•  Applicant is not able to perform the duties of the position; or
•  Applicant withdrew the application or failed to respond to follow-up communications.
Applicants may not be rejected for reasons unrelated to the stated minimum requirements. Specifically, Lumos may not reject an applicant on the basis of overqualification, subjective impressions of personality or "cultural fit," aesthetic preferences, or any other criterion that is not reflected in the minimum requirements stated on the PERM application. The DOL views rejection for overqualification as a red flag suggesting that the employer is not conducting a good-faith labor market test.
If an applicant appears to meet the minimum requirements on paper — that is, the applicant's resume or application facially demonstrates the required education, experience, and special qualifications — Lumos must conduct an interview or further evaluation before making a final disposition. An applicant who meets the stated minimum requirements on paper cannot be summarily rejected without further review.
Calderwood & Harkness will provide guidance on applicant evaluation and will assist Lumos in drafting disposition letters or communications for each rejected applicant.
C. Prohibition on Tailoring and Good-Faith Requirement
The PERM recruitment must be conducted in good faith. The DOL requires that the job requirements stated in the PERM application and in the recruitment advertisements be the employer's actual minimum requirements for the position — not artificially inflated or tailored requirements designed to disqualify U.S. worker applicants or to favor the intended beneficiary.
Lumos may not tailor the recruitment process or the stated job requirements to favor any particular applicant, including the intended beneficiaries (Mehta, Varga, Aguilar-Reyes, or Tanaka). The job requirements as stated must genuinely reflect what Lumos would require of any applicant — including a U.S. worker — who applies for the position.
Additionally, the offered salary must be at least equal to the prevailing wage, as confirmed for all four positions. If a qualified U.S. worker is identified and hired for any of the four positions through the PERM recruitment process, that U.S. worker must be paid at least the offered salary stated on the PERM application. The employer may not offer a lower salary to a U.S. worker than the salary stated on the PERM application.
D. Interview Protocols
If any applicant meets the minimum requirements stated for a position and expresses willingness to accept the position at the stated salary and worksite location, Lumos should schedule an interview with that applicant. The interview should be conducted by the hiring manager or another appropriate Lumos representative with the authority and expertise to evaluate the applicant's qualifications.
Detailed interview notes should be documented and retained for each interviewed applicant. Calderwood & Harkness can provide interview assessment templates for Lumos's use. Interview notes should document the date and format of the interview (e.g., in-person, telephone, video conference), the interviewer's name and title, the questions asked, the applicant's responses, and the interviewer's assessment of the applicant's qualifications relative to the minimum requirements.
If an applicant who appears qualified on paper is rejected after an interview, the reasons for rejection must be documented in writing. The reasons must be lawful, job-related, and directly tied to the minimum requirements stated on the PERM application. For example, an applicant who claims five years of experience on a resume but, upon interview questioning, reveals that only three of those years involved the required specialized area would be a lawful rejection. Conversely, an applicant who demonstrably meets all stated requirements and is willing to accept the position at the offered salary and worksite location cannot be lawfully rejected.
If a qualified U.S. worker applicant is identified who is able, willing, qualified, and available for a position, Calderwood & Harkness should be contacted immediately. The identification of a qualified U.S. worker for a position may require that the PERM application for that position not be filed, as the labor market test will have demonstrated the availability of U.S. workers.
E. No Contact with Beneficiaries Regarding Recruitment
The beneficiaries — Rajan Mehta, Lina Varga, Tomás Aguilar-Reyes, and Yumiko Tanaka — should not be involved in any aspect of evaluating applicants for their own respective positions. Having a beneficiary participate in the review or evaluation of applicants who are competing for the beneficiary's own position creates a patent conflict of interest and could undermine the integrity of the PERM labor market test.
Specifically, the beneficiaries should not:
•  Review resumes or applications submitted for their own positions;
•  Participate in interviews of applicants for their own positions;
•  Provide input on the disposition of applicants for their own positions; or
•  Be informed of the specific identities or qualifications of applicants who apply for their positions.
If any of the beneficiaries hold supervisory or management roles that would ordinarily involve them in hiring decisions for their respective departments, those hiring responsibilities should be delegated to another Lumos manager or executive for the duration of the PERM recruitment process. Calderwood & Harkness can advise on appropriate delegation arrangements if needed.
IX. 30-Day Quiet Period and Recruitment Completion
After the conclusion of the last active recruitment step in each campaign, a 30-day "quiet period" must be observed. During the quiet period, Lumos must continue to accept and evaluate any applications or resumes that are received, but no new recruitment activity should be initiated. The purpose of the quiet period is to provide a reasonable window for U.S. workers to learn of the job openings and submit their applications in response to the recruitment that has already been conducted.
The quiet period is measured from the conclusion of the last recruitment step in the campaign. For practical purposes, the "last recruitment step" is typically the date on which the last advertisement or posting expires or is removed. In the present campaigns, the last active recruitment step will generally be the expiration of the 30-day CalJOBS job order or the 30-day FinTech Talent Weekly posting, whichever occurs later.
Campaign 1 (Mehta & Varga): The 30-day quiet period is projected to conclude on approximately November 20, 2023. After this date, Calderwood & Harkness will prepare the recruitment report for each position and the PERM applications may be filed.
Campaign 2 (Aguilar-Reyes & Tanaka): The 30-day quiet period is projected to conclude on approximately December 4, 2023. After this date, Calderwood & Harkness will prepare the recruitment report for each position and the PERM applications may be filed.
Upon the conclusion of the quiet period, Calderwood & Harkness will prepare a recruitment report for each of the four positions. The recruitment report is a narrative document summarizing the recruitment steps conducted, the number and identity of applicants received through each recruitment channel, the evaluation of each applicant against the minimum requirements, the disposition of each applicant, and the lawful, job-related reasons for any rejections. The recruitment report must be signed by an authorized representative of Lumos Analytics Inc. (typically Janelle Kwon or Sonia Elliston) and will be included in the PERM audit file.
Following completion of the recruitment reports, the PERM applications (ETA Form 9089) may be filed with the DOL at any time after the quiet period ends. However, the PERM application must be filed no later than 180 days after the earliest recruitment step in the campaign. For Campaign 1, the 180-day deadline is approximately April 6, 2024. For Campaign 2, the 180-day deadline is approximately April 20, 2024. If the PERM application is not filed within 180 days, the recruitment will be considered stale and will need to be repeated.
Calderwood & Harkness's target filing dates are as follows:
•  Mehta & Varga Positions: Mid-to-late December 2023, assuming the quiet period concludes on November 20, 2023 and the recruitment reports are completed promptly thereafter.
•  Aguilar-Reyes & Tanaka Positions: Early January 2024, assuming the quiet period concludes on December 4, 2023 and the recruitment reports are completed promptly thereafter.
X. Documentation and Record Retention
Lumos Analytics Inc. is required under 20 C.F.R. § 656.10(f) to retain all recruitment documentation for a minimum of five (5) years from the date the PERM application is filed or from the date of the recruitment activity, whichever is later. This retention requirement is critically important: in the event that the DOL selects any of the four PERM applications for audit, Lumos must be able to produce the complete recruitment file within 30 days of the audit notification. Failure to produce adequate documentation in response to an audit can result in denial of the PERM application.
The following categories of documentation must be collected and retained for each of the four positions:
1.  Copies of All Advertisements: Including tearsheets from The Peninsula Gazette, publisher's affidavits confirming dates and content of publication, and printouts or screenshots of the FinTech Talent Weekly online postings with dates visible.
2.  CalJOBS Job Order Confirmations: Confirmation pages or printouts from the CalJOBS system documenting the filing date, content, and duration of each SWA job order.
3.  Internal Posting Certifications: Certifications signed by Janelle Kwon (or her designee) confirming the start and end dates of the internal Notice of Filing, the physical location(s) where the notice was posted, and that the notice remained posted for the required 10 consecutive business days.
4.  Baxter University Career Center Posting Confirmations: Confirmation emails, screenshots, or letters from the Baxter University Career Center documenting the posting dates and content for each position.
5.  Employee Referral Program Posting Evidence: Screenshots of the internal referral notice as posted on the company intranet, copies of the all-company email distribution, and/or screenshots from Meridian Solutions or Teams channels showing the referral posting with dates visible.
6.  All Resumes Received: Copies of every resume and application received in response to the recruitment, regardless of whether the applicant was qualified or unqualified, organized by position and source.
7.  Applicant Tracking Logs: Completed tracking logs for each position documenting each applicant's name, date of receipt, source, qualifications assessment, and disposition.
8.  Interview Notes and Disposition Correspondence: Notes from any interviews conducted, disposition letters or emails sent to rejected applicants, and documentation of the lawful, job-related reasons for each rejection.
9.  Prevailing Wage Determinations: Original prevailing wage determination letters from the NPWC for each position.
10.  Recruitment Reports: Signed recruitment report narratives for each position.
11.  ETA Form 9089 Applications and Supporting Documentation: Copies of the filed ETA Form 9089 applications and all supporting documentation, including any amendments or corrections.
Calderwood & Harkness will maintain a parallel set of recruitment documentation in the firm's matter file (Matter No. 1008-00004). However, Lumos's independent obligation to retain these records cannot be delegated to outside counsel. Lumos should designate a secure physical and/or electronic storage location for PERM recruitment files and should ensure that the files are accessible for at least five years following the filing of each PERM application.
XI. Timeline Summary Table
The following table consolidates all key dates for both recruitment campaigns, presented side by side for easy reference.
Note: All dates are approximate and subject to adjustment based on actual posting durations, publication schedules, and the receipt and evaluation of applicati