CALDERWOOD & HARKNESS LLP
555 South Grand Avenue, 38th Floor Los Angeles, California 90071
101 California Street, 27th Floor San Francisco, California 94111
LCA COMPLIANCE & PUBLIC ACCESS FILE PROCEDURES MANUAL
Prepared for Optiwave Semiconductor Corp.
Prepared by:
Megan Chu, Lead Associate Dr. Lena Marchetti, Of Counsel
Calderwood & Harkness LLP
June 2025
Engagement Reference: SC-OWS-2025-0520-IMM
CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED / ATTORNEY WORK PRODUCT
This document has been prepared by Calderwood & Harkness LLP for the exclusive use of Optiwave Semiconductor Corp. and its authorized representatives. This document contains privileged and confidential information protected by the attorney-client privilege and the work product doctrine. Any unauthorized disclosure, reproduction, or distribution of this document or its contents is strictly prohibited. Receipt of this document by any person other than the intended recipient does not constitute a waiver of any applicable privilege.
Section 1: Purpose and Scope
1.1 Purpose of This Manual
This LCA Compliance & Public Access File Procedures Manual (the "Manual") has been prepared by Calderwood & Harkness LLP for Optiwave Semiconductor Corp. ("OWS" or "Optiwave Semi") in connection with Engagement Reference SC-OWS-2025-0520-IMM. The Manual is designed to establish comprehensive procedures for OWS to maintain full compliance with all Labor Condition Application ("LCA") obligations under the Immigration and Nationality Act ("INA") § 212(n) and the implementing regulations promulgated by the U.S. Department of Labor ("DOL") at 20 C.F.R. Part 655, Subpart H.
The filing and maintenance of Labor Condition Applications is among the most critical compliance obligations facing any employer that sponsors nonimmigrant workers under the H-1B specialty occupation visa classification. Failure to comply with LCA requirements can result in back-pay liability, substantial civil monetary penalties, debarment from participation in the H-1B program, and reputational harm. This Manual is intended to minimize those risks by providing OWS personnel with clear, actionable procedures for every phase of the LCA lifecycle.
Specifically, this Manual is designed to accomplish the following objectives:
(a) Ensure proper creation, maintenance, and accessibility of Public Access Files ("PAFs") at every OWS worksite where H-1B nonimmigrant workers are employed, in full compliance with 20 C.F.R. § 655.760 and related regulatory provisions;
(b) Provide step-by-step procedures for the LCA filing process, including prevailing wage determination, electronic filing via the DOL Foreign Labor Application Gateway ("FLAG") system, and post-certification record keeping;
(c) Establish clear protocols for LCA posting and notice requirements under 20 C.F.R. § 655.734, tailored to OWS's multi-site operational structure;
(d) Address worksite change scenarios governed by the precedential decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), and the short-term placement exception at 20 C.F.R. § 655.735;
(e) Serve as the primary reference document for OWS's Immigration Program Manager, Human Resources department, General Counsel, and external legal counsel in all matters relating to LCA compliance and PAF management; and
(f) Complement other OWS immigration compliance documents, including the H-1B/O-1 Worksite Compliance Policy, the FDNS Site Visit Preparedness Guide & Protocol, and the Employee Immigration Status Tracking Policy.
This Manual should be read in conjunction with those companion documents. Where a particular topic is addressed in greater depth in a companion document, cross-references have been provided. This Manual supersedes all prior LCA compliance guidance previously provided by OWS's former immigration counsel, Whitfield & Parekh LLP, and any informal or ad hoc LCA procedures previously followed by OWS personnel.
1.2 Scope and Applicability
H-1B Nonimmigrant Workers. This Manual applies to all H-1B specialty occupation visa holders currently employed by OWS and to all future H-1B petitions filed by OWS as the petitioning employer. As of the date of this Manual, OWS employs fourteen (14) H-1B nonimmigrant workers across three worksites. A complete roster of current H-1B beneficiaries, together with associated LCA and worksite data, is set forth in Appendix D.
O-1 Nonimmigrant Workers. This Manual does not directly govern O-1A or O-1B visa holders. OWS currently sponsors three (3) O-1A workers and one (1) O-1B worker. The O-1 classification does not require the filing of a Labor Condition Application, and therefore the LCA-specific obligations discussed herein—including PAF maintenance, posting requirements, and prevailing wage attestations—do not apply to O-1 workers as a matter of law. However, certain general compliance principles addressed in this Manual, including wage documentation, working conditions standards, and record-keeping best practices, are noted for cross-reference purposes and may be relevant to OWS's broader immigration compliance program.
Worksite Coverage. This Manual covers all three OWS worksites at which H-1B nonimmigrant workers are currently employed:
Site A — San Jose Headquarters 4820 Veltrano Parkway, Suite 300 San Jose, California 95134 Total employees: 210 H-1B workers at this site: 11 Metropolitan Statistical Area ("MSA"): San Jose-Sunnyvale-Santa Clara, CA
Site B — Austin Design Center 7600 Spectrum Drive, Building 4 Austin, Texas 78729 Total employees: 65 H-1B workers at this site: 2 MSA: Austin-Round Rock-Georgetown, TX
Site C — Portland Test Facility 1425 Northwest Couch Street, Suite 200 Portland, Oregon 97209 Total employees: 40 H-1B workers at this site: 1 MSA: Portland-Vancouver-Hillsboro, OR-WA
Short-Term Placement Sites. In addition to the three permanent OWS worksites identified above, this Manual also addresses the LCA implications of short-term placements at customer and partner data center facilities. OWS engineers periodically travel to third-party sites for the installation, commissioning, and troubleshooting of photonic integrated circuit products. These placements are governed by the short-term placement exception at 20 C.F.R. § 655.735, the requirements and limitations of which are discussed in Section 7 of this Manual.
Remote Workers. OWS currently employs twenty-five (25) remote employees who work from home-based locations in various states. The LCA implications of remote work arrangements are addressed in this Manual with respect to any H-1B workers who may be approved for remote or hybrid work. In general, a home-based work location constitutes a "worksite" for LCA purposes if it is the worker's primary place of employment or if the worker regularly performs work at that location. If an H-1B worker's home-based worksite is located in an MSA different from the MSA listed on the worker's current LCA, a new LCA and an amended H-1B petition may be required. OWS personnel should consult with Calderwood & Harkness before approving any remote work arrangement for an H-1B worker.
1.3 Responsible Personnel
Compliance with LCA obligations is a shared responsibility involving OWS internal personnel and external legal counsel. The following individuals have been assigned specific roles and responsibilities under this Manual:
OWS Internal Personnel:
Rajesh Anand, Immigration Program Manager, OWS — Mr. Anand serves as the day-to-day compliance coordinator for all LCA and immigration-related matters at OWS. He is the primary responsible person for PAF creation, maintenance, and accessibility at the San Jose Headquarters (Site A), and he oversees PAF maintenance at the Austin and Portland worksites in coordination with local HR representatives. Mr. Anand is responsible for initiating LCA posting on the OWS intranet, documenting posting compliance through screenshots, logging PAF inspection requests, and serving as the first point of contact for any worksite change analysis. He reports to the Director of Human Resources.
Samantha Kowalski, Director of Human Resources, OWS — Ms. Kowalski provides HR operations oversight for all immigration compliance functions, including integration of immigration status tracking with OWS's broader HR information systems, I-9 compliance, and coordination of PAF maintenance at the Austin Design Center (Site B) and Portland Test Facility (Site C). She serves as the escalation point for day-to-day immigration compliance issues that cannot be resolved by Mr. Anand and ensures that annual compensation reviews are coordinated with immigration counsel to assess any impact on LCA wage compliance.
Patricia Langford, General Counsel, OWS — Ms. Langford is the senior legal officer at OWS and serves as the ultimate escalation point for all immigration compliance matters. She is responsible for approving immigration-related policies, coordinating the company's response to any government investigation or enforcement action (in consultation with Calderwood & Harkness), and authorizing any litigation holds that may be necessary to preserve immigration-related documents.
Dr. Yun-Sheng Chen, VP of Engineering, OWS — Dr. Chen serves as the primary technical attestation authority for OWS's engineering positions. He provides detailed job duty descriptions for H-1B and O-1 petition support letters, confirms the specialty occupation nature of engineering roles, and acts as the hiring manager for most positions in which H-1B workers are employed. Dr. Chen is also responsible for notifying Rajesh Anand of any planned worksite reassignments or changes in job duties for H-1B engineering staff.
Calderwood & Harkness LLP:
Megan Chu, Lead Associate — Ms. Chu serves as the primary outside counsel responsible for H-1B and O-1 petition preparation, LCA compliance advisory, and day-to-day legal guidance on immigration matters arising under the OWS engagement. She supervises the filing of all LCA applications and H-1B petitions and provides legal review of all PAF documentation.
Dr. Lena Marchetti, Of Counsel — Dr. Marchetti serves as the immigration subject matter expert on the OWS engagement. She provides strategic guidance on complex compliance issues, including multi-site LCA configurations, short-term placement exception analysis, prevailing wage methodology, and responses to government investigations. Dr. Marchetti reviews all Manual updates and policy changes before finalization.
Derek Okonkwo, Working Associate — Mr. Okonkwo provides research and petition support on the OWS engagement, including regulatory analysis, prevailing wage verification, and drafting of support letters and legal memoranda.
Tanya Benavides, Paralegal — Ms. Benavides handles filing logistics and PAF maintenance support, including electronic filing of LCAs on the DOL FLAG system (under the supervision of Megan Chu), organization of PAF documents, coordination of file transfers from prior counsel, and maintenance of the Immigration Status Tracker.
Nathaniel Bower, Responsible Partner — Mr. Bower provides engagement oversight and is available for escalation on matters requiring partner-level attention, including government enforcement actions and significant policy determinations.
1.4 Regulatory Framework Overview
The LCA obligations applicable to H-1B petitioning employers are established by statute and implementing regulation. The principal sources of law governing the procedures set forth in this Manual are as follows:
Statutory Authority. Section 212(n)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1182(n)(1), requires employers seeking to employ H-1B nonimmigrant workers to file a Labor Condition Application with the Secretary of Labor. The LCA requires the employer to make four attestations relating to: (1) wages, (2) working conditions, (3) strike or lockout activity, and (4) notice to workers. These attestations form the foundation of the employer's compliance obligations throughout the period of the H-1B worker's employment.
Implementing Regulations. The DOL has promulgated detailed regulations implementing the LCA requirements at 20 C.F.R. Part 655, Subpart H — "Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B visas in Specialty Occupations and as Fashion Models, and Requirements for Employers Using Nonimmigrants on H-1B1 visas in Specialty Occupations." The key regulatory provisions relevant to this Manual are:
• 20 C.F.R. § 655.730 — Filing requirements for Labor Condition Applications, including general information about the LCA filing process and the obligation to file electronically via the FLAG system.
• 20 C.F.R. § 655.731 — Wage obligations, including the requirement that the employer pay H-1B workers the higher of the actual wage paid to similarly employed workers or the prevailing wage for the occupational classification in the area of intended employment.
• 20 C.F.R. § 655.732 — Working conditions obligations, including the requirement that the employment of H-1B workers not adversely affect the working conditions of similarly employed U.S. workers.
• 20 C.F.R. § 655.733 — Strike/lockout attestation, prohibiting the filing of an LCA or the employment of H-1B workers during a strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment.
• 20 C.F.R. § 655.734 — Notice and posting requirements, specifying the methods and timing for providing notice of the LCA filing to workers at the worksite.
• 20 C.F.R. § 655.735 — Short-term placement exception, establishing conditions under which an employer may place an H-1B worker at a worksite location not covered by the current LCA without filing a new LCA.
• 20 C.F.R. § 655.736 — Additional attestation obligations for H-1B dependent employers, including attestations regarding displacement and recruitment of U.S. workers.
• 20 C.F.R. § 655.760 — Public Access File requirements, specifying the documents that must be included in the PAF and the employer's obligation to make the PAF available for public inspection.
• 20 C.F.R. § 655.765 — Investigations and enforcement, addressing the DOL's authority to investigate employers for LCA compliance and the penalties for violations.
USCIS Regulatory Authority. The USCIS regulations governing H-1B petitions are found at 8 C.F.R. § 214.2(h). These regulations require that a certified LCA be submitted with every H-1B petition (Form I-129) and establish the requirement for amended petitions when material changes occur, including worksite changes as addressed by Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).
OWS H-1B Non-Dependent Employer Status. An employer is classified as "H-1B dependent" under 20 C.F.R. § 655.736 if it employs H-1B workers in a proportion that exceeds specified thresholds based on total workforce size. For employers with more than 51 full-time equivalent employees, the threshold is 15 percent. OWS currently employs fourteen (14) H-1B workers out of a total workforce of approximately 340 employees, resulting in an H-1B workforce ratio of approximately 4.12 percent. This is well below the 15 percent threshold for H-1B dependency. Accordingly, the additional attestation obligations applicable to H-1B dependent employers under 20 C.F.R. § 655.736—including attestations regarding non-displacement of U.S. workers and good-faith recruitment—do not currently apply to OWS. This status should be recalculated whenever OWS's total headcount or the number of H-1B workers changes materially, and in any event at the time of each new LCA filing.
Section 2: LCA Filing Procedures
2.1 Overview of the LCA Process
The Labor Condition Application is the foundational document underlying every H-1B petition. An LCA must be filed with and certified by the U.S. Department of Labor, Office of Foreign Labor Certification ("OFLC"), before any H-1B petition—whether an initial petition, an extension, a transfer (change of employer), or an amendment—is submitted to U.S. Citizenship and Immigration Services ("USCIS") on Form I-129, Petition for a Nonimmigrant Worker.
The LCA is filed electronically through the DOL's Foreign Labor Application Gateway ("FLAG") system, which replaced the legacy iCERT system. The employer uses Form ETA 9035/9035E to make the required attestations. Upon submission, the DOL reviews the LCA for completeness and, barring any apparent errors or inconsistencies, certifies the LCA, typically within seven (7) business days.
By filing the LCA, the employer makes four core attestations:
(1) Wages. The employer will pay the H-1B worker the higher of the actual wage paid to similarly employed workers at the worksite or the prevailing wage for the occupational classification in the area of intended employment, as determined using approved wage sources.
(2) Working Conditions. The employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed at the worksite. H-1B workers will be offered working conditions—including hours, shifts, vacations, benefits, and access to facilities—on the same basis as comparable U.S. workers.
(3) No Strike/Lockout. At the time of the LCA filing, there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment.
(4) Notice. The employer has provided notice of the LCA filing to workers employed in the occupational classification at the worksite, either through workplace posting or through notification to the workers' collective bargaining representative.
Once certified, the LCA is valid for the period of employment and the worksites specified on the application. The certified LCA must be submitted to USCIS as part of the I-129 petition package. Importantly, the LCA is worksite-specific and occupation-specific; any material change in the worksite, occupational classification, or wage may require a new LCA and an amended or new H-1B petition.
2.2 When an LCA Must Be Filed
An LCA must be filed and certified before the filing of the associated I-129 petition in each of the following circumstances:
New H-1B Petition (Initial or Cap-Subject). Whenever OWS files an initial H-1B petition for a new beneficiary—whether the petition is cap-subject (requiring selection through the annual H-1B lottery) or cap-exempt—a new LCA must be filed and certified before the I-129 is submitted to USCIS.
H-1B Extension. When OWS seeks to extend an existing H-1B worker's status, a new LCA is required if the prior LCA has expired or will expire before the end of the requested extension period, or if any material change in the worksite, wages, or working conditions has occurred since the prior LCA was certified. Even if the prior LCA remains nominally valid, best practice is to file a new LCA with each extension petition to ensure that all attestations are current.
H-1B Transfer (Change of Employer). When OWS files an H-1B transfer petition to employ a worker who is currently in H-1B status with a different employer, a new LCA must always be filed by OWS as the new petitioning employer. The prior employer's LCA cannot be used by OWS.
H-1B Amendment. A new LCA is required whenever an H-1B worker's employment undergoes a material change that affects any of the attestations made on the current LCA. Material changes requiring a new LCA include, but are not limited to:
(a) Change in worksite location outside the Metropolitan Statistical Area ("MSA") or area of intended employment listed on the current LCA. Pursuant to the precedential decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), such a change requires not only a new LCA but also an amended H-1B petition filed with USCIS. This requirement is discussed in detail in Section 6 of this Manual.
(b) Change in Standard Occupational Classification ("SOC") code or occupational classification, reflecting a change in the nature of the position or the worker's duties.
(c) Decrease in wages offered to the H-1B worker below the wage level specified on the current LCA.
(d) Change from full-time to part-time or vice versa, as this constitutes a material change in the terms of employment.
OWS managers and supervisors should refer to the H-1B/O-1 Worksite Compliance Policy for additional guidance on identifying amendment triggers and should notify Rajesh Anand immediately upon becoming aware of any change that may require action.
2.3 Pre-Filing: Prevailing Wage Determination
Before filing any LCA, OWS must determine the prevailing wage for the H-1B position in the applicable area of intended employment. The prevailing wage is the wage paid to workers in the same or similar occupational classification in the geographic area where the H-1B worker will be employed. The employer's obligation is to pay the H-1B worker the higher of the actual wage or the prevailing wage; therefore, accurate prevailing wage determination is essential to ensuring compliance.
Wage Sources. The DOL recognizes several sources for prevailing wage data. OWS uses the following sources, listed in order of preference:
Primary Source: DOL Online Wage Library. The DOL Online Wage Library, which draws on the Bureau of Labor Statistics' Occupational Employment and Wage Statistics ("OEWS," formerly "OES") survey data, is the most commonly used and most straightforward source for prevailing wage determination. The wage data is organized by SOC code, wage level (I through IV), and geographic area. OWS uses the DOL Online Wage Library as the primary wage source for all LCA filings.
Alternative Source: Private Wage Survey. A private wage survey may be used as an alternative to the OES data if the survey meets the DOL's validity criteria, including that it was conducted by an independent authoritative source, reflects wages paid in the area of intended employment for the specific occupational classification, and was collected within the 24-month period preceding the LCA filing date.
Alternative Source: National Prevailing Wage Center (NPWC) Determination. An employer may submit a prevailing wage determination request to the NPWC, which will issue a formal prevailing wage determination based on OES data or other approved sources. NPWC determinations are particularly useful in cases where the appropriate SOC code or wage level is uncertain. However, NPWC processing times can be lengthy (typically four to six months), so this option should be pursued well in advance of the LCA filing date if it is to be used.
SOC Codes Used by OWS
Based on a review of the job duties, educational requirements, and experience levels of OWS's current H-1B positions, the following SOC codes have been identified as applicable:
The SOC code 17-2199.08 (Photonics Engineers) is a detailed occupation within the broader 17-2199 (Engineers, All Other) classification. Prevailing wage data for SOC 17-2199 is used when SOC 17-2199.08-specific data is not available in the OES survey.
Wage Level Assignment
The appropriate wage level (Level I through Level IV) is determined based on the complexity of the job duties, the degree of supervisory responsibility, the level of independent judgment and decision-making required, and the minimum experience and educational qualifications for the position. The four wage levels correspond to the following general categories:
• Level I (Entry): Positions requiring a basic understanding of the occupation. Workers perform routine tasks under close supervision.
• Level II (Qualified): Positions requiring a moderate level of experience and independent judgment. Workers perform moderately complex tasks with limited supervision.
• Level III (Experienced): Positions requiring a high level of expertise and significant independent judgment. Workers plan and conduct work requiring judgment in the independent evaluation, selection, and adaptation of standard techniques and procedures.
• Level IV (Fully Competent): Positions requiring the highest level of expertise. Workers exercise a high degree of independent judgment and use advanced skills to solve complex problems and develop new techniques.
OWS engineering roles typically map to Level III or Level IV, reflecting the advanced technical expertise, independent judgment, and specialized knowledge required for photonic integrated circuit design, verification, and testing. Two junior roles have been classified at Level II under SOC code 15-1211, reflecting the reduced complexity and closer supervision associated with those positions.
Supporting documentation for prevailing wage analysis may be obtained from Pendleton Accounting Group LLP (engagement partner: Marcus Hensley, CPA), which provides audited financial data and compensation benchmarking in connection with OWS's broader financial reporting and employment compliance needs.
OWS Actual Offered Wages
All current OWS H-1B workers are compensated at levels that exceed the applicable prevailing wages. The following table summarizes the actual offered wages for representative H-1B and O-1 positions:
The Principal Engineer and Staff Designer positions are included for reference only, as the O-1 classification does not require LCA filings. However, the compensation data for these positions is relevant to the actual wage analysis for H-1B workers in similar occupational classifications.
OWS's commitment to compensating H-1B workers well above the prevailing wage reflects the company's competitive compensation philosophy and its recognition of the specialized skills required in the semiconductor and photonics industry. This practice also provides a substantial compliance margin, reducing the risk that wage changes, currency fluctuations in RSU valuations, or prevailing wage updates could create compliance issues.
Multi-Worksite Wage Analysis
Because OWS employs H-1B workers at worksites in three different MSAs, separate prevailing wage determinations are required for each MSA. The prevailing wage for a given SOC code and wage level may differ significantly across MSAs due to regional cost-of-living and labor market variations. The three MSAs relevant to OWS's current operations are:
• San Jose-Sunnyvale-Santa Clara, CA MSA (covering Site A — San Jose Headquarters). Prevailing wages for this MSA are among the highest in the nation for technology and engineering positions, reflecting the high cost of living and competitive labor market in the Silicon Valley region. Prevailing wage data for this MSA is set forth in the table above and in Appendix E.
• Austin-Round Rock-Georgetown, TX MSA (covering Site B — Austin Design Center). Prevailing wages for engineering positions in the Austin MSA are generally lower than in the San Jose MSA, though they have increased substantially in recent years due to the growth of the technology sector in the Austin area.
• Portland-Vancouver-Hillsboro, OR-WA MSA (covering Site C — Portland Test Facility). Prevailing wages for the Portland MSA typically fall between those of the San Jose and Austin MSAs for most engineering classifications.
When an H-1B worker is assigned to a worksite in a particular MSA, the prevailing wage for that MSA governs the wage obligation on the LCA. If a worker is reassigned from one MSA to another—for example, from San Jose to Austin—a new prevailing wage determination must be obtained for the new MSA, a new LCA must be filed, and an amended H-1B petition must be submitted to USCIS. The employer must pay the higher of the actual wage or the prevailing wage for the new MSA. Even if the prevailing wage in the new MSA is lower, the actual wage paid to the worker may not be decreased without filing a new LCA reflecting the wage change.
Austin and Portland MSA prevailing wages are to be confirmed and added to Appendix E upon the filing of new LCAs for those worksites. A separate OES data lookup is required for each MSA.
2.4 FLAG System Filing Procedures
All LCAs are filed electronically through the DOL Foreign Labor Application Gateway ("FLAG") system at https://flag.dol.gov. The FLAG system is the exclusive method for LCA filing; paper filings are no longer accepted. The following step-by-step procedures govern the electronic filing of LCAs for OWS:
Step 1: Data Collection. Tanya Benavides (paralegal, Calderwood & Harkness) coordinates with Rajesh Anand to collect all required employer-side data inputs, including: the beneficiary's name and biographical information, the position title, the SOC code and occupational classification, the wage level, the offered wage (base salary), the period of employment, and the worksite address(es). Rajesh Anand provides this information using the standard data intake form maintained by Calderwood & Harkness.
Step 2: Prevailing Wage Verification. Before filing, Megan Chu or Derek Okonkwo verifies the prevailing wage for the applicable SOC code, wage level, and MSA using the DOL Online Wage Library, and confirms that the offered wage meets or exceeds the higher of the actual wage and the prevailing wage.
Step 3: FLAG System Entry. Tanya Benavides enters the required data into the FLAG system under the supervision of Megan Chu. Required data fields include:
• Employer information: Optiwave Semiconductor Corp.; Federal Employer Identification Number (FEIN): 82-4931076; NAICS Code: 334413 (Semiconductor and Related Device Manufacturing); address: 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134
• Job title and occupational classification (SOC code and title)
• Wage level and wage rate offered
• Number of H-1B workers covered by the LCA
• Period of employment (start and end dates)
• Worksite address(es) in the applicable MSA
• Attestation responses (wages, working conditions, no strike/lockout, notice)
• H-1B non-dependency status attestation (OWS is non-dependent; 4.12% H-1B workforce)
Step 4: Review and Submission. Before submitting the LCA, Megan Chu reviews all data entries for accuracy and completeness. Upon confirmation, the LCA is submitted electronically through the FLAG system.
Step 5: DOL Processing and Certification. The DOL typically processes and certifies LCAs within seven (7) business days of submission. Upon certification, the system generates a certified ETA Form 9035/9035E, which is downloaded and retained.
Filing Timeline. The LCA should be filed at least seven to ten (7–10) business days before the intended I-129 petition filing date to allow for DOL processing and the concurrent ten (10) business-day posting period. Earlier filing is recommended when possible to provide a buffer for any unforeseen delays or corrections.
Confirmation and Retention. The filing confirmation and the certified LCA (ETA Form 9035/9035E) must be retained as part of OWS's immigration records and included in the Public Access File. See Section 2.5 below.
Responsible Personnel. Tanya Benavides files the LCA under the supervision of Megan Chu. Rajesh Anand provides all employer-side data inputs and confirms the accuracy of worksite and wage information. Questions regarding SOC code assignment, wage level determination, or other substantive LCA issues should be directed to Megan Chu or Dr. Lena Marchetti.
2.5 Post-Certification: LCA Record Keeping
Upon certification of the LCA by the DOL, the following record-keeping procedures must be followed:
Inclusion in I-129 Petition. The certified LCA (ETA Form 9035/9035E) must be included as part of the I-129 petition package submitted to USCIS. Tanya Benavides is responsible for ensuring that the certified LCA is incorporated into the petition filing.
Public Access File. A copy of the certified LCA must be placed in the Public Access File at the applicable worksite, as described in Section 4. This copy must match the LCA filed with the DOL and submitted to USCIS. Rajesh Anand is responsible for ensuring that the PAF copy is filed promptly upon certification.
Central Immigration Files. A copy of all certified LCAs—both active and expired—must be retained in the central immigration files maintained by Rajesh Anand at the San Jose Headquarters. These files are organized by beneficiary name and arranged chronologically by LCA certification date.
Electronic Storage. Electronic copies of all certified LCAs are stored in the OWS immigration document management system (hosted on OWS's secure HR server), with access limited to authorized personnel as described in Section 5.2. A backup copy of all electronic LCA records is provided to Calderwood & Harkness and maintained in the firm's secure document management system.
Tracking. Each certified LCA is logged in the Immigration Status Tracker maintained by Rajesh Anand, with entries recording the LCA case number, certification date, validity period, associated beneficiary name, worksite, SOC code, wage level, and the corresponding I-129 receipt number (added upon USCIS filing).
Section 3: LCA Posting and Notice Requirements
3.1 Regulatory Basis
Under 20 C.F.R. § 655.734, the employer must provide notice of the LCA filing to workers employed in the occupational classification at the worksite where the H-1B worker will be employed. The purpose of the notice requirement is to inform the existing workforce of the employer's intent to employ H-1B workers and to provide workers with information necessary to file complaints with the DOL if they believe the employer is not meeting its LCA obligations.
The regulations provide two permissible methods for satisfying the notice requirement:
(a) Hard copy posting. The employer may post a notice in two conspicuous locations at the worksite where the H-1B worker will be employed for a period of ten (10) consecutive business days.
(b) Electronic notification. The employer may provide electronic notification of the LCA filing through the employer's intranet, website, or electronic bulletin board, provided that the notification is visible to all employees at the worksite for a period of ten (10) consecutive business days.
If the workers in the occupational classification are represented by a collective bargaining representative, notice must be provided directly to the bargaining representative rather than by posting.
OWS has elected to use electronic posting on the OWS internal company intranet as its primary method of satisfying the LCA notice requirement for all worksites. This election is consistent with the regulatory requirements and is documented in this Manual.
3.2 Electronic Posting Procedures
The following procedures govern the electronic posting of LCA notices on the OWS intranet:
Method of Posting. Each LCA notice is posted on the designated "Immigration Notices" section of the OWS internal company intranet. The "Immigration Notices" section is accessible to all OWS employees at all three worksites (San Jose, Austin, and Portland) through their standard intranet login credentials. The posting consists of either: (i) a copy of the certified LCA (ETA Form 9035/9035E), or (ii) a notice containing all of the information required by 20 C.F.R. § 655.734. A sample posting notice template is provided in Appendix A.
Duration of Posting. The posting must remain visible and accessible on the OWS intranet for a minimum of ten (10) consecutive business days. For purposes of this Manual, "business days" means Monday through Friday, excluding federal holidays and any days on which the OWS offices are closed. The posting should not be removed before the completion of the full ten (10) business-day period.
Timing of Posting. The posting must begin on or before the date the LCA is filed with the DOL, or no later than thirty (30) days before the date the H-1B petition (Form I-129) is filed with USCIS. In practice, OWS's procedure is to post the LCA notice on the OWS intranet on the same day the LCA is filed with the DOL through the FLAG system. This ensures that the ten (10) business-day posting period runs concurrently with the DOL processing period, minimizing delays in the overall petition timeline.
Content of Posting/Notice. The LCA posting or notice must include all of the following information, as required by 20 C.F.R. § 655.734(a)(1):
(i) The number of H-1B workers sought under the LCA;
(ii) The occupational classification (SOC code and title) in which the H-1B workers will be employed;
(iii) The wages offered to the H-1B workers;
(iv) The period of employment covered by the LCA;
(v) The worksite location(s) at which the H-1B workers will be employed;
(vi) A statement that the LCA is available for public inspection at the employer's principal place of business or at the worksite; and
(vii) The address at which complaints may be filed with the DOL Wage and Hour Division. The complaint address is: U.S. Department of Labor, Wage and Hour Division, 200 Constitution Avenue NW, Room S-3502, Washington, DC 20210; or the applicable regional WHD office.
Location on Intranet. The LCA notice is posted in the designated "Immigration Notices" section of the OWS intranet, which is accessible from the main navigation menu under "Human Resources" → "Immigration Notices." This section is accessible to all OWS employees with intranet login credentials, regardless of their worksite location.
Documentation of Posting. Rajesh Anand is responsible for documenting the posting of each LCA notice by taking a screenshot of the posting on the OWS intranet on the first day of the ten (10) business-day posting period and on the last day of the posting period (or any day thereafter while the posting remains visible). Each screenshot must be annotated with the date and time of the screenshot, the LCA case number (or the beneficiary's name if the LCA has not yet been certified), and the worksite(s) covered. These annotated screenshots are retained in the Public Access File for the applicable LCA as evidence of posting compliance.
It is recommended that Rajesh Anand set a calendar reminder on the first day of posting (to take the initial screenshot) and on the tenth business day of posting (to take the final screenshot and confirm that the posting remained visible for the full period).
3.3 Posting at Each Worksite
Although OWS has elected electronic posting as its primary notice method, OWS must ensure that the intranet notice is accessible to all employees at all three worksites. Because the OWS intranet is a centralized system accessible to all employees regardless of location, a single electronic posting satisfies the notice requirement for all worksites. However, the following worksite-specific considerations apply:
Site A — San Jose Headquarters (11 H-1B workers). All San Jose employees have individual workstations with intranet access. No additional posting measures are required.
Site B — Austin Design Center (2 H-1B workers). All Austin employees have individual workstations with intranet access. No additional posting measures are required.
Site C — Portland Test Facility (1 H-1B worker). The Portland Test Facility includes certain laboratory and testing areas where employees may not have continuous access to computer workstations during their shifts. If any employees at the Portland facility lack regular intranet access during normal working hours, a hard copy of the LCA notice must be posted in two conspicuous locations at the Portland facility for ten (10) consecutive business days. Conspicuous locations include common areas such as the employee break room, the reception area, or areas near time clocks or employee notice boards. Rajesh Anand and the Portland site HR representative should assess whether hard copy posting is necessary at the Portland facility and implement it as needed.
Samantha Kowalski is responsible for confirming that employees at the Austin and Portland worksites have access to the OWS intranet and for coordinating any supplemental hard copy posting that may be required.
3.4 Union / Bargaining Representative Notice
OWS does not currently have a collective bargaining representative for any job classification in which H-1B workers are employed. None of OWS's approximately 340 employees are represented by a labor union. Accordingly, the notice requirement is satisfied through the electronic posting method described above, rather than through direct notice to a bargaining representative.
If a collective bargaining representative is later certified for any occupational classification in which OWS employs H-1B workers, the notice requirements would change. In that event, notice of each LCA filing would need to be provided directly to the bargaining representative rather than by posting. The notice would need to contain the same information elements listed in Section 3.2 above and would need to be provided on or before the date the LCA is filed with the DOL. OWS should immediately notify Calderwood & Harkness if any union organizing activity occurs or if a bargaining representative is certified for any OWS employee classification.
3.5 Common Posting Errors to Avoid
Based on Calderwood & Harkness's experience with LCA compliance audits and DOL investigations, the following are common posting errors that OWS personnel should take care to avoid:
• Posting for fewer than ten (10) consecutive business days. The posting must remain visible for the full ten (10) business-day period. Removing or disabling the posting before the expiration of this period, even inadvertently (e.g., due to a system update or website redesign), constitutes a violation. If the posting is interrupted, the ten (10) business-day period must restart from the beginning.
• Failing to include all required information elements. Each notice must contain every piece of information specified in 20 C.F.R. § 655.734(a)(1). Omitting any element—such as the DOL WHD complaint address or the statement regarding public inspection of the LCA—renders the notice deficient.
• Posting after the LCA filing date. The posting must be contemporaneous with or prior to the LCA filing. Initiating the posting after the LCA has already been filed with the DOL does not satisfy the regulatory requirement. Posting should begin on the same day the LCA is filed, or earlier.
• Failing to document the posting with screenshots or other evidence. Without documentary evidence of the posting, OWS cannot demonstrate compliance in the event of a DOL investigation or site visit. Screenshots with date and time stamps are the minimum acceptable evidence.
• Removing the posting prematurely. There is no harm in leaving the posting visible beyond the ten (10) business-day minimum. Removing it prematurely creates compliance risk. OWS's recommended practice is to leave postings visible on the intranet for at least fifteen (15) business days to provide a margin of safety.
Section 4: Public Access File (PAF) Requirements
4.1 Regulatory Basis and Purpose
Under 20 C.F.R. § 655.760, every employer that files a Labor Condition Application is required to develop and maintain a Public Access File ("PAF") for each LCA. The PAF must contain specified documents relating to the employer's LCA attestations and must be made available for public examination within one (1) working day of a request.
The purpose of the PAF requirement is to promote transparency and to provide an enforcement mechanism through which workers, labor organizations, and members of the public can independently verify the employer's compliance with the LCA attestations. The PAF is a critical compliance document, and failure to maintain a complete and current PAF can result in penalties even in the absence of any underlying wage or working conditions violation.
The PAF is separate from the I-129 petition file and from the employer's internal immigration records, although many of the same documents may appear in both. The PAF is specifically designed to be accessible to the public and should not contain confidential information—such as individual employees' Social Security numbers, passport numbers, or other personally identifiable information—beyond what is required by the regulations.
4.2 Location of PAFs
The regulations require that a PAF be maintained at the employer's principal place of business or at the worksite where the H-1B worker is employed. OWS maintains PAFs at each of its three worksites, as follows:
Site A — San Jose Headquarters (Primary PAF Location)
Address: 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134
This is the primary PAF location for all San Jose-based H-1B workers. As OWS's principal place of business and the worksite for eleven (11) H-1B workers, the San Jose Headquarters maintains the most comprehensive collection of PAF documentation. Rajesh Anand serves as the custodian of PAFs at this location and maintains both hard-copy and electronic PAF files.
Current H-1B workers covered by Site A PAFs: Dr. Ankit Mehrotra, Wei-Lin Tsai, Sunita Raghavan, Jae-Won Park, Oleksandr Kovalenko, Takeshi Nakamura, Dmitri Volkov, Hyun-Soo Kim, Chen Xiaoming, Fatima Al-Rashidi, and Arjun Krishnamurthy.
Site B — Austin Design Center
Address: 7600 Spectrum Drive, Building 4, Austin, TX 78729
The Austin Design Center maintains PAFs for the two H-1B workers based at that location. Samantha Kowalski coordinates PAF maintenance at this site through the Austin site HR representative.
Current H-1B workers covered by Site B PAFs: Maria Fernanda Salinas and Rania El-Masri.
Site C — Portland Test Facility
Address: 1425 Northwest Couch Street, Suite 200, Portland, OR 97209
The Portland Test Facility maintains a PAF for the one H-1B worker based at that location. Samantha Kowalski coordinates PAF maintenance at this site through the Portland site HR representative.
Current H-1B worker covered by Site C PAF: Priya Venkataraman.
Electronic PAFs. In addition to the hard-copy PAFs maintained at each worksite, OWS maintains electronic PAFs on the OWS secure HR document management server. The electronic PAFs mirror the contents of the hard-copy PAFs and serve as backup copies. Both hard-copy and electronic PAFs are considered the employer's official records and must be maintained with the same level of completeness and accuracy. In the event of a public inspection request, either the hard-copy or the electronic version may be made available, provided that the requesting party is able to review the documents within one (1) working day.
4.3 Required Contents of Each PAF
For each certified LCA, the PAF must contain the following categories of documents. Failure to include any required category constitutes a PAF deficiency that may result in penalties upon investigation.
4.3.1 Certified LCA (ETA Form 9035/9035E)
The PAF must contain a complete copy of the certified LCA (ETA Form 9035/9035E), including all pages and any attachments or addenda. The certified LCA in the PAF must be an exact match of the LCA that was filed with the DOL and submitted to USCIS as part of the I-129 petition. If multiple LCAs have been filed for the same beneficiary or the same position at the same worksite (e.g., due to extensions or amendments), each certified LCA should be included in the PAF.
The certified LCA should bear the DOL certification stamp, case number, and certification date. Electronic copies of the certified LCA downloaded from the FLAG system are acceptable for PAF purposes, provided they are legible and complete.