OPTIWAVE SEMICONDUCTOR CORP.
Annual Immigration Compliance Training
Outline & Presentation Materials
Prepared by: Dr. Lena Marchetti, Of Counsel Calderwood & Harkness LLP
With assistance from: Megan Chu, Lead Associate Derek Okonkwo, Working Associate Tanya Benavides, Paralegal
Prepared for: Optiwave Semiconductor Corp. Management, Human Resources, and Hiring Managers
June 2025
Engagement Reference: SC-OWS-2025-0520-IMM
Calderwood & Harkness LLP 555 South Grand Avenue, 38th Floor, Los Angeles, CA 90071 101 California Street, 27th Floor, San Francisco, CA 94111
CONFIDENTIALITY NOTICE: This document is protected by the attorney-client privilege and the work product doctrine. It has been prepared by Calderwood & Harkness LLP solely for the internal compliance training purposes of Optiwave Semiconductor Corp. and its authorized personnel. This document is not intended for distribution to, or reliance by, any third party. Any unauthorized disclosure, reproduction, or distribution of this document or its contents is strictly prohibited. If you have received this document in error, please notify Calderwood & Harkness LLP immediately.
Intended Audience:
Arvind Velathan, Chief Executive Officer Patricia Langford, General Counsel Dr. Yun-Sheng Chen, Vice President of Engineering Samantha Kowalski, Director of Human Resources Rajesh Anand, Immigration Program Manager All department heads and hiring managers across San Jose HQ, Austin Design Center, and Portland Test Facility
Estimated Annual Cost for Compliance Training and Audit Services: $35,000–$45,000, billed hourly
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SECTION 1: INTRODUCTION & TRAINING OBJECTIVES
1.1 Purpose of the Training Program
The purpose of this Annual Immigration Compliance Training Program is to establish and maintain a company-wide understanding of the immigration compliance obligations applicable to all personnel at Optiwave Semiconductor Corp. ("OWS" or the "Company") who are involved in hiring, supervising, or managing foreign national employees. Immigration compliance is a shared responsibility that extends beyond the Human Resources department and outside immigration counsel. Every manager, supervisor, and department head who interacts with the Company's visa-sponsored workforce plays a critical role in ensuring that OWS meets its legal obligations and avoids costly enforcement actions.
This training program is designed to achieve the following core objectives:
1. Comprehensive Compliance Understanding. Ensure that all participants understand the full scope of OWS's compliance obligations under applicable federal immigration laws and regulations, including but not limited to the Immigration and Nationality Act ("INA"), the regulations promulgated by the Department of Labor ("DOL") governing the Labor Condition Application ("LCA") process, and the requirements established by United States Citizenship and Immigration Services ("USCIS") for the filing and maintenance of nonimmigrant visa petitions.
2. Enforcement Risk Mitigation. Mitigate the risk of government enforcement actions, civil fines, debarment from immigration programs, and criminal penalties arising from noncompliance. The federal agencies charged with enforcement of immigration laws — including USCIS, the DOL's Wage and Hour Division ("WHD"), U.S. Immigration and Customs Enforcement ("ICE"), and the Department of Justice's Immigrant and Employee Rights Section ("IER") — have significantly increased their audit and inspection activity in the technology sector in recent years. OWS must be prepared to respond to any government inquiry or inspection at any time.
3. Active Visa Program Support. Support OWS's ongoing visa sponsorship program, which currently encompasses eighteen (18) active visa holders — fourteen (14) H-1B workers, three (3) O-1A visa holders, and one (1) O-1B visa holder — as well as a pipeline of twelve (12) prospective candidates for fiscal year 2026. The scale and complexity of this program demand a structured, disciplined approach to compliance across all three of OWS's worksites.
4. Operational Consistency. Establish uniform procedures and protocols that apply consistently across all OWS worksites and departments, ensuring that immigration compliance obligations are understood and applied in the same manner whether the relevant activity takes place at the San Jose headquarters, the Austin Design Center, the Portland Test Facility, or in the context of a remote work arrangement.
Compliance is not optional, and the consequences of noncompliance are severe. As detailed throughout this training, violations can result in monetary penalties in the thousands or tens of thousands of dollars per incident, debarment from future visa sponsorship, back-wage liability, and — in the most serious cases — criminal prosecution. This training is intended to ensure that OWS never faces such consequences.
1.2 Company Overview — Immigration Program Context
Optiwave Semiconductor Corp. is a Delaware corporation, qualified to do business in the states of California, Texas, and Oregon, with its principal place of business at 4820 Veltrano Parkway, Suite 300, San Jose, California 95134. The Company operates in the semiconductor and photonic integrated circuit ("PIC") design and fabrication industry, with a focus on developing advanced photonic components for data center interconnects. The Company's North American Industry Classification System ("NAICS") code is 334413 (Semiconductor and Related Device Manufacturing).
OWS employs approximately 340 employees across three physical worksites and a remote workforce, distributed as follows:
The Company's Employer Identification Number (EIN/FEIN) is 82-4931076. OWS is enrolled in the E-Verify program under Company ID 1487623.
OWS's majority shareholder is Crestline Ventures Fund IV, LP, which holds approximately 62.4% of the Company's equity, acquired on September 15, 2022. The ownership structure and corporate organization of OWS have remained stable since the Crestline acquisition, which is relevant to the Company's immigration filings because changes in corporate ownership or structure can trigger USCIS filing requirements.
H-1B Dependent Employer Status. OWS is classified as a non-dependent H-1B employer. The Company currently employs fourteen (14) H-1B workers out of a total workforce of approximately 340 employees, yielding an H-1B dependency ratio of approximately 4.12%. This is well below the statutory threshold of 15% that would classify the Company as an H-1B dependent employer under INA § 212(n)(3). Non-dependent employer status relieves OWS of certain additional attestation obligations that would otherwise apply, including the requirements to recruit U.S. workers before filing H-1B petitions and to attest that no U.S. workers have been or will be displaced. Notwithstanding this non-dependent status, OWS is committed to maintaining the highest standards of compliance in all respects.
1.3 Intended Audience & Attendance Requirements
This training is mandatory for the following personnel:
• All hiring managers across all OWS departments and worksites
• All members of the Human Resources team
• All department heads
• Site managers at each of the three OWS worksites (San Jose, Austin, Portland)
• Executive leadership, including the CEO, General Counsel, VP of Engineering, and other C-suite or senior vice president-level officers
In addition, this training is strongly recommended for:
• Team leads and project managers who supervise or interact with employees holding H-1B, O-1, or other nonimmigrant visa classifications
• Administrative and operations personnel who may handle immigration-related documentation or inquiries
This training program is to be delivered annually, with the initial session scheduled for July 2025. Supplemental training sessions will be conducted within thirty (30) days of any material regulatory changes, new USCIS policy guidance, or significant developments in the Company's immigration program that warrant updated instruction. The training cadence reflects best practices in the technology industry and the expectations of federal enforcement agencies, which increasingly look for evidence of regular, documented compliance training when evaluating an employer's good-faith compliance efforts.
1.4 Training Agenda Overview
The training program is organized into ten instructional modules, each addressing a discrete area of immigration compliance. The modules are structured to proceed from foundational concepts to increasingly specific compliance topics, culminating in a question-and-answer session designed to address issues unique to OWS's business operations and workforce. The modules are as follows:
Module 1: H-1B Program Overview
Module 2: Employer Obligations Under the Labor Condition Application (LCA)
Module 3: Anti-Discrimination Provisions (INA § 274B)
Module 4: Form I-9 Compliance
Module 5: E-Verify Requirements
Module 6: FDNS Site Visit Protocols
Module 7: Worksite Change Notification Procedures
Module 8: Termination Obligations for H-1B Workers
Module 9: Export Control Awareness (Deemed Exports)
Module 10: Q&A and Resources
Each module is described in detail in the sections that follow. Participants are encouraged to review all materials in advance of the training session and to prepare questions for the Q&A segment.
SECTION 2: MODULE 1 — H-1B PROGRAM OVERVIEW
2.1 What Is the H-1B visa Classification?
The H-1B visa classification is a nonimmigrant visa category established under Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act. It permits a U.S. employer to temporarily employ a foreign national in a "specialty occupation" — that is, a position that normally requires, at minimum, a bachelor's degree or its equivalent in a specific specialty field directly related to the duties of the position.
The concept of a "specialty occupation" is defined by four regulatory criteria set forth at 8 CFR § 214.2(h)(4)(ii). To qualify, the petitioning employer must demonstrate that the position meets at least one of the following criteria:
1. A bachelor's or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position.
2. The degree requirement is common to the industry in parallel positions among similar organizations, or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree in the specific specialty.
3. The employer normally requires a degree or its equivalent for the position.
4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree in a specific specialty.
For OWS, the vast majority of H-1B positions are engineering and technical roles requiring at least a bachelor's degree in electrical engineering, computer engineering, photonics, physics, computer science, or a closely related field. These positions comfortably meet the specialty occupation requirements.
The initial period of authorized stay for an H-1B worker is up to three (3) years. Extensions of stay may be granted in increments of up to three (3) years, for a maximum aggregate period of six (6) years. However, important exceptions to the six-year limitation exist under Section 106(a) and 106(b) of the American Competitiveness in the Twenty-First Century Act ("AC21"), which permit extensions beyond six years for foreign nationals who are the beneficiaries of certain approved or pending immigrant visa petitions or labor certification applications. Several OWS employees currently benefit from or may become eligible for these provisions, as discussed in Module 10 of this training.
2.2 O-1 Visa Classification Overview
In addition to the H-1B classification, OWS utilizes the O-1 visa classification for certain employees who possess extraordinary ability or achievement. The O-1 classification is divided into two subcategories:
O-1A: Extraordinary Ability in Sciences, Education, Business, or Athletics. An O-1A petition requires the petitioner to demonstrate that the beneficiary has risen to the very top of their field by providing evidence satisfying at least three of the eight evidentiary criteria set forth at 8 CFR § 214.2(o)(3)(iii). These criteria include, among others, receipt of nationally or internationally recognized prizes or awards, published material about the beneficiary in major media, original contributions of major significance to the field, and a high salary or remuneration relative to others in the field.
O-1B: Extraordinary Achievement in the Arts. An O-1B petition applies to individuals in the arts, including the motion picture and television industry, and has been increasingly utilized in the technology sector for individuals with extraordinary achievement in fields such as industrial design and user experience design.
OWS currently sponsors four (4) O-1 visa holders:
• Dr. Seo-Yeon Cho (O-1A) — Principal Photonics Researcher
• Dr. Vikram Iyer (O-1A) — Chief Architect, PIC Platform
• Dr. Amara Osei-Bonsu (O-1A) — Lead Quantum Photonics Scientist
• Luciana Moretti (O-1B) — Senior UX/Industrial Designer
Unlike the H-1B classification, there is no annual numerical cap on O-1 petitions, which provides significant strategic flexibility. However, each O-1 petition requires an advisory opinion letter (also known as a "peer group opinion letter") from a peer group, labor organization, or management organization with expertise in the beneficiary's area of ability, as required by 8 CFR § 214.2(o)(5)(ii). Calderwood & Harkness coordinates the preparation and procurement of these advisory letters as part of the O-1 petition filing process.
2.3 OWS's Current Visa Portfolio Snapshot
The Company's current nonimmigrant visa portfolio comprises eighteen (18) active sponsored employees. The breakdown of the H-1B portfolio is as follows:
• 14 H-1B holders total:
• 6 initial petitions (new H-1B classifications for employees who had not previously held H-1B status at OWS)
• 5 extensions (H-1B employees whose initial three-year period has been extended)
• 3 transfers (employees who were previously employed by another employer in H-1B status and whose H-1B classification was transferred to OWS as the new petitioning employer)
The four (4) O-1 holders are identified in Section 2.2 above.
FY2026 Pipeline. OWS has identified twelve (12) prospective visa candidates for fiscal year 2026:
• 9 H-1B cap-subject candidates (new H-1B petitions subject to the annual numerical cap)
• 2 H-1B cap-exempt transfers (employees transferring from prior H-1B employers with current or previously counted cap status, or transferring from cap-exempt institutions such as Northfield University Research Lab or Cascade Institute of Technology)
• 1 O-1A candidate
OWS submitted FY2026 H-1B cap registrations on March 7, 2025, paying the $215 registration fee per beneficiary. Of the nine (9) cap-subject registrants, five (5) were selected in the initial lottery on April 1, 2025. The remaining four (4) unselected registrants may be selected in subsequent lottery rounds if USCIS determines that additional selections are necessary to reach the annual cap.
The Standard Occupational Classification ("SOC") codes used across OWS's visa filings reflect the range of technical positions the Company sponsors:
• SOC 17-2072: Electronics Engineers, Except Computer
• SOC 15-1252: Software Developers
• SOC 17-2199.08 / 17-2199: Photonics Engineers / Engineers, All Other
• SOC 15-1211: Computer Systems Analysts
2.4 Key Concepts: Annual Cap, Registration, and Lottery Process
The H-1B visa classification is subject to an annual numerical cap established by Congress. The current cap permits a maximum of 65,000 new H-1B visas per fiscal year under the regular cap, plus an additional 20,000 visas for beneficiaries who hold a master's degree or higher from a U.S. institution of higher education (the "U.S. advanced degree exemption"). Because demand for H-1B visas consistently exceeds the available supply, USCIS conducts a registration and lottery process to determine which petitions may be filed.
The registration process takes place annually, typically during a registration period in March. OWS submitted its FY2026 registrations on March 7, 2025, paying the required $215 per beneficiary registration fee for each of the Company's nine cap-subject candidates. USCIS then conducts a random selection (lottery) from among all timely registrations. Registrants who are selected receive a notification authorizing the petitioning employer to file a complete H-1B cap petition on behalf of the selected beneficiary.
For the FY2026 lottery cycle, five (5) of OWS's nine (9) cap-subject registrants were selected on April 1, 2025. The filing deadline for these selected candidates is ninety (90) days from the selection notification date — that is, June 30, 2025. Calderwood & Harkness is currently preparing these petitions for timely filing.
Certain categories of H-1B petitions are cap-exempt and may be filed at any time without regard to the annual numerical cap:
• Transfers from prior H-1B employers where the beneficiary has previously been counted against the cap and is maintaining valid H-1B status
• Transfers from cap-exempt entities, such as institutions of higher education, nonprofit entities affiliated with institutions of higher education, nonprofit research organizations, and governmental research organizations
OWS has two pending cap-exempt transfer candidates: Dr. Kenji Watanabe (transferring from Northfield University Research Lab) and Dr. Ingrid Halvorsen (transferring from Cascade Institute of Technology). These petitions may be filed without lottery selection and are currently targeted for filing in August and September 2025, respectively.
2.5 Government Filing Fees (Paid by OWS)
The cost of filing H-1B and O-1 petitions includes multiple government-imposed fees. It is important for OWS management to understand the magnitude of these costs. All filing fees are paid by the employer — OWS may not pass these costs on to the beneficiary employee.
H-1B Cap Petition — Total Government Fees: $5,650
The ACWIA (American Competitiveness and Workforce Improvement Act) training fee is $750 for employers with twenty-six (26) or more full-time equivalent employees. Because OWS has approximately 340 employees, the $750 rate applies. Employers with twenty-five (25) or fewer full-time equivalent employees pay the higher fee of $1,500. This distinction is sometimes counterintuitive but reflects a congressional determination that larger employers derive greater benefit from the H-1B program and should therefore pay a lower per-petition training fee.
O-1 Petition — Total Government Fees: $3,585
OWS files all H-1B and O-1 petitions with Premium Processing (Form I-907), which guarantees an initial adjudication within fifteen (15) business days of USCIS receipt. While Premium Processing adds a significant cost per petition, the expedited processing timeline is essential for OWS's business needs, as standard processing times can extend to six months or longer.
2.6 Key Takeaways for Managers
To conclude Module 1, the following points represent the most important takeaways for hiring managers and supervisors:
1. Centralized Authority. Only Calderwood & Harkness LLP (outside immigration counsel) and OWS's Immigration Program Manager (Rajesh Anand) are authorized to initiate, manage, or make representations regarding visa petitions on behalf of the Company. No other manager, HR team member, or department head should independently communicate with USCIS, DOL, or any immigration agency regarding visa matters.
2. Early Notification. Hiring managers should notify Rajesh Anand as early as possible — ideally at the candidate identification stage — when considering a candidate who may require visa sponsorship. Early engagement allows Calderwood & Harkness to assess the candidate's eligibility, develop a case strategy, and ensure timely filing. Delays in notification can result in missed filing deadlines, complications with the H-1B lottery cycle, or the inability to sponsor a preferred candidate.
3. No Guarantees. Under no circumstances should any OWS representative promise or imply to a candidate or employee that a visa petition "will" be approved. All visa petitions are subject to USCIS adjudication, and approval is never guaranteed. Making premature assurances to candidates can create legal liability for the Company and unrealistic expectations for the individual.
SECTION 3: MODULE 2 — EMPLOYER OBLIGATIONS UNDER THE LABOR CONDITION APPLICATION (LCA)
3.1 What Is an LCA?
The Labor Condition Application ("LCA") is a required prerequisite to the filing of any H-1B petition with USCIS. Before an employer may file a Form I-129, Petition for Nonimmigrant Worker, to classify a beneficiary in H-1B status, the employer must first obtain a certified LCA from the Department of Labor.
The LCA is filed electronically with the DOL via the Foreign Labor Application Gateway ("FLAG") system and is certified by the DOL's Office of Foreign Labor Certification ("OFLC"). The LCA is not a mere formality — it is a substantive document in which the employer makes four binding attestations:
1. Wages. The employer will pay the H-1B worker a wage that is at least equal to the higher of the actual wage (the wage paid to other employees with similar experience and qualifications for the specific employment in question) or the prevailing wage for the occupational classification in the area of intended employment.
2. Working Conditions. The employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
3. No Strike or Lockout. There is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment at the time the LCA is filed.
4. Notice. The employer has provided notice of the LCA filing to workers in the occupational classification and area of intended employment, either through posting or through notification to the bargaining representative, if applicable.
The LCA program is enforced by the DOL's Wage and Hour Division ("WHD"), which has the authority to investigate employer compliance, impose civil monetary penalties, order back-wage payments, and recommend debarment from immigration programs. LCA compliance is among the most heavily scrutinized aspects of the H-1B program, and the consequences of noncompliance can be severe.
3.2 Wage Obligations
The wage obligation is the centerpiece of LCA compliance and represents one of the most significant areas of risk for H-1B employers. OWS must pay each H-1B worker the higher of (a) the actual wage paid to similarly situated employees at the worksite or (b) the prevailing wage for the occupation and worksite area.
Prevailing Wage Data. Prevailing wages are determined based on data published by the DOL through the Online Wage Library, which draws on the Bureau of Labor Statistics' Occupational Employment and Wage Statistics ("OES") survey. Prevailing wages vary by occupation (SOC code), geographic area (MSA), and wage level (Levels I through IV, corresponding to entry-level through fully competent).
The following table sets forth the current prevailing wages for the occupational classifications and wage levels most commonly used in OWS's H-1B filings within the San Jose-Sunnyvale-Santa Clara, CA MSA:
OWS Actual Offered Wages. OWS's actual offered wages for H-1B positions exceed the applicable prevailing wages at all levels:
OWS's competitive compensation structure provides a significant margin above prevailing wage requirements, which substantially reduces the Company's wage-related compliance risk. However, managers must understand that the wage obligation is continuous — OWS may not bench, furlough without pay, or reduce wages below the LCA-stated wage for an H-1B worker at any point during the validity period of the LCA. If an H-1B worker is placed in a non-productive status through no fault of their own (e.g., waiting for a project assignment, a gap between projects, or a temporary reduction in workload), the employer must continue paying the LCA-stated wage. This obligation is discussed in greater detail in Module 8 of this training.
3.3 Electronic Posting / Notice Requirements
OWS satisfies the LCA notice requirement through electronic posting on the Company's intranet, as permitted by 20 CFR § 655.734. The electronic posting must remain accessible for a minimum of ten (10) consecutive business days. The posting must be placed at or near the actual worksite(s) where the H-1B worker will be employed, and must include all required LCA content:
• Job title
• Standard Occupational Classification (SOC) code
• Wage or wage range offered to the H-1B worker
• Address of the worksite where the H-1B worker will be employed
• Period of employment
The timing of the posting is critical: the posting must be placed on the Company's intranet on or within thirty (30) days before the date the LCA is filed with DOL. Calderwood & Harkness coordinates with Rajesh Anand to ensure that postings are initiated in compliance with this timeline for every LCA filing.
Managers should be aware that the notice requirement serves an important protective function: it provides OWS's existing workforce with transparency regarding the Company's H-1B hiring activity and allows employees to raise concerns if they believe the terms of the LCA are inaccurate or that their working conditions may be adversely affected. OWS takes this obligation seriously and ensures that all electronic postings are complete, accurate, and timely.
3.4 Public Access File (PAF) Requirements
In addition to the notice requirement, OWS is required to maintain a Public Access File ("PAF") at each worksite where H-1B workers are employed. OWS currently maintains PAFs at all three physical worksites: San Jose, Austin, and Portland. The PAF must contain the following documents:
1. Certified LCA. A copy of each certified LCA (Form ETA 9035/9035E) for H-1B workers employed at the worksite.
2. Prevailing Wage Documentation. Documentation of the prevailing wage source and determination used for each LCA filing, including the DOL Online Wage Library data or, if applicable, an independent prevailing wage survey.
3. Actual Wage Memorandum. A memorandum or other documentation describing the methodology used by OWS to determine the actual wage paid to similarly situated employees. This memorandum establishes that OWS's offered wage meets or exceeds the actual wage for the position.
4. Summary of Benefits. A summary of the benefits offered to H-1B workers and to U.S. workers in comparable positions, demonstrating that benefits are offered on the same basis.
5. Notice / Posting Documentation. Copies of the electronic posting with dates demonstrating that the ten-business-day posting requirement was satisfied, including the date the posting began and the date it was removed.
The PAF must be made available for public inspection within one (1) business day of a request. Any member of the public — including competing employers, labor organizations, journalists, or government investigators — may request to inspect the PAF, and OWS must comply promptly. The PAF does not need to be maintained online, but it must be physically accessible at the relevant worksite.
Retention. PAF documents must be retained for one (1) year beyond the end of the LCA validity period or the date on which the LCA is withdrawn, whichever occurs first.
Responsibility. Tanya Benavides, paralegal at Calderwood & Harkness, coordinates the compilation and updating of PAF contents. Rajesh Anand maintains on-site copies of the PAF at each OWS worksite and is responsible for producing the PAF upon request. Any request for PAF inspection should be directed to Rajesh Anand immediately and should be treated as a priority matter.
3.5 LCA Amendments and New LCA Filings
The LCA is worksite-specific and occupation-specific. A new LCA filing is required whenever there is a material change in the terms of the H-1B worker's employment, including:
• A change in worksite to a location outside the Metropolitan Statistical Area ("MSA") listed on the current LCA
• A change in the SOC code (i.e., a change in the occupational classification)
• A change in wages to a level below the wage stated on the current LCA
Pursuant to the precedent decision in Matter of Simeio Solutions, LLC, Adopted Decision 2014-00 (AAO 2015), an amended H-1B petition (Form I-129) is required whenever a new LCA is needed due to a worksite change. The Simeio Solutions decision clarified that USCIS considers a change in worksite that requires a new LCA to be a material change in the terms and conditions of employment, necessitating an amended petition. This requirement applies even if the H-1B worker's job title, duties, and wage remain the same — the change in worksite alone is sufficient to trigger the amendment obligation.
Short-Term Placement Exception. The regulations at 20 CFR § 655.735 provide a limited exception for short-term placements at worksites not covered by a current LCA. Under this exception, no new LCA is required if the H-1B worker is placed at a non-LCA worksite for a period not exceeding thirty (30) workdays within any sixty (60)-day period, or, under certain conditions, sixty (60) workdays within any one-hundred-twenty (120)-day period.
This exception is directly relevant to OWS's operations. Some OWS engineers travel to customer data center locations for installation, commissioning, and testing of photonic integrated circuit products. These customer-site placements are typically short-term in nature and may fall within the short-term placement exception, provided that the conditions specified in the regulation are met. Managers should consult with Rajesh Anand and Calderwood & Harkness before sending any H-1B worker to a customer site or other non-LCA worksite to confirm that the short-term placement exception applies.
3.6 Penalties for LCA Violations
The penalties for LCA violations are significant and can have lasting consequences for the Company's immigration program:
• Civil Monetary Penalties. The DOL may impose civil monetary penalties ranging from $1,000 to $35,000 per violation, depending on the nature and severity of the violation and whether it was willful. Even a single unintentional violation can result in a $1,000 penalty per affected worker.
• Back Wage Liability. If the DOL determines that OWS failed to pay the required wage, the Company may be ordered to pay back wages to the affected H-1B worker, potentially covering the entire period of underpayment.
• Debarment. For willful violations, the DOL may recommend debarment from all immigration programs, including the H-1B and PERM programs, for a period of at least two years. Debarment would effectively prevent OWS from sponsoring any foreign national employee during the debarment period — a potentially devastating consequence for the Company's ability to attract and retain top engineering talent.
• WHD Investigation Authority. The Wage and Hour Division has broad authority to investigate LCA compliance. Investigations may be triggered by employee complaints, referrals from other agencies, or random audits. Once an investigation is initiated, the WHD may examine all LCA filings, wage records, PAF contents, and related documentation.
The risk of LCA enforcement actions underscores the importance of meticulous compliance with all LCA requirements. OWS's current compliance posture — including competitive wages that exceed prevailing wage levels, timely electronic postings, and well-maintained PAFs — positions the Company favorably, but continued vigilance is essential.
SECTION 4: MODULE 3 — ANTI-DISCRIMINATION PROVISIONS (INA § 274B)
4.1 Overview of INA § 274B
Section 274B of the Immigration and Nationality Act establishes prohibitions against citizenship status discrimination and national origin discrimination in the context of hiring, firing, and recruitment. These anti-discrimination provisions are enforced by the Department of Justice, Immigrant and Employee Rights Section ("IER"), which investigates complaints, conducts compliance reviews, and brings enforcement actions before the Office of the Chief Administrative Hearing Officer ("OCAHO").
The scope of INA § 274B is distinct from, and in some respects broader than, Title VII of the Civil Rights Act of 1964. The citizenship status discrimination provisions of INA § 274B apply to employers with four (4) or more employees. The national origin discrimination provisions apply to employers with four (4) to fourteen (14) employees; employers with fifteen (15) or more employees are covered by Title VII's national origin discrimination provisions, which are enforced by the Equal Employment Opportunity Commission ("EEOC"). Because OWS has approximately 340 employees, the Company is subject to both INA § 274B (for citizenship status discrimination) and Title VII (for national origin discrimination).
Understanding these anti-discrimination obligations is critical for all OWS personnel involved in hiring decisions. The technology industry — and the semiconductor sector in particular — employs a highly diverse, international workforce. This diversity is one of OWS's greatest strengths, but it also creates an environment in which well-intentioned but uninformed managers may inadvertently engage in discriminatory conduct.
4.2 Prohibited Conduct
The following categories of conduct are prohibited under INA § 274B:
1. Citizenship Status Discrimination. Refusing to hire, or firing, an individual based on their citizenship or immigration status, where the individual is a protected person authorized to work in the United States. Protected persons include U.S. citizens, U.S. nationals, lawful permanent residents, asylees, and refugees. This means, for example, that an employer may not prefer an H-1B worker over a U.S. citizen or permanent resident for a position based on their immigration status, nor may the employer refuse to hire a lawful permanent resident because of a preference for hiring U.S. citizens.
2. Document Abuse / Over-Documentation. Requesting more or different documents than are required for Form I-9 employment verification. This form of discrimination, often called "document abuse" or "over-documentation," occurs when an employer demands that an employee produce specific documents — such as a green card or work permit — rather than allowing the employee to choose which acceptable documents to present from the I-9 lists. Document abuse is one of the most common forms of INA § 274B violation and is frequently committed by well-meaning but undertrained hiring managers and HR personnel.
3. Rejecting Valid Documents. Refusing to accept documents that reasonably appear to be genuine and to relate to the individual presenting them. An employer may not reject a document simply because it is unfamiliar or because the employer prefers a different type of document.
4. Preferential Treatment Based on Status. Preferring H-1B or other visa holders over U.S. workers, or vice versa, based on immigration status rather than qualifications, experience, or other legitimate job-related criteria.
5. Retaliation. Taking adverse action against any individual who exercises their rights under INA § 274B, files a complaint with the IER, or participates in an investigation or proceeding.
4.3 Practical Guidance for Hiring Managers
To ensure compliance with INA § 274B, all OWS hiring managers must adhere to the following guidelines:
Pre-Offer Inquiries. Before extending an offer of employment, a hiring manager may ask a candidate two specific questions related to work authorization:
• "Are you authorized to work in the United States?"
• "Will you now or in the future require sponsorship for an employment visa?"
A hiring manager may not ask a candidate about their citizenship, nationality, country of birth, visa type, or immigration status. Questions such as "Are you a U.S. citizen?", "Where are you from originally?", or "What kind of visa do you have?" are impermissible before an offer is made and may give rise to a discrimination complaint even if no discriminatory intent exists.
Job Postings. Job postings and advertisements must not specify a preference for or against candidates based on citizenship or visa status. Phrases such as "U.S. citizens only," "no visa sponsorship available," or "H-1B preferred" must be used with extreme caution and only where a bona fide, non-discriminatory justification exists (for example, a position requiring a security clearance that is available only to U.S. citizens). Any such language should be reviewed and approved by immigration counsel before publication.
Form I-9 Completion. During the I-9 process, the employer must accept any valid combination of List A, List B, or List C documents chosen by the employee. The employer may not request specific documents, suggest that one type of document is preferred, or reject documents that reasonably appear genuine. This is discussed in greater detail in Module 4.
Documentation of Hiring Decisions. All hiring decisions should be documented based on qualifications, experience, interview performance, and other job-related criteria. If a hiring decision is ever challenged, OWS must be able to demonstrate that the decision was based on legitimate, non-discriminatory factors.
4.4 Penalties
Violations of INA § 274B carry significant civil penalties:
• Unfair Document Practices (First Offense): $250 to $2,500 per individual affected.
• Unfair Document Practices (Subsequent Offenses): Escalating penalties, potentially reaching $5,000 or more per individual.
• Citizenship Status or National Origin Discrimination: Penalties ranging from $275 to $3,500 per individual for first-time violations, with escalating penalties for repeat offenders.
• Pattern or Practice Violations: Substantially higher penalties and potential injunctive relief.
OWS's exposure is heightened by its size (340 employees), its position in the high-technology industry, and the diversity of its workforce. The IER has increasingly targeted technology employers for compliance reviews and investigations, and OWS must ensure that all personnel understand and adhere to these requirements.
SECTION 5: MODULE 4 — FORM I-9 COMPLIANCE
5.1 Overview of Form I-9 Requirements
Every employer in the United States is required to verify the identity and employment authorization of all employees hired for employment, using Form I-9 (Employment Eligibility Verification), as mandated by INA § 274A. This requirement is universal — it applies to every new hire, regardless of citizenship, nationality, or immigration status. Form I-9 compliance is not limited to foreign national employees; every new OWS employee, including U.S. citizens and permanent residents, must complete the I-9 process.
The I-9 process involves two sequential steps:
Step 1 — Employee Completion of Section 1. The employee must complete Section 1 of Form I-9 on or before the first day of employment for pay. Section 1 requires the employee to provide their full legal name, address, date of birth, and to attest to their citizenship or immigration status by selecting the appropriate checkbox (U.S. citizen, noncitizen national, lawful permanent resident, or alien authorized to work). The employee must also provide their Social Security Number (if the employer participates in E-Verify, as OWS does, the SSN is mandatory) and sign and date the form.
Step 2 — Employer Completion of Section 2. The employer (or the employer's authorized representative) must complete Section 2 of Form I-9 within three (3) business days of the employee's start date. Section 2 requires the employer to physically examine (or, in certain circumstances, examine via an authorized alternative procedure) the employee's identity and employment authorization documents. The employer must record the document title, issuing authority, document number, and expiration date for each document examined, and must certify that the documents appear to be genuine and to relate to the employee.
It is essential that all OWS personnel involved in the I-9 process understand the strict timelines for completion. Late completion of Section 1 or Section 2 is among the most common I-9 violations identified in government audits and can result in penalties even if the employee is fully authorized to work.
5.2 Acceptable Documents
Form I-9 includes three lists of acceptable documents:
List A — Documents That Establish Both Identity and Employment Authorization:
• U.S. passport or U.S. passport card
• Permanent Resident Card (Form I-551)
• Employment Authorization Document (Form I-766 / EAD)
• Foreign passport with Form I-94, Arrival/Departure Record, and Form I-797, Notice of Action (applicable to certain nonimmigrant categories, including H-1B)