DEEMED EXPORT / EXPORT CONTROL SCREENING PROTOCOL
Immigration-Specific Procedures
DOCUMENT IDENTIFICATION
DISTRIBUTION LIST: This document is to be distributed solely to the following authorized recipients. Any further distribution, reproduction, or dissemination without the express written consent of Calderwood & Harkness LLP and Optiwave Semiconductor Corp. General Counsel is strictly prohibited.
This document constitutes confidential attorney-client privileged communications and attorney work product prepared in anticipation of and in connection with the provision of legal services. It is provided solely for the use of the addressees and their authorized representatives in connection with the matters described herein. This document is not intended to constitute legal advice to any other person or entity and should not be relied upon by any third party.
TABLE OF CONTENTS
Right-click to update Table of Contents
I. PURPOSE AND SCOPE
A. Purpose
This Deemed Export / Export Control Screening Protocol — Immigration-Specific Procedures (hereinafter, the "Protocol") has been prepared by Calderwood & Harkness LLP at the request and for the sole benefit of Optiwave Semiconductor Corp. ("OWS") to establish a unified, comprehensive protocol that integrates OWS's immigration program with its export control compliance obligations under applicable federal law. The Protocol is designed to be a practical, operational framework governing the intersection of immigration-related hiring and employment practices with the export control obligations that arise under the Export Administration Regulations ("EAR"), 15 C.F.R. Parts 730–774, and, where applicable, the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Parts 120–130.
OWS is a leading developer and manufacturer of photonic integrated circuit ("PIC") technology for data center interconnects. As a semiconductor company operating at the forefront of photonics innovation, OWS relies heavily on a highly specialized, globally recruited workforce. OWS presently employs eighteen (18) foreign national employees under nonimmigrant visa classifications, consisting of fourteen (14) H-1B specialty occupation workers, three (3) O-1A extraordinary ability visa holders, and one (1) O-1B extraordinary achievement visa holder. In addition, OWS has identified twelve (12) pipeline candidates for the FY2026 immigration cycle, consisting of five (5) cap-selected H-1B registrants, two (2) cap-exempt H-1B transfer candidates, one (1) O-1A petition candidate, and four (4) unselected cap registrants for whom alternative visa strategies may be pursued.
The core risk this Protocol addresses is the "deemed export" rule, which provides that the release of controlled technology or source code to a foreign national within the United States is treated as an export to the foreign national's country of nationality or, if the individual is stateless, to the country of last permanent residence. See EAR 15 C.F.R. § 734.2(b)(2)(ii). This means that when OWS provides one of its H-1B or O-1 visa holder employees with access to EAR-controlled technology — for example, by allowing the employee to view PIC design files, participate in fabrication process discussions, or access design automation tools containing controlled technical parameters — OWS is, as a matter of law, making an "export" of that technology to the employee's home country. If such an export would require a license from the Bureau of Industry and Security ("BIS") under the EAR, then OWS must obtain that license before providing the access, or alternatively must restrict the employee's access to only those technologies for which no license is required.
The consequences of noncompliance are severe. Willful violations of the EAR are subject to criminal penalties under the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. § 1705, including fines of up to $1,000,000 per violation and imprisonment of up to twenty (20) years. Civil penalties under the EAR may be imposed in amounts up to the greater of $330,000 per violation or twice the value of the transaction that is the basis of the violation. See 15 C.F.R. § 764.3. ITAR violations carry similarly severe penalties, including criminal fines of up to $1,000,000 and imprisonment of up to twenty (20) years per violation under 22 U.S.C. § 2778, and civil penalties of up to $1,295,099 per violation under 22 C.F.R. § 127.10. Beyond monetary penalties, violations may result in denial of export privileges, debarment, and reputational harm that could materially affect OWS's business relationships, government contracting eligibility, and investor confidence.
This Protocol is therefore designed to accomplish the following objectives:
1. Ensure that OWS can lawfully employ, onboard, and provide appropriate work access to its eighteen (18) current visa holders and twelve (12) FY2026 pipeline candidates without violating export control laws.
2. Establish a systematic pre-employment screening workflow that evaluates deemed export requirements for each foreign national candidate before immigration petitions are filed or, at minimum, before the beneficiary begins working at OWS.
3. Coordinate the timing of export control screening with immigration filing deadlines to prevent gaps in compliance.
4. Integrate deemed export compliance into OWS's existing Technology Control Plan ("TCP") framework, ensuring that physical, electronic, and oral disclosure access controls align with each foreign national employee's export control clearance level.
5. Establish restricted party screening procedures to ensure that no foreign national employee or candidate appears on any U.S. government restricted party list.
6. Create clear roles, responsibilities, and escalation pathways among OWS personnel, Calderwood & Harkness LLP, and relevant third-party vendors.
7. Provide a recordkeeping and audit framework that satisfies EAR record retention requirements and supports OWS's overall compliance posture.
B. Scope of Application
This Protocol applies to all foreign national employees and candidates for employment of Optiwave Semiconductor Corp., a Delaware corporation qualified to do business in the States of California, Texas, and Oregon. For purposes of this Protocol, a "foreign national" means any individual who is not a United States citizen or a lawful permanent resident of the United States. Lawful permanent residents (green card holders) are exempted from the deemed export rule under EAR 15 C.F.R. § 734.2(b)(2)(ii) and are therefore not subject to the screening procedures described herein, except for restricted party screening, which applies to all employees regardless of immigration status.
Covered Worksites. This Protocol applies to all three OWS worksites and to remote work arrangements, as follows:
Site A — San Jose Headquarters: 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134. This facility serves as OWS's corporate headquarters and primary engineering center. Approximately 210 employees are based at this location, including eleven (11) H-1B workers and all three (3) O-1A visa holders. Site A houses the principal PIC design laboratory, the clean room fabrication pilot line, and the primary data center for design automation and simulation computing. Site A contains the highest concentration of controlled technology and represents the greatest deemed export risk exposure.
Site B — Austin Design Center: 7600 Spectrum Drive, Building 4, Austin, TX 78729. This facility serves as a satellite design center focused on analog and mixed-signal IC design supporting PIC-adjacent product development. Approximately 65 employees are based at this location, including two (2) H-1B workers. Site B contains EDA workstations and limited test equipment.
Site C — Portland Test Facility: 1425 Northwest Couch Street, Suite 200, Portland, OR 97209. This facility serves as a test and characterization laboratory for PIC devices and sub-assemblies. Approximately 40 employees are based at this location, including one (1) H-1B worker and the O-1B visa holder (Luciana Moretti). Site C contains optical test benches, reliability testing chambers, and characterization instruments.
Remote Workers: Approximately 25 employees work remotely on a regular or hybrid basis. To the extent any remote worker is a foreign national and accesses controlled technology through OWS's network (via VPN or other remote access technology), this Protocol applies in full. Remote access to controlled technology repositories is subject to the same TCP tier restrictions applicable at on-site locations.
Covered Technology. This Protocol applies to OWS's core technology portfolio, which centers on photonic integrated circuit design and fabrication for data center interconnects. OWS operates under NAICS Code 334413 — Semiconductor and Related Device Manufacturing. OWS's technology portfolio encompasses, without limitation, III-V semiconductor materials processing (including indium phosphide and gallium arsenide compound semiconductor growth and processing), silicon photonics design and fabrication, waveguide design and optimization, electro-optic modulator and photodetector integration, advanced packaging techniques for co-packaged optics, and associated test and characterization methodologies. The specific export control classifications applicable to this technology portfolio are addressed in Section III of this Protocol.
Third-Party Applicability. This Protocol applies to interactions with the following third-party service providers to the extent such interactions facilitate foreign national access to OWS facilities, technology, or information:
Granville Staffing Solutions, Inc. — Historical staffing vendor (Dennis Faulkner, CEO) that previously placed H-1B workers at OWS under staffing arrangements. Several current OWS direct-hire employees were originally placed through Granville. Complete export control files for these employees must be maintained or reconstructed, including any assessments performed during the staffing period.
Ridgeline Relocation Services LLC — Relocation logistics provider (Brenda Castillo, Account Manager) that assists with domestic and international relocation for new hires. Ridgeline personnel must not be provided with access to controlled technology during the relocation process and must receive appropriate briefing regarding facility access restrictions.
Sentinel Background Verification Corp. — Background check and E-Verify support provider (Tyler Ng, Account Lead). Sentinel supports OWS's restricted party screening process and E-Verify compliance (E-Verify Company ID 1487623). Sentinel integrates consolidated screening list checks into its background verification workflow.
Covered Individuals. In addition to OWS's eighteen (18) current visa holders, this Protocol specifically covers the following pipeline candidates:
Academic/Research Institution Transferees: Dr. Kenji Watanabe, currently a postdoctoral researcher at Northfield University Research Lab, whose cap-exempt H-1B transfer is pending with a target filing date of August 1, 2025; and Dr. Ingrid Halvorsen, currently a research scientist at Cascade Institute of Technology, whose cap-exempt H-1B transfer is pending with a target filing date of September 30, 2025. Both candidates are transitioning from academic/research environments where the Fundamental Research Exclusion ("FRE") may have applied to their work, and careful analysis is required to delineate FRE-eligible knowledge from OWS proprietary technology.
Consular Processing Candidate: Dr. Rohan Deshmukh, currently residing in India (Pune, Maharashtra), for whom an O-1A extraordinary ability petition is planned with a target filing date of July 15, 2025. Dr. Deshmukh is a distinguished researcher with over 85 peer-reviewed publications and 12 issued patents. His published research may qualify for the FRE, but OWS proprietary technology he will access upon employment as Distinguished Engineer will not.
FY2026 Cap-Selected H-1B Candidates: Naveen Sharma, Yuki Tanaka, Ekaterina Solovyova, Ahmed Hassan, and Min-Jun Lee.
F-1 OPT/STEM OPT Candidates: Certain pipeline candidates may currently hold F-1 OPT or STEM OPT employment authorization; deemed export requirements apply equally to F-1 visa holders engaged in practical training.
Unselected FY2026 Cap Registrants: Carlos Delgado Rivera, Anh Nguyen, Blessing Adeyemi, and Sofia Petrova. Full deemed export assessments for these candidates are deferred unless alternative visa pathways are identified and pursued.
C. Regulatory Framework Overview
The following federal regulatory frameworks govern the export control obligations addressed in this Protocol. This summary is provided for reference purposes and is not intended to be exhaustive.
Export Administration Regulations (EAR). The EAR, codified at 15 C.F.R. Parts 730–774, are administered by the Bureau of Industry and Security ("BIS") within the U.S. Department of Commerce. The EAR govern the export, reexport, and transfer (in-country) of "dual-use" items — that is, items that have both commercial and potential military or proliferation applications. The EAR impose license requirements based on the classification of the item (assigned an Export Control Classification Number, or "ECCN," from the Commerce Control List), the country of destination, the end-use, and the end-user. Items not specifically classified under any ECCN are designated "EAR99" and are generally exportable without a license to most destinations, subject to certain end-use and end-user restrictions.
International Traffic in Arms Regulations (ITAR). The ITAR, codified at 22 C.F.R. Parts 120–130, are administered by the Directorate of Defense Trade Controls ("DDTC") within the U.S. Department of State. The ITAR govern the export and temporary import of defense articles, defense services, and related technical data as identified on the United States Munitions List ("USML"), 22 C.F.R. § 121.1. ITAR controls are generally more restrictive than EAR controls, and ITAR-controlled items require specific State Department authorization for export to any foreign person, regardless of destination country. The distinction between EAR and ITAR jurisdiction is determined through a commodity jurisdiction ("CJ") process. OWS's technology is currently classified as EAR-controlled based on self-classification and prior CJ analysis, but certain product lines with potential defense applications warrant ongoing monitoring.
Deemed Export Rule — EAR. The deemed export rule is the central regulatory provision that gives rise to the immigration-specific compliance obligations addressed in this Protocol. Under EAR 15 C.F.R. § 734.2(b)(2)(ii), the release of "technology" or "source code" (as those terms are defined in the EAR) to a foreign person within the United States is "deemed" to be an export of that technology or source code to the foreign person's most recent country of citizenship or permanent residency. The term "release" is broadly construed and includes, among other things: (i) visual inspection by a foreign national of equipment and facilities; (ii) oral exchanges of information in meetings, conversations, or presentations; (iii) the application of personal knowledge or technical experience acquired in the United States; and (iv) the provision of access to electronic data, databases, design files, or server environments containing controlled technology. Critically, the deemed export rule applies to the release of "technology" and "source code" only — it does not apply to the release of items (commodities, equipment) themselves. However, access to equipment that necessarily entails exposure to controlled technology (e.g., operating a fabrication tool whose operating parameters are ECCN-controlled) may still trigger the deemed export rule.
ITAR Deemed Export Analog. Under 22 C.F.R. § 120.17, the furnishing of "defense services" — which includes the furnishing of assistance, including training, to foreign persons in the use of defense articles and the furnishing of technical data to foreign persons — constitutes an export regardless of whether the furnishing occurs within the United States or abroad. This provision operates as the ITAR equivalent of the EAR deemed export rule and imposes additional restrictions on the disclosure of ITAR-controlled technical data to foreign national employees.
Commerce Control List (CCL). The CCL is set forth in Supplement No. 1 to Part 774 of the EAR and organizes controlled items into ten categories (0–9) and five product groups (A–E). Each controlled item is assigned an ECCN that identifies the item and the reasons for control (e.g., national security, missile technology, regional stability, anti-terrorism). The reasons for control, in conjunction with the Commerce Country Chart (Supplement No. 1 to Part 738), determine whether a license is required for export to a particular destination.
United States Munitions List (USML). The USML is set forth at 22 C.F.R. § 121.1 and identifies defense articles and defense services subject to ITAR jurisdiction. Relevant USML categories for OWS's technology include, potentially, Category XI (Military Electronics), Category XII (Fire Control, Laser, Imaging, and Guidance Equipment), and Category XV (Spacecraft Systems and Associated Equipment), depending on specific applications of PIC technology.
OFAC Sanctions Programs. The Office of Foreign Assets Control ("OFAC") within the U.S. Department of the Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals. OFAC maintains several lists of restricted parties, including the Specially Designated Nationals and blocked Persons List ("SDN List") and the Sectoral Sanctions Identifications List ("SSI List"). While OFAC sanctions are distinct from EAR and ITAR export controls, they impose overlapping and in some cases more restrictive prohibitions on transactions involving certain countries, entities, and individuals. OWS must screen all foreign national employees and candidates against OFAC lists as part of its comprehensive compliance program.
II. OWS TECHNOLOGY PROFILE AND EXPORT CONTROL CLASSIFICATION
A. Nature of OWS Technology
Optiwave Semiconductor Corp. specializes in the design and fabrication of photonic integrated circuits for data center interconnects, a market segment that has experienced significant growth driven by increasing demand for high-bandwidth, low-latency optical communication within and between hyperscale data centers. OWS's technology enables the integration of multiple photonic functions — including laser sources, optical modulators, photodetectors, and waveguide routing — onto a single semiconductor chip, dramatically reducing power consumption, footprint, and cost compared to discrete optical component solutions.
OWS's core competencies span the following technical domains:
III-V Semiconductor Materials Processing: OWS maintains proprietary expertise in the epitaxial growth, fabrication, and processing of indium phosphide (InP) and gallium arsenide (GaAs) compound semiconductor materials for active photonic devices, including distributed feedback (DFB) lasers, electro-absorption modulators (EAMs), and high-speed photodetectors. This expertise encompasses metal-organic chemical vapor deposition (MOCVD) growth recipes, wafer-level processing techniques, and yield optimization methodologies.
Silicon Photonics: OWS designs and fabricates silicon photonic circuits leveraging CMOS-compatible fabrication processes for passive waveguide routing, grating couplers, wavelength-division multiplexing (WDM) filters, and Mach-Zehnder interferometer (MZI) modulators. OWS utilizes proprietary process design kits (PDKs) developed in collaboration with foundry partners.
Waveguide Design and Optimization: OWS employs advanced electromagnetic simulation and optimization techniques for photonic waveguide design, including mode solvers, finite-difference time-domain (FDTD) simulation, and topology optimization algorithms for minimizing insertion loss and crosstalk.
Modulator/Detector Integration: OWS's heterogeneous integration platform enables the co-integration of III-V active devices with silicon photonic passive circuits through wafer bonding, micro-transfer printing, and other advanced integration techniques.
Advanced Packaging for Co-Packaged Optics: OWS develops co-packaged optics (CPO) solutions that integrate photonic integrated circuits with application-specific integrated circuits (ASICs) at the package level, utilizing advanced packaging techniques including 2.5D and 3D integration, high-density fiber coupling, and thermal management solutions.
OWS reported annual revenue of $187.4 million for fiscal year 2024, as reflected in audited financial statements prepared by Pendleton Accounting Group LLP (engagement partner Marcus Hensley, CPA). OWS's majority shareholder is Crestline Ventures Fund IV, LP, which holds 62.4% of OWS's equity, acquired on September 15, 2022. The general partner of Crestline Ventures Fund IV, LP is Crestline Ventures Management IV, LLC, managed by Howard Driscoll. Crestline Ventures maintains portfolio-wide compliance expectations for its investee companies, including with respect to export control and sanctions compliance, and has communicated to OWS management that the implementation of robust compliance protocols is a condition of continued investment support.
B. ITAR-Adjacent Technology Characterization
While OWS's products are developed and marketed primarily for commercial data center applications, certain elements of OWS's photonic technology portfolio have potential defense and military applications that must be considered in the export control classification analysis. Photonic integrated circuits are increasingly relevant to defense systems in the following areas:
LiDAR Sensing: PIC-based LiDAR systems are under development for autonomous vehicles and unmanned aerial systems (UAS), both of which have significant defense applications. OWS's silicon photonic beam-steering technologies and high-speed detector arrays could potentially be adapted for military-grade LiDAR.
Free-Space Optical Communications: PIC technology enables compact, high-bandwidth free-space optical communication links suitable for satellite-to-ground and inter-satellite communications, which are of significant interest to the U.S. Department of Defense and intelligence community.
RF Photonics for Electronic Warfare: Photonic techniques for radio-frequency (RF) signal generation, distribution, and processing are increasingly used in electronic warfare (EW) and signals intelligence (SIGINT) systems. OWS's modulator and detector technology has potential applicability in these domains.
PIC-Based Signal Processing for Defense Sensors: Advanced photonic signal processing techniques, including optical beamforming, spectral analysis, and coherent detection, are applicable to a range of defense sensor systems including radar, sonar, and imaging sensors.
OWS currently classifies its primary product lines as EAR-controlled, not ITAR-controlled, based on a commodity jurisdiction determination and self-classification analysis. However, the evolving nature of OWS's technology and the increasing interest of defense customers in photonic solutions necessitate ongoing vigilance. Any new product lines developed by OWS, any defense contract opportunities pursued by OWS, and any technology development that may bring OWS's products within the scope of USML categories must trigger a fresh commodity jurisdiction review. Calderwood & Harkness recommends that OWS consider filing a formal CJ determination request with DDTC for any product or technology that presents a close classification question, rather than relying solely on self-classification.
C. Key Export Control Classification Numbers (ECCNs)
Based on Calderwood & Harkness's preliminary review of OWS's technology portfolio, in consultation with Dr. Yun-Sheng Chen (VP of Engineering), the following ECCNs are potentially applicable to OWS's core technology and must be considered in deemed export analyses for foreign national employees:
It is critical to note that ECCN 3E001 and ECCN 5E001 — the "technology" ECCNs — are the classifications most directly relevant to deemed export analysis because the deemed export rule applies specifically to the release of "technology" and "source code," not to the release of items (commodities) themselves. The vast majority of OWS's deemed export risk arises from the potential release of development, production, and use technology controlled under these ECCNs to foreign national employees.
Certain OWS fabrication process knowledge, proprietary design files, simulation models, and EDA tool configurations constitute "technology" as defined in EAR 15 C.F.R. § 772.1, which defines "technology" as specific information necessary for the "development," "production," or "use" of a product, including technical data such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals, and instructions. This definition encompasses a substantial portion of the intellectual property and know-how that OWS's engineering workforce — including its foreign national engineers — uses on a daily basis.
A comprehensive OWS Technology Classification Reference Table, mapping each of OWS's technology areas to applicable ECCNs and USML categories, is provided in Appendix B to this Protocol. Dr. Yun-Sheng Chen, in coordination with Calderwood & Harkness, is responsible for maintaining and updating this reference table as OWS's technology portfolio evolves.
D. Technology Control Plan (TCP) — Existing OWS Framework
OWS maintains a Technology Control Plan that was originally developed in 2019 in coordination with OWS's prior immigration counsel, Whitfield & Parekh LLP (engagement period 2019–April 2025, lead attorney Kavita Parekh). The TCP governs physical and information access controls for foreign national employees and is designed to ensure that controlled technology is not released to foreign nationals without appropriate authorization.
The existing TCP provides a foundational framework but must be reviewed and updated under Calderwood & Harkness's guidance to reflect the following developments since the TCP's last substantive revision:
(a) Changes in the composition of OWS's foreign national workforce, including the addition of new visa holders and the departure of former employees;
(b) The onboarding of twelve (12) FY2026 pipeline candidates, several of whom will occupy positions with access to technology not previously addressed in the TCP;
(c) Evolution of OWS's technology portfolio, including new product lines, fabrication processes, and design tools that may be subject to different or additional export control classifications;
(d) Changes in U.S. export control regulations, including recent amendments to the EAR affecting semiconductor and advanced computing technology (including the October 2022 and October 2023 BIS final rules on advanced computing and semiconductor manufacturing items);
(e) Integration of the TCP with Calderwood & Harkness's recommended immigration compliance procedures, including the screening workflows and timing coordination mechanisms described in this Protocol.
The TCP is maintained by Dr. Yun-Sheng Chen (VP of Engineering) with operational support from Rajesh Anand (Immigration Program Manager) and Samantha Kowalski (Director of Human Resources). Calderwood & Harkness will conduct a comprehensive TCP review as a priority engagement task, with a target completion date of August 15, 2025, and will provide written recommendations for TCP amendments to Patricia Langford (General Counsel) for approval.
III. DEEMED EXPORT ANALYSIS: IMMIGRATION-SPECIFIC CONSIDERATIONS
A. Definition and Triggering Events
The deemed export rule, codified at EAR 15 C.F.R. § 734.2(b)(2)(ii), provides that the release of "technology" or "source code" subject to the EAR to a foreign national within the United States is "deemed" to be an export of that technology or source code to the foreign national's country of citizenship or, if the foreign national is stateless, the country of the foreign national's last permanent residence. This constructive export — which occurs entirely within the borders of the United States — is subject to the same licensing requirements that would apply to a physical export of the same technology to the foreign national's home country.
For purposes of the deemed export analysis, "release" is defined broadly and encompasses the following categories of information transfer:
(a) Visual inspection by a foreign national of equipment, facilities, fabrication lines, test benches, and other physical environments that embody or reveal controlled technology. For example, a foreign national engineer walking through OWS's clean room fabrication pilot line and observing the layout, equipment configurations, and process flows may constitute a "release" of controlled fabrication technology.
(b) Oral exchanges of information, including conversations, meetings, presentations, design reviews, technical discussions, training sessions, and any other verbal communication that conveys controlled technology. A team meeting in which a lead engineer discusses the operating parameters of OWS's MOCVD growth process in the presence of a foreign national who has not been cleared for access to that technology may constitute a deemed export.
(c) Application of personal knowledge or technical experience acquired in the United States. This category recognizes that even informal knowledge transfer — such as mentoring, on-the-job training, or collaborative problem-solving — can constitute a release of controlled technology.
(d) Provision of access to electronic data, databases, design files, simulation models, or server environments containing controlled technology. Granting a foreign national employee network access to a file server containing ECCN-classified design files, even if the employee does not actually open or read the files, may constitute a release if the access provides the opportunity to obtain the controlled technology.
A deemed export is treated as an export to the foreign national's country of citizenship for purposes of determining whether a license is required. This means that OWS must analyze each foreign national employee's country of citizenship, identify the applicable EAR Country Group designations and reasons for control, and consult the Commerce Country Chart (Supplement No. 1 to Part 738) to determine whether a BIS license is required for the deemed export of the specific ECCN-classified technology to that country.
B. Immigration Status Does Not Exempt from Deemed Export Rules
It is essential that all OWS personnel understand that the possession of a valid U.S. nonimmigrant visa — whether an H-1B, O-1A, O-1B, F-1, L-1, or any other classification — does not create an exemption from deemed export requirements. The EAR draws a single, clear line: only U.S. citizens and lawful permanent residents (green card holders) are excluded from the definition of "foreign person" for purposes of the deemed export rule. See EAR 15 C.F.R. § 734.2(b)(2)(ii) (providing that the deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States).
This distinction has significant practical implications for OWS:
(a) All eighteen (18) of OWS's current visa holders — including senior scientists and architects holding O-1A visas who have been employed by OWS for years and who have extensive access to OWS's most sensitive technology — remain subject to deemed export analysis and potential licensing requirements until they obtain lawful permanent resident status.
(b) All twelve (12) pipeline candidates, regardless of their visa classification upon hire, will be subject to deemed export analysis.
(c) The fact that a foreign national employee has passed a security background check, holds a security clearance at another employer, or has been vetted through E-Verify is irrelevant to the deemed export analysis. These processes serve different purposes and do not substitute for export control compliance.
(d) Of the seven (7) PERM labor certification cases currently pending or approved — six (6) in the EB-2 preference category and one (1) in the EB-3 preference category — and the one (1) EB-1B outstanding researcher petition pending on behalf of Takeshi Nakamura (priority date September 10, 2022), none has yet resulted in the grant of lawful permanent resident status. Accordingly, all of these employees remain fully subject to deemed export controls notwithstanding the pendency of their green card applications.
(e) Employees who have filed Form I-485 (Application to Register Permanent Residence or Adjust Status) and are in pending adjustment of status are not lawful permanent residents until their I-485 is approved and they receive their green card. The pendency of an adjustment application provides no deemed export exemption.
C. Country-of-Citizenship Mapping for Current and Pipeline Employees
This Protocol requires the maintenance of a current matrix mapping each foreign national employee's country of citizenship to the relevant EAR Country Group designation (per Supplement No. 1 to Part 740 of the EAR) and OFAC sanctions status. This matrix, denominated the "Foreign National Employee Deemed Export Screening Matrix," is maintained as a living document by Rajesh Anand (Immigration Program Manager) and constitutes Appendix A to this Protocol.
For purposes of the deemed export analysis, the following EAR Country Group designations are of particular concern:
Country Group D:1 (National Security Concerns): This group includes countries for which national security-related license requirements apply broadly across the Commerce Control List. Countries in Group D:1 include, among others, the People's Republic of China, Russia, and Vietnam. Deemed exports of technology classified under ECCNs with national security (NS) reasons for control to nationals of Country Group D:1 countries will generally require a BIS license. Given that OWS's technology is controlled primarily for national security reasons (NS Column 1 and NS Column 2), nationals of Country Group D:1 countries present the highest deemed export licensing risk.
Country Group E:1 and E:2 (Terrorism-Supporting and Unilateral Embargo Countries): These groups include countries subject to the broadest export restrictions under the EAR. Deemed exports to nationals of Country Group E countries require a license for virtually all ECCNs and are subject to a general policy of denial.
OFAC Specially Designated Nationals (SDN) List: The SDN List identifies individuals and entities whose property is blocked and with whom U.S. persons are generally prohibited from dealing. Individual-level screening against the SDN List is required for all foreign national employees and candidates regardless of country of citizenship.
OWS's current and pipeline foreign national workforce includes nationals of the following countries, each of which requires an individual deemed export analysis: India, Taiwan, South Korea, Ukraine, Mexico, Japan, Egypt, China, Nigeria, Ghana, Italy, Russia, Norway, Vietnam, Brazil, and Ethiopia. The specific country-of-citizenship determination for each individual is based on passport documentation and is confirmed during the nationality identification step of the pre-employment screening workflow described in Section V.A of this Protocol.
It should be noted that some individuals may hold dual citizenship, and the deemed export analysis must account for all countries of citizenship. Where an individual holds citizenship in multiple countries, including one or more Country Group D or E countries, the most restrictive country determination applies.
A summary of the EAR Commerce Country Chart analysis for each country of nationality represented in OWS's foreign national workforce is provided in Appendix C to this Protocol.
D. Fundamental Research Exclusion (FRE)
The EAR provides an exclusion from export control requirements for technology that arises from "fundamental research." Under EAR 15 C.F.R. § 734.8, "fundamental research" means basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls. Technology arising from fundamental research is considered to be in the "public domain" and is therefore not "subject to the EAR," meaning that the deemed export rule does not apply to its release.
The FRE is primarily relevant to universities and federally funded research institutions that conduct research intended for open publication. OWS is a private, for-profit corporation, not a university or federally funded research center. Accordingly, the FRE generally does not apply to OWS's proprietary technology. OWS's research and development activities are conducted for commercial purposes, and the results are protected as trade secrets and proprietary information rather than being published and shared broadly within the scientific community.
However, the FRE analysis is relevant to OWS in the following limited circumstances:
Collaborative Research with Academic Partners: OWS has collaborative research relationships with academic institutions, including Northfield University Research Lab and Cascade Institute of Technology. Research conducted at these institutions under conditions consistent with the FRE — i.e., where the research results are intended for open publication and are not subject to proprietary restrictions or government access controls — may generate FRE-eligible results. However, once FRE-eligible knowledge is combined with or applied to OWS's proprietary technology, the resulting technology is no longer FRE-eligible and is subject to the EAR.
Dr. Kenji Watanabe: Dr. Watanabe is currently a postdoctoral researcher at Northfield University Research Lab and is in the process of transferring to OWS via a cap-exempt H-1B transfer (target filing date August 1, 2025). Research that Dr. Watanabe conducted at Northfield University under FRE-qualifying conditions may be freely shared without export control restrictions. However, once Dr. Watanabe joins OWS and begins accessing OWS's proprietary PIC design technology, fabrication process knowledge, and other controlled technical data, the FRE no longer provides any protection for that OWS-proprietary information. Dr. Watanabe's access to OWS technology must be evaluated under the full deemed export analysis framework.
Dr. Ingrid Halvorsen: Dr. Halvorsen is currently a research scientist at Cascade Institute of Technology and is in the process of transferring to OWS via a cap-exempt H-1B transfer (target filing date September 30, 2025). The same FRE analysis applies: Dr. Halvorsen's published academic research may be FRE-eligible, but OWS proprietary technology she will access as a Senior Photonics Research Scientist is not.
Dr. Rohan Deshmukh: Dr. Deshmukh, currently residing in India, is a distinguished researcher with over 85 peer-reviewed publications and 12 issued patents. His published research — to the extent it has been published and shared broadly within the scientific community without proprietary restrictions — may qualify for the FRE. However, the OWS proprietary technology to which Dr. Deshmukh will gain access upon commencing employment as Distinguished Engineer is emphatically not covered by the FRE. Dr. Deshmukh's deemed export screening must be completed before his entry into the United States and commencement of employment at OWS.
In all cases, the delineation between FRE-eligible academic knowledge and OWS proprietary controlled technology must be clearly documented. The burden of establishing that specific technology qualifies for the FRE rests with OWS, and Calderwood & Harkness recommends that OWS err on the side of treating technology as controlled rather than assuming FRE applicability in ambiguous cases.
IV. DEEMED EXPORT LICENSE EVALUATION PROCEDURES
A. Pre-Employment Screening Workflow
OWS shall implement the following seven-step pre-employment screening workflow for each foreign national candidate. This workflow must be completed before a visa petition is filed on behalf of the candidate or, at minimum, before the candidate begins working at OWS and gains access to any controlled technology. The workflow is designed to be completed in sequence, with each step building on the results of the preceding step.
Step 1: Nationality Identification.
The Director of Human Resources, Samantha Kowalski, in coordination with the Immigration Program Manager, Rajesh Anand, confirms each candidate's country of citizenship based on the candidate's passport, visa application documentation, and Form I-9 (Employment Eligibility Verification) documentation. E-Verify confirmation is processed through Sentinel Background Verification Corp. (E-Verify Company ID 1487623, account lead Tyler Ng). Where a candidate holds dual or multiple citizenships, all countries of citizenship must be identified and documented.
The nationality identification must be recorded in the candidate's export control file and cross-referenced in the Foreign National Employee Deemed Export Screening Matrix (Appendix A). If there is any ambiguity or discrepancy in the nationality documentation, the matter must be escalated to Calderwood & Harkness LLP for resolution before proceeding to Step 2.
Step 2: Position-Specific Technology Access Assessment.
The VP of Engineering, Dr. Yun-Sheng Chen, in coordination with the hiring manager for the specific position, identifies the specific technology, source code, and technical data that the position will require the candidate to access. This assessment must be position-specific, not generic — it must identify the actual design files, fabrication process documents, test methodologies, EDA tools, laboratory equipment, and technical databases that the candidate will use or be exposed to in the course of performing their job duties.
The assessment should consider both direct access (e.g., technology the candidate will use in performing their assigned tasks) and incidental access (e.g., technology the candidate may be exposed to during team meetings, design reviews, facility tours, or through network access to shared repositories). The assessment must also consider whether the candidate's physical workspace is located in proximity to restricted areas where controlled technology may be visible or audible.
Dr. Yun-Sheng Chen is responsible for providing a written attestation identifying the technology that the position requires access to, which will be included in the candidate's export control file.
Step 3: ECCN/USML Classification Review.
The technology identified in Step 2 is cross-referenced against the Commerce Control List (CCL) to determine the applicable Export Control Classification Number(s) and against the USML to determine whether any ITAR-controlled items are implicated. This classification review utilizes the OWS Technology Classification Reference Table (Appendix B) as a starting point, supplemented by item-specific analysis where necessary.
If the technology identified in Step 2 is classified as EAR99 (i.e., not specifically classified under any ECCN), no deemed export license is required and the candidate may be assigned to TCP Tier 1 (Unrestricted) for that technology. If the technology is classified under a specific ECCN, the analysis proceeds to Step 4. If the technology is potentially ITAR-controlled, the analysis must be escalated to Calderwood & Harkness LLP for commodity jurisdiction review, and the candidate's access must be restricted to TCP Tier 3 (Restricted — U.S. citizens and LPRs only) pending resolution.
This step is performed by Dr. Yun-Sheng Chen with legal guidance from Calderwood & Harkness LLP (Dr. Lena Marchetti and Derek Okonkwo).
Step 4: Country Determination and License Requirement Analysis.
Using the EAR Commerce Country Chart (Supplement No. 1 to Part 738), Calderwood & Harkness determines whether a BIS license is required for a deemed export of the specific ECCN-classified technology to the candidate's country of citizenship. The Commerce Country Chart is a matrix that cross-references the "reasons for control" applicable to each ECCN against the destination country (here, the candidate's country of citizenship). A license is required if the Commerce Country Chart indicates that any applicable reason for control requires a license for the relevant country.
For example, if a candidate is a national of a Country Group D:1 country and the technology is classified under ECCN 3E001 with reasons for control including National Security (NS Column 1), the Commerce Country Chart will indicate that a license is required. Conversely, if a candidate is a national of a Country Group A:1 country (e.g., Japan, South Korea, or certain European countries) and the same ECCN applies, the Commerce Country Chart may indicate that no license is required because the country is eligible for a license exception.
The results of this analysis are documented in the candidate's export control file and in the Foreign National Employee Deemed Export Screening Matrix.
Step 5: License Exception Evaluation.
If Step 4 determines that a BIS license would be required for the deemed export, Calderwood & Harkness evaluates whether any license exception is available that would authorize the deemed export without a specific BIS license. Potentially applicable license exceptions include:
• License Exception TSR (Technology and Software under Restriction), 15 C.F.R. § 740.6: Authorizes the export and reexport of technology and source code controlled for NS reasons to specified destinations, subject to certain conditions.
• License Exception TMP (Temporary Imports, Exports, and Reexports), 15 C.F.R. § 740.9: Authorizes certain temporary exports and reexports, which may be relevant in limited deemed export contexts.
• License Exception GOV (Governments and International Organizations), 15 C.F.R. § 740.11: Authorizes exports and reexports to agencies of the U.S. Government and specified international organizations.
• License Exception APR (Additional Permissive Reexports), 15 C.F.R. § 740.16: Authorizes certain reexports that may be relevant in the context of multi-country deemed export scenarios.
The availability of a license exception must be assessed on a case-by-case basis, considering the specific ECCN, the country of citizenship, the end-use, and any applicable conditions or restrictions. Not all license exceptions are available for all ECCNs or all countries, and some license exceptions have been narrowed or eliminated for certain destinations (particularly Country Group D:1 and E countries) by recent regulatory amendments.
Step 6: License Application or Access Restriction Decision.
If no license exception is available, OWS must choose between two courses of action:
(a) File a Deemed Export License Application with BIS. OWS may file a license application through the SNAP-R system (as described in Section IV.C below) seeking authorization for the deemed export of the specific ECCN-classified technology to the specific foreign national employee. This course of action preserves the employee's ability to access the controlled technology but requires advance planning due to processing times of typically 30–90 days.
(b) Restrict the Employee's Access to Controlled Technology. OWS may restrict the foreign national employee's access to only those technologies for which no license is required, assigning the employee to a TCP tier consistent with their cleared access level. This course of action avoids the time and uncertainty of the license application process but may limit the employee's ability to perform certain job functions. In some cases, it may be possible to restructure the employee's position to avoid access to the specific controlled technology while still utilizing the employee's skills in an EAR99 or publicly available technology environment.
The decision between these two courses of action must be made in consultation with Calderwood & Harkness LLP and with the concurrence of Dr. Yun-Sheng Chen (technology perspective) and Patricia Langford (legal and business risk perspective).
Step 7: Documentation and Record Retention.
The complete analysis and decision are documented in the candidate's export control file, which is maintained in accordance with the record retention requirements described in Section XIII of this Protocol. At minimum, the export control file must contain: (i) the nationality identification documentation; (ii) Dr. Yun-Sheng Chen's written attestation regarding position-specific technology access; (iii) the ECCN/USML classification determination; (iv) the Commerce Country Chart analysis; (v) the license exception evaluation; (vi) the license application or access restriction decision memorandum; and (vii) any BIS correspondence, license grants, or license denials.
All records must be retained for a minimum of five (5) years after the later of: (a) the date of the deemed export (i.e., the date of actual technology release), or (b) the date of the last transaction to which the record pertains, in accordance with EAR 15 C.F.R. § 762.6.
B. Timing Coordination with Immigration Filings
The deemed export screening workflow described in Section IV.A must be coordinated with immigration filing deadlines to ensure that export control compliance is established before a foreign national begins working at OWS or gains access to controlled technology. The following timing requirements apply to OWS's current immigration filing calendar:
FY2026 H-1B Cap Petitions. OWS plans to file FY2026 H-1B cap petitions for five (5) cap-selected registrants — Naveen Sharma, Yuki Tanaka, Ekaterina Solovyova, Ahmed Hassan, and Min-Jun Lee — with a filing deadline of June 30, 2025, and an earliest employment start date of October 1, 2025. Deemed export screening for all five candidates must be completed no later than September 15, 2025 — two weeks before the earliest potential start date — to allow time for any necessary access restriction decisions or BIS license applications. If the screening determines that a BIS license is required and the license application is still pending as of October 1, 2025, the candidate must be onboarded with access restricted to TCP Tier 1 (Unrestricted) technology only until the license is granted.
H-1B Transfers (Cap-Exempt). For Dr. Kenji Watanabe, whose H-1B transfer petition targets an August 1, 2025 filing date, deemed export screening must be completed before Dr. Watanabe begins employment at OWS. Under the American Competitiveness in the Twenty-First Century Act ("AC21") portability provisions, an H-1B beneficiary may begin employment with a new employer upon the filing of a non-frivolous H-1B transfer petition; therefore, Dr. Watanabe may begin work at OWS as early as the filing date. Screening must be completed before that date. Similarly, for Dr. Ingrid Halvorsen, whose H-1B transfer petition targets a September 30, 2025 filing date, screening must be completed before she commences employment under AC21 portability.
O-1A Petition. For Dr. Rohan Deshmukh, whose O-1A extraordinary ability petition targets a July 15, 2025 filing date, deemed export screening must be completed before Dr. Deshmukh enters the United States and commences employment at OWS. Because Dr. Deshmukh is currently in India and will require consular processing of his O-1 visa, there will be a lag between petition approval and his actual arrival in the United States. However, the screening analysis should be completed contemporaneously with the petition preparation so that any necessary BIS license application can be filed in parallel and, ideally, adjudicated before Dr. Deshmukh's start date.
H-1B Extensions. For current H-1B holders with pending or upcoming extensions, re-screening is required upon any change in position, technology access, or worksite. Specific attention is directed to the following:
Takeshi Nakamura: I-94 expired May 31, 2025; H-1B extension filed March 15, 2025 and remains pending. Mr. Nakamura continues employment under the automatic extension provisions of 8 C.F.R. § 274a.12(b)(20). His current deemed export screening should be confirmed as current and accurate.
Chen Xiaoming: H-1B extension due by June 15, 2025 (I-94 expiry August 14, 2025). Extension filing should trigger re-screening, particularly given that Mr. Chen's position as Reliability Engineer involves access to controlled test equipment and specifications.
Arjun Krishnamurthy: H-1B I-94 expiry November 30, 2025. Re-screening upon extension filing, with attention to any changes in technology access related to the Power Management IC Designer role.
Jae-Won Park: H-1B I-94 expiry March 31, 2026. Re-screening upon extension filing.
A comprehensive Coordination Timeline mapping immigration filing deadlines to export control screening completion dates for each beneficiary is provided in Appendix F to this Protocol.
C. BIS Deemed Export License Application Process
When the pre-employment screening workflow determines that a BIS deemed export license is required and OWS elects to pursue the license (rather than restricting the employee's technology access), OWS files a license application through the Bureau of Industry and Security's Simplified Network Application Process — Redesign ("SNAP-R") electronic system.
The deemed export license application must identify the following information:
(a) Applicant: Optiwave Semiconductor Corp., EIN 82-4931076, 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134;
(b) Foreign National Identification: Full legal name, date of birth, country of citizenship, country of birth, passport number, immigration status, and employer identification;
(c) Specific Technology: A detailed description of the technology to be released, including the applicable ECCN(s), a narrative description of the technology's function and significance, and any relevant technical parameters or performance specifications;
(d) End-Use: A description of how the foreign national will use the technology in the course of their employment at OWS, including specific projects, programs, or product lines;
(e) Duration of Access: The anticipated period during which the foreign national will require access to the controlled technology, which should generally correspond to the term of the visa petition or a reasonable planning horizon;
(f) Technology Control Plan: A copy of or reference to OWS's TCP, demonstrating that OWS has implemented appropriate access controls to prevent unauthorized release of controlled technology beyond the scope of the license.
Typical BIS processing time for deemed export license applications is 30 to 90 days from the date of filing, although complex cases or cases involving Country Group D:1 or E country nationals may take longer. BIS license applications are reviewed in accordance with the licensing policy applicable to the specific ECCN and destination country. For national security-controlled items, the general licensing policy is "case-by-case review," meaning that approval is not guaranteed and BIS retains broad discretion to deny applications.
If a license is granted, BIS may impose provisos (conditions) limiting the scope of technology access authorized under the license. Common provisos include: restrictions on the specific technology or product lines covered by the license; requirements that the licensee maintain and update a TCP; annual reporting requirements; requirements for notification of changes in the foreign national's employment status; and limitations on the duration of the license. OWS must comply with all license provisos and must notify BIS of any material changes in the circumstances underlying the license.
If a license is denied, the foreign national employee may not be granted access to the denied technology under any circumstances. OWS must then restructure the employee's position to avoid access to the denied technology, transfer the employee to a role that does not require such access, or, in extreme cases, consider whether continued employment is feasible. A license denial does not affect the employee's immigration status, but it may limit OWS's ability to fully utilize the employee's skills.
OWS should plan its immigration filing and onboarding timelines to account for the possibility of extended BIS processing times or license denials. Calderwood & Harkness will assist OWS in preparing and filing deemed export license applications through the SNAP-R system.
V. RESTRICTED PARTY SCREENING PROCEDURES
A. Required Screening Lists
All foreign national candidates for employment and current foreign national employees of OWS must be screened against the U.S. Government's Consolidated Screening List ("CSL"), which is maintained by the International Trade Administration and encompasses the following component lists:
(a) BIS Entity List (Supplement No. 4 to Part 744 of the EAR): Identifies foreign persons — including businesses, research institutions, government and private organizations, and individuals — that are subject to specific license requirements for the export, reexport, or transfer (in-country) of specified items.
(b) BIS Denied Persons List: Identifies persons who have been denied export privileges by BIS and with whom U.S. persons may not participate in any transaction subject to the EAR.
(c) BIS Unverified List: Identifies persons for whom BIS has been unable to complete an end-use check and who are therefore subject to additional due diligence requirements.
(d) OFAC Specially Designated Nationals and blocked Persons List (SDN): Identifies individuals and entities whose property and interests in property are blocked, and with whom U.S. persons are generally prohibited from engaging in any transaction.
(e) OFAC Sectoral Sanctions Identifications (SSI) List: Identifies persons operating in certain sectors of the economies of sanctioned countries who are subject to prohibitions on certain types of transactions.
(f) State Department AECA Debarred List: Identifies persons who have been statutorily debarred from participating directly or indirectly in the export of defense articles, defense services, or technical data under the Arms Export Control Act.
(g) State Department Nonproliferation Sanctions Lists: Identify foreign persons who have been sanctioned under various nonproliferation authorities.
Screening against all component lists is required at three defined trigger points: (a) pre-hire (before extending an offer of employment or filing a visa petition); (b) annually (as part of the annual compliance audit); and (c) upon any change in name, nationality, or citizenship status.
B. Screening Process
Responsible Party. Day-to-day restricted party screening is the responsibility of Rajesh Anand, Immigration Program Manager, with operational support from Sentinel Background Verification Corp. (Tyler Ng, Account Lead). Calderwood & Harkness LLP provides legal oversight and is responsible for reviewing and resolving any potential matches.
Screening Tools. The primary screening tool is the CSL search function available at trade.gov/consolidated-screening-list, which allows name-based and address-based searches across all component lists simultaneously. This tool is supplemented by the commercial restricted party screening service integrated into Sentinel Background Verification Corp.'s platform, which