CALDERWOOD & HARKNESS LLP
Immigration & Global Mobility Practice Group
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the use of the individuals identified herein and should not be disclosed to any third party without the prior written consent of Calderwood & Harkness LLP.
MEMORANDUM
TO: Nathaniel Bower, Responsible Partner, Calderwood & Harkness LLP Megan Chu, Lead Associate, Calderwood & Harkness LLP
FROM: Derek Okonkwo, Working Associate, Calderwood & Harkness LLP
CC: Dr. Lena Marchetti, Of Counsel, Calderwood & Harkness LLP Tanya Benavides, Paralegal, Calderwood & Harkness LLP
DATE: May 30, 2025
RE: LCA Filing Checklist & Prevailing Wage Analysis — FY2026 H-1B Cap Petitions for Optiwave Semiconductor Corp.
ENGAGEMENT REF: SC-OWS-2025-0520-IMM
PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT
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I. PURPOSE AND SCOPE
This memorandum provides a comprehensive prevailing wage analysis and Labor Condition Application ("LCA") filing checklist for the five FY2026 H-1B cap-subject petitions to be filed on behalf of Optiwave Semiconductor Corp. ("OWS" or the "Company"), FEIN 82-4931076, a Delaware corporation headquartered at 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134. The memorandum is intended to serve as a working reference document for the engagement team at Calderwood & Harkness LLP and to memorialize the analytical basis for the SOC code classifications, wage level assignments, and regulatory compliance determinations underlying each LCA filing.
OWS has identified five candidates who were selected in the FY2026 H-1B lottery. The H-1B electronic registration for these candidates was submitted on March 7, 2025, and selection results were released by USCIS on April 1, 2025. The five selected candidates are:
1. Naveen Sharma — Photonics Process Engineer
2. Yuki Tanaka — Analog Design Engineer
3. Ekaterina Solovyova — Verification Engineer
4. Ahmed Hassan — Thermal Engineer
5. Min-Jun Lee — EDA Tools Developer
All five candidates are currently maintaining F-1 Optional Practical Training ("OPT") status, and all are designated for placement at OWS's San Jose, California headquarters (Site A). Their requested H-1B start date is October 1, 2025, coinciding with the start of FY2026.
The filing deadline for these cap-subject petitions is June 30, 2025, representing the 60-day filing window measured from the April 1, 2025 selection notification date. All LCAs must be certified by the U.S. Department of Labor ("DOL") before the corresponding I-129 petitions can be filed with U.S. Citizenship and Immigration Services ("USCIS"). To allow adequate certification lead time — DOL FLAG system processing typically requires five to seven business days — the target date for LCA submission to the DOL FLAG system is June 10, 2025. This provides a buffer of approximately two weeks between anticipated LCA certification and the I-129 filing deadline.
In addition to the five cap-subject petitions, this memorandum addresses, for completeness, the wage analysis considerations applicable to two cap-exempt H-1B transfer petitions that OWS intends to file later in 2025. Those transfers involve Dr. Kenji Watanabe (target filing date: August 1, 2025) and Dr. Ingrid Halvorsen (target filing date: September 30, 2025). Separate LCAs will be filed for those transfers closer to their respective target dates, but the prevailing wage data referenced herein provides an initial benchmark. This memorandum also includes supplemental wage data for the Austin-Round Rock-Georgetown, TX MSA, as certain candidates may be subject to future worksite changes requiring amended LCAs and corresponding wage analyses for that metropolitan statistical area.
Finally, this memorandum briefly addresses the O-1A petition for Dr. Rohan Deshmukh, noting that O-1 petitions do not require an LCA or prevailing wage determination, but that compensation documentation may be relevant to the evidentiary framework for extraordinary ability.
II. EMPLOYER PROFILE — OPTIWAVE SEMICONDUCTOR CORP.
A. Company Overview
Optiwave Semiconductor Corp. ("OWS") is a Delaware corporation organized on March 14, 2017, and qualified to do business in the States of California, Texas, and Oregon. The Company's Federal Employer Identification Number is 82-4931076. OWS is classified under North American Industry Classification System ("NAICS") Code 334413 — Semiconductor and Related Device Manufacturing.
OWS is principally engaged in the design and fabrication of photonic integrated circuits ("PICs") for high-bandwidth data center interconnect applications. The Company's core technology platform combines silicon photonics with proprietary analog/mixed-signal circuitry to produce transceiver modules capable of operating at data rates exceeding 800 Gbps per lane. OWS's product portfolio serves hyperscale cloud service providers, telecommunications infrastructure companies, and enterprise networking OEMs.
The Company's corporate headquarters are located at 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134, where the majority of its engineering workforce is based. OWS also maintains a photonic IC design center in Austin, Texas, and a semiconductor test and characterization facility in Portland, Oregon.
For fiscal year 2024, OWS reported annual revenue of approximately $187.4 million, based on audited financial statements prepared by Pendleton Accounting Group LLP (engagement partner: Marcus Hensley, CPA). This represents a year-over-year revenue increase of approximately 28.3% from FY2023, reflecting strong growth in demand for 800G and next-generation 1.6T optical transceiver modules.
OWS's majority shareholder is Crestline Ventures Fund IV, LP, which holds a 62.4% equity interest in the Company, acquired through a Series C financing round that closed on September 15, 2022. The remaining equity is held by founders, employees (through an equity incentive plan), and minority institutional investors. OWS has not undergone an initial public offering and remains privately held.
B. Employee Headcount & H-1B Dependency Status
As of the date of this memorandum, OWS employs approximately 340 full-time equivalent ("FTE") employees across its three physical locations and a remote workforce. The workforce distribution is as follows:
OWS currently sponsors 14 H-1B nonimmigrant workers across its three physical locations. This yields an H-1B workforce percentage of:
14 ÷ 340 = 4.12%
Under the Immigration and Nationality Act ("INA") § 212(n)(3) and 20 CFR § 655.736, an employer with 51 or more full-time equivalent employees is classified as "H-1B dependent" if 15% or more of its workforce consists of H-1B workers. OWS's H-1B workforce percentage of 4.12% is well below the 15% threshold, and accordingly, OWS is classified as a non-dependent employer for LCA purposes.
The practical consequence of this non-dependent status is significant: OWS is not required to make the additional LCA attestations set forth in INA § 212(n)(1)(E) and (F) regarding displacement of U.S. workers, secondary displacement through placement at other employers' worksites, or recruitment of U.S. workers prior to offering positions to H-1B beneficiaries. This simplifies both the LCA preparation process and the ongoing compliance obligations.
It should be noted that even after the five FY2026 cap-subject H-1B petitions are approved and the two cap-exempt transfers are completed, OWS's H-1B workforce would increase to a maximum of 21 out of an expected workforce of approximately 345–355 employees, yielding an H-1B percentage of approximately 5.9%–6.1% — still well below the 15% threshold. OWS's non-dependent status is not at risk in the near term.
C. E-Verify Enrollment
OWS is enrolled in the E-Verify program administered by the U.S. Department of Homeland Security in partnership with the Social Security Administration. OWS's E-Verify Company Identification Number is 1487623. The Company's E-Verify enrollment is administered through coordination with Sentinel Background Verification Corp., a third-party employment verification services provider. The account lead at Sentinel is Tyler Ng, who is responsible for day-to-day E-Verify case management.
While E-Verify enrollment is not a prerequisite for H-1B sponsorship, it is relevant to the broader immigration compliance profile of the employer and is required for certain employer-related filings and verifications. OWS's active enrollment status should be noted in the employer profile section of each I-129 petition.
D. Worksite Information
OWS maintains three physical worksites, each located within a distinct metropolitan statistical area. The following table summarizes the worksite designations, physical addresses, applicable MSAs, and current H-1B worker distribution:
All five FY2026 cap-subject candidates are designated for initial placement at Site A (San Jose). Accordingly, the prevailing wage analysis in this memorandum focuses primarily on the San Jose-Sunnyvale-Santa Clara, CA MSA. However, this memorandum includes supplemental wage data for the Austin-Round Rock-Georgetown, TX MSA for reference, in the event that any of the five candidates are reassigned to Site B at a future date. Any such reassignment would require a new LCA and an amended I-129 petition under the Matter of Simeio Solutions framework, as discussed in Section X below.
III. FY2026 H-1B CAP-SUBJECT SELECTED CANDIDATES — SUMMARY
The following table presents a summary of the five beneficiaries selected in the FY2026 H-1B lottery, including their target positions, applicable SOC codes, proposed worksites, current immigration status, and lottery selection confirmation:
The requested H-1B employment start date for all five candidates is October 1, 2025, the first day of federal fiscal year 2026. All five candidates are currently employed by OWS in their respective positions under OPT or OPT STEM Extension employment authorization. Their transition to H-1B status will not involve a change in job duties, compensation, or worksite — the H-1B petition is sought solely to provide a longer-term nonimmigrant work authorization basis.
OWS has elected to file all five petitions with Premium Processing via Form I-907, which guarantees an initial USCIS adjudicatory action (approval, denial, or request for evidence) within 15 business days of receipt. The Premium Processing fee is $2,805 per petition. The decision to utilize Premium Processing reflects OWS's desire to ensure timely adjudication well in advance of the October 1, 2025 start date, particularly given the potential for Requests for Evidence ("RFEs") that could extend the processing timeline.
IV. SOC CODE MAPPING AND CLASSIFICATION ANALYSIS
A. Methodology
The assignment of Standard Occupational Classification ("SOC") codes to each beneficiary's position is a critical step in the LCA process, as the SOC code determines the applicable prevailing wage for the position in the designated MSA. The SOC code must accurately reflect the occupational classification of the position based on the duties performed, the educational requirements, and the industry context.
For each of the five FY2026 cap-subject positions, SOC codes have been assigned based on the following methodology:
1. Primary Reference — DOL Standard Occupational Classification System: The SOC system, maintained by the Bureau of Labor Statistics ("BLS"), provides standardized definitions for each occupation. The SOC code assigned to each position is the code whose definition most closely matches the majority of the position's duties and responsibilities.
2. Cross-Reference — Occupational Outlook Handbook (OOH): The BLS Occupational Outlook Handbook provides detailed descriptions of occupations, including typical duties, education and training requirements, and median pay. These descriptions have been reviewed to confirm the appropriateness of each SOC assignment.
3. Cross-Reference — O*NET Occupational Profiles: The ONET database, maintained by the U.S. Department of Labor's Employment and Training Administration, provides detailed occupational data organized by SOC code. ONET profiles include task descriptions, knowledge areas, skills, and work activities that assist in distinguishing between closely related SOC codes.
4. Position-Specific Duty Analysis: Each position's duties, minimum educational requirements, and industry standards have been evaluated against the applicable SOC definition. Position descriptions were provided by OWS and reviewed by Calderwood & Harkness for accuracy and alignment with SOC classification requirements.
5. Employer Confirmation: Dr. Yun-Sheng Chen, Vice President of Engineering at OWS, has confirmed the technical scope and primary duties of each position for SOC mapping purposes. Dr. Chen's confirmation was obtained via email correspondence on May 22, 2025, and is retained in the engagement file.
The SOC code assignments set forth below represent our best professional judgment regarding the most accurate classification for each position. Where alternative classifications were considered, we have noted them along with the rationale for selecting the primary classification.
B. SOC Code Assignments
1. SOC 17-2199 — Engineers, All Other
Applied to: Naveen Sharma — Photonics Process Engineer
SOC Definition: SOC 17-2199 encompasses "all engineers not listed separately" in the SOC system. It is a residual classification that captures engineering occupations that do not fit within the more specifically defined engineering categories (e.g., electrical engineering, mechanical engineering, chemical engineering, etc.).
Rationale: The DOL does not maintain a specific SOC code for "Photonics Engineers" at the six-digit level used for prevailing wage purposes. The O*NET database includes an informal designation of SOC 17-2199.08 for "Photonics Engineers," but this eight-digit code maps to the parent SOC 17-2199 for all wage determination purposes. OWS's Photonics Process Engineer role involves the design, testing, process optimization, and yield improvement of photonic integrated circuits on silicon-on-insulator ("SOI") wafer platforms. The position requires expertise in guided-wave optics, silicon photonics fabrication processes, and semiconductor process integration — a multidisciplinary combination that spans electrical engineering and optical physics.
While the position involves certain elements of electronics engineering, the predominant focus on photonics-specific design and fabrication processes places it outside the scope of SOC 17-2072 (Electronics Engineers, Except Computer), which is more appropriately applied to roles centered on conventional electronic circuit design and semiconductor device physics. The "Engineers, All Other" classification under SOC 17-2199 is the most accurate available classification for this specialized photonics role.
Alternative Classification Considered: SOC 17-2072 (Electronics Engineers, Except Computer) was considered as an alternative mapping. This classification could be defensible given the semiconductor fabrication context of the role. However, it would result in a higher prevailing wage ($157,830 at Level III vs. $152,506 at Level III for SOC 17-2199), and more importantly, it is a less accurate reflection of the position's primary duties, which center on photonics rather than traditional electronics engineering. The selection of SOC 17-2199 is therefore both the more accurate and the more conservative classification from the employer's perspective — though we note that OWS's offered base salary of $175,000 exceeds the prevailing wage under either SOC code, rendering the distinction academic from a wage compliance standpoint.
2. SOC 17-2072 — Electronics Engineers, Except Computer
Applied to: Yuki Tanaka — Analog Design Engineer; Ahmed Hassan — Thermal Engineer
SOC Definition: SOC 17-2072 encompasses engineers who "research, design, develop, or test electronic components and systems for commercial, industrial, military, or scientific use employing knowledge of electronic theory and materials properties." This classification includes engineers who "design electronic circuits and components for use in fields such as telecommunications, aerospace, and instruments and controls."
Rationale for Yuki Tanaka (Analog Design Engineer): Ms. Tanaka's position involves the design and simulation of analog and mixed-signal integrated circuits, specifically transimpedance amplifiers ("TIAs"), clock and data recovery ("CDR") circuits, and driver amplifiers used in OWS's optical transceiver modules. The position requires proficiency in Marlowe Health IT and similar EDA tools for schematic capture, layout, and post-layout simulation. These duties fall squarely within the traditional electronics engineering discipline and are well-described by the SOC 17-2072 classification. The minimum educational requirement for this position is a Bachelor's degree in Electrical Engineering or Electronics Engineering, consistent with the typical education requirement for SOC 17-2072 occupations.
Rationale for Ahmed Hassan (Thermal Engineer): Mr. Hassan's position involves thermal modeling, simulation, and packaging design for PIC modules and optical transceiver assemblies. The role requires expertise in finite element analysis ("FEA") of thermal behavior in semiconductor packages, thermal interface material characterization, and heat dissipation optimization for high-power density photonic components. While thermal engineering is sometimes associated with mechanical engineering (SOC 17-2141), OWS's Thermal Engineer role is specifically focused on the thermal management of semiconductor and electronic packaging — a domain that falls more naturally within the electronics engineering classification. The position requires a Bachelor's degree in Electrical Engineering, Mechanical Engineering, or Materials Science with coursework in semiconductor thermal management. Given the electronic packaging context and the semiconductor industry setting, SOC 17-2072 is the most appropriate classification. Dr. Yun-Sheng Chen has confirmed that this role is organizationally situated within the hardware engineering team, further supporting the 17-2072 classification.
3. SOC 15-1252 — Software Developers
Applied to: Ekaterina Solovyova — Verification Engineer; Min-Jun Lee — EDA Tools Developer
SOC Definition: SOC 15-1252 encompasses professionals who "research, design, and develop computer and network software or specialized utility programs." This includes individuals who "analyze user needs and develop software solutions, applying principles and techniques of computer science, engineering, and mathematical analysis."
Rationale for Ekaterina Solovyova (Verification Engineer): Ms. Solovyova's position involves the development and maintenance of SystemVerilog and Universal Verification Methodology ("UVM") testbenches for the functional verification of photonic integrated circuit designs. The position requires designing constrained-random stimulus generation, developing coverage models, creating assertions and protocol checkers, and debugging simulation failures using waveform analysis and log-based debugging tools. Although the position exists within the semiconductor design context, the primary activity is software development — specifically, the development of verification software environments and automated testing infrastructure. The minimum educational requirement is a Bachelor's degree in Computer Science, Computer Engineering, or Electrical Engineering with a software emphasis. The software-intensive nature of this role places it within SOC 15-1252 rather than the hardware-focused SOC 17-2072.
Rationale for Min-Jun Lee (EDA Tools Developer): Mr. Lee's position involves the design, development, and maintenance of in-house electronic design automation ("EDA") tools, scripts, and software utilities that support OWS's photonic IC design flow. The role requires proficiency in Python, C++, and Tcl, as well as familiarity with commercial EDA tool APIs (Cobalt Ridge Health IT, Ridgeline Data Systems, Pemberton Enterprises). The position also involves developing custom design rule checking ("DRC") and layout versus schematic ("LVS") scripts, automating design flow steps, and creating internal software platforms for design data management. The primary activity of this role is software development — creating software tools for use by hardware engineers — and it is appropriately classified under SOC 15-1252. The minimum educational requirement is a Bachelor's degree in Computer Science, Computer Engineering, or Electrical Engineering with significant software development coursework.
C. Additional SOC Codes Referenced (For Completeness)
For reference purposes, the following additional SOC codes have been reviewed in connection with OWS's broader immigration portfolio, though they are not applicable to any of the five FY2026 cap-subject candidates:
• SOC 15-1211 — Computer Systems Analysts: The Level II prevailing wage for this SOC code in the San Jose-Sunnyvale-Santa Clara MSA is $127,338 per year. This code is currently used for two junior-level roles within OWS's IT infrastructure team, including the position held by Rania El-Masri, a current H-1B holder based at the Austin design center. This SOC code is not applicable to any FY2026 cap candidate.
• SOC 17-2199.08 — Photonics Engineers (O*NET informal designation): As noted above, this eight-digit O*NET-specific designation maps to the parent SOC 17-2199 for all DOL prevailing wage purposes. It has been referenced in this memorandum to confirm the mapping pathway for the Photonics Process Engineer classification.
V. PREVAILING WAGE ANALYSIS
A. Data Source
The prevailing wage data used in this analysis was obtained from the DOL Online Wage Library ("OWL"), which is based on the Bureau of Labor Statistics ("BLS") Occupational Employment and Wage Statistics ("OES") survey data. The OES survey is the data source used by DOL to set prevailing wages for LCA purposes, and the OWL is the authoritative online tool for retrieving prevailing wage levels by SOC code, wage level, and geographic area.
Wage data was retrieved in May 2025, reflecting the most current OES data available at the time of this memorandum. The applicable MSA for all five FY2026 cap-subject candidates is the San Jose-Sunnyvale-Santa Clara, CA MSA (MSA Code: 41940), corresponding to the worksite at OWS's headquarters (Site A).
Printouts of the DOL OWL data for each relevant SOC code in the San Jose MSA are attached as Appendix A to this memorandum.
B. Prevailing Wage Determinations by SOC Code — San Jose-Sunnyvale-Santa Clara MSA
The following table sets forth the prevailing wage levels for each SOC code applicable to the FY2026 cap-subject petitions, as well as the Level IV wages for reference. Level II wages for SOC 15-1211 are also included for completeness in connection with OWS's broader immigration portfolio.
The prevailing wages are expressed as annual salaries. For hourly rate purposes, the annual figures are divided by 2,080 hours (52 weeks × 40 hours per week), consistent with DOL conventions.
C. Wage Level Assignment Rationale
Wage Level III has been selected for all five FY2026 cap-subject candidates. The DOL's four-tier wage level system is defined as follows:
• Level I (Entry): Workers who have a basic understanding of the occupation and perform routine tasks under close supervision.
• Level II (Qualified): Workers who have attained competency through education or experience, perform moderately complex tasks requiring limited judgment, and receive general supervision.
• Level III (Experienced): Workers who have a sound understanding of the occupation, exercise independent judgment, perform tasks that require specialized skills, and have attained a higher level of expertise through experience or advanced education.
• Level IV (Fully Competent): Workers who are expert-level, use advanced skills to contribute to the development of new theories and methodologies, perform duties that are highly complex and varied, and exercise significant supervisory or managerial responsibilities.
Each of the five FY2026 positions at OWS requires a minimum of a Bachelor's degree in a relevant field (Electrical Engineering, Computer Science, Computer Engineering, Mechanical Engineering, or Materials Science, as applicable) plus two to five years of progressive, post-degree experience in the relevant technical domain. The positions require the exercise of independent judgment in technical decision-making, the application of specialized technical skills (such as silicon photonics process development, analog IC design, SystemVerilog/UVM verification, thermal packaging analysis, or EDA tool development), and the ability to work with minimal supervision on assigned projects.
These characteristics are consistent with the DOL's Level III ("Experienced") classification. The positions do not require the extensive experience (typically eight or more years) or supervisory/leadership responsibilities associated with Level IV. Nor are they entry-level positions that would warrant a Level I or Level II designation — each beneficiary has completed a graduate degree and has accumulated relevant industry or academic research experience prior to joining OWS.
The Level III designation is further supported by OWS's internal compensation structure, which places these positions at the IC3 (Engineer) level — a mid-career classification above the IC1 (Associate Engineer) and IC2 (Engineer II) entry-level tiers, but below the IC4 (Senior Engineer) and Principal Engineer senior tiers.
D. Prevailing Wage Supplemental Data — Austin-Round Rock-Georgetown, TX MSA (For Reference)
As noted in Section II.D, certain FY2026 cap-subject candidates may be considered for future worksite reassignment to OWS's Austin, Texas design center (Site B). While no such reassignment is currently planned, the following supplemental wage data for the Austin-Round Rock-Georgetown, TX MSA (MSA Code: 12420) is provided for reference and for planning purposes related to the cap-exempt transfer petitions:
• SOC 17-2072, Level III (Austin MSA): To be confirmed upon filing for any future worksite placement. Based on preliminary review, the Level III prevailing wage in the Austin MSA is expected to be materially lower than the San Jose MSA figure of $157,830.
• SOC 15-1252, Level III (Austin MSA): To be confirmed upon filing. Similarly expected to be lower than the San Jose MSA figure of $168,272.
Because the Austin MSA prevailing wages are generally lower than those in the San Jose MSA, filing the initial LCAs for the San Jose MSA establishes a conservatively higher benchmark. If any beneficiary is later relocated to Austin, the wage compliance analysis for the new LCA would be conducted against the Austin MSA prevailing wage, and OWS's offered compensation at the IC3 level is expected to comfortably exceed the applicable Austin MSA prevailing wages.
E. OWS Actual Offered Wages — Comparison to Prevailing Wages
The following table compares OWS's offered compensation for each FY2026 cap-subject candidate against the applicable prevailing wage at the designated wage level:
All five candidates are classified at OWS's IC3 (Engineer) compensation level, which carries a base salary of $175,000 and an annual restricted stock unit ("RSU") grant valued at approximately $30,000 (based on the most recent 409A valuation), yielding a total annual compensation of $205,000.
F. Wage Compliance Conclusion
Based on the analysis set forth above, all five candidates' offered compensation of $205,000 per year — comprised of $175,000 in base salary and $30,000 in RSUs (annualized value) — exceeds the applicable prevailing wage for each SOC code at Level III in the San Jose-Sunnyvale-Santa Clara MSA. The key findings are as follows:
• The minimum excess is $36,728 (21.8%), applicable to the two Software Developer positions (SOC 15-1252) held by Ekaterina Solovyova and Min-Jun Lee. Even on a base salary basis alone ($175,000 vs. $168,272), the excess is $6,728 (4.0%).
• The maximum excess is $52,494 (34.4%), applicable to the Photonics Process Engineer position (SOC 17-2199) held by Naveen Sharma. On a base salary basis alone ($175,000 vs. $152,506), the excess is $22,494 (14.8%).
• For the two Electronics Engineers positions (SOC 17-2072), the excess on a total compensation basis is $47,170 (29.9%), and on a base salary basis is $17,170 (10.9%).
Important Note Regarding RSUs and LCA Wage Reporting: The LCA requires that the employer attest to paying the H-1B worker a wage that equals or exceeds the higher of the prevailing wage or the actual wage. For purposes of the LCA wage entry, only the base salary should be reported as the offered wage. RSU compensation, while a component of total compensation, is variable in value and is not guaranteed in the same manner as base salary. The DOL has taken the position that equity-based compensation may be counted toward the required wage only if it is guaranteed and can be monetized by the worker on a regular basis.
OWS's base salary of $175,000 independently exceeds all applicable prevailing wages for the three SOC codes at Level III in the San Jose MSA. Accordingly, the base salary alone satisfies the prevailing wage requirement without the need to include RSU compensation in the LCA wage calculation.
Recommendation: Enter $175,000 as the annual wage rate on each LCA (reflecting base salary only). This figure independently satisfies the prevailing wage requirement for all applicable SOC codes. Supplemental RSU compensation documentation should be maintained in the Public Access File as evidence of total compensation, but RSUs need not and should not be entered as part of the wage rate on the LCA itself. This approach is conservative and defensible, avoiding any potential challenge regarding the guaranteed or liquid nature of equity-based compensation.
G. Actual Wage Analysis
Under the LCA requirements set forth in 20 CFR § 655.731(a)(1), the employer must pay the H-1B worker the higher of (i) the actual wage paid to all other individuals with similar experience and qualifications for the specific employment in question, or (ii) the prevailing wage for the occupational classification in the area of intended employment. The analysis above addresses the prevailing wage prong. This subsection addresses the actual wage prong.
OWS maintains standardized internal compensation bands for each position level. The IC3 (Engineer) compensation band applicable to all five FY2026 candidates is as follows:
• Base salary range: $170,000 – $185,000
• RSU grant range (annual value): $25,000 – $35,000
• Total compensation range: $195,000 – $220,000
The offered base salary of $175,000 for each of the five candidates falls within the IC3 base salary range and is consistent with the actual wage paid to U.S. workers in comparable IC3 Engineer positions at OWS. Currently, OWS employs approximately 28 U.S. workers at the IC3 level in engineering roles at the San Jose headquarters, with base salaries ranging from $170,000 to $183,000 and a median base salary of approximately $176,500. The offered wage of $175,000 is therefore consistent with the actual wage paid to similarly situated U.S. workers.
To satisfy the documentation requirements, Samantha Kowalski, Director of Human Resources at OWS, will prepare a signed Actual Wage Memorandum for each beneficiary. The memorandum will confirm the actual wage paid to comparably employed workers at OWS, including a description of the factors considered in setting compensation (education, experience, job responsibilities, specialization, and performance), and will be included in the Public Access File for each LCA. The template for this memorandum is provided at Appendix C.
Because the offered base salary of $175,000 exceeds the prevailing wage for all applicable SOC codes and falls within the actual wage range for comparable positions, the higher-of test is satisfied regardless of which prong yields the higher figure.
VI. GOVERNMENT FILING FEES — FY2026 H-1B CAP PETITIONS
A. Fee Breakdown Per Petition
The following table sets forth the government filing fees applicable to each FY2026 H-1B cap-subject petition. Fees are calculated based on OWS's employee headcount (340 FTEs) and the current USCIS fee schedule:
Note: The fee table above reflects the $750 ACWIA fee as initially calculated. If the correct fee is $1,500, the total per petition would be $6,400, and the aggregate for five petitions would be $32,000. This should be verified with the current USCIS fee schedule before payment preparation.
B. Aggregate Government Fees — 5 Petitions
Based on the fee breakdown set forth above (using the $750 ACWIA figure pending verification):
All government filing fees are to be paid directly by OWS. Under DOL regulations at 20 CFR § 655.731(c)(7)(ii) and longstanding DOL enforcement guidance, the employer may not require, request, or receive any payment or reimbursement from the H-1B beneficiary for fees associated with the H-1B petition, including the base filing fee, ACWIA fee, fraud prevention and detection fee, asylum program fee, or premium processing fee. Any attempt to pass these costs to the beneficiary, whether directly or through payroll deduction, would constitute a violation of the LCA wage requirements.
OWS's finance department, coordinated through Rajesh Anand (Immigration Program Manager), will prepare the necessary fee payments in advance of the I-129 filing date. Payment arrangements are discussed further in Section XI.C.
VII. LCA FILING CHECKLIST — DOL FLAG SYSTEM
A. Pre-Filing Preparation
The following checklist identifies the pre-filing tasks that must be completed before the LCAs can be submitted to the DOL FLAG (Foreign Labor Application Gateway) system. Each task is assigned to a responsible party with a target completion date.
B. FLAG System Filing
C. Number of LCAs Required
Under DOL regulations, a single LCA may cover multiple H-1B workers if the workers will be employed in the same SOC code, at the same wage level, at the same worksite, under the same terms and conditions of employment. Based on the five FY2026 cap-subject candidates, the minimum number of LCAs required is three, grouped as follows:
• LCA #1: SOC 17-2199 (Engineers, All Other), Site A (San Jose) — covering Naveen Sharma (Photonics Process Engineer). One position. This LCA must be filed separately because it is the only position classified under SOC 17-2199.
• LCA #2: SOC 17-2072 (Electronics Engineers, Except Computer), Site A (San Jose) — covering Yuki Tanaka (Analog Design Engineer) and Ahmed Hassan (Thermal Engineer). Two positions. These positions share the same SOC code, wage level (Level III), worksite (Site A), and compensation terms ($175,000 base salary), and may therefore be combined on a single LCA listing two worker positions.
• LCA #3: SOC 15-1252 (Software Developers), Site A (San Jose) — covering Ekaterina Solovyova (Verification Engineer) and Min-Jun Lee (EDA Tools Developer). Two positions. Like LCA #2, these positions share the same SOC code, wage level, worksite, and compensation terms, and may be combined on a single LCA listing two worker positions.
Alternative Approach — Five Individual LCAs: As an alternative to the three-LCA grouping approach, Calderwood & Harkness may file five individual LCAs — one per candidate — each listing one position. This approach offers several administrative advantages:
1. Each beneficiary has a uniquely associated LCA case number, simplifying tracking and correspondence with USCIS on the I-129 petition.
2. If an error is identified on one LCA (e.g., an incorrect wage rate or period of employment), only that single LCA needs to be withdrawn and refiled, rather than a combined LCA covering multiple workers.
3. The individual-LCA approach avoids potential confusion in the Public Access File regarding which LCA covers which beneficiary.
4. In the event of a future worksite change for one but not both workers on a combined LCA, the administrative impact is minimized.
Recommendation: File five individual LCAs (one per candidate) for maximum administrative clarity and tracking efficiency. The marginal additional effort of filing two extra LCAs is minimal and is outweighed by the administrative benefits.
VIII. ELECTRONIC POSTING / NOTICE REQUIREMENTS
A. Regulatory Basis
Under 20 CFR § 655.734, an employer filing an LCA is required to provide notice of the filing to workers employed in the occupational classification at the place of employment. The purpose of this notice requirement is to inform current workers about the employer's intent to hire H-1B workers and to provide them with an opportunity to file complaints with the DOL Wage and Hour Division if they believe the employer's attestations are inaccurate.
For employers whose workers are represented by a collective bargaining agent, notice must be provided to the bargaining representative. For employers whose workers are not represented by a collective bargaining agent — as is the case with OWS, which is a non-unionized employer — notice must be provided by one of two methods:
(a) Hard-copy posting at two conspicuous locations at each worksite where H-1B workers will be employed, for a minimum of 10 consecutive business days; or
(b) Electronic posting on the employer's intranet site or other electronic medium normally used to communicate with employees, for a minimum of 10 consecutive business days.
The notice must be posted on or within 30 days before the date the LCA is filed with DOL. The posting must remain in place for the full 10-consecutive-business-day period.
B. OWS Posting Protocol
OWS has historically utilized electronic posting on the company intranet for LCA notice purposes. This method was established during OWS's prior engagement with Whitfield & Parekh LLP for immigration matters and has been consistently applied across all prior H-1B filings. The electronic posting method is preferred because it reaches all employees at the relevant worksite (including those who may work remotely or in different areas of the facility) and because it creates an automatic electronic record of the posting dates.
The electronic posting is maintained on OWS's internal HR portal, accessible to all employees via the company intranet at `https://intranet.optiwave.com/hr/legal-notices`. The IT department at OWS can configure the posting to display automatically for the required period and can generate system logs confirming the posting dates.
The content of each LCA posting notice must include the following elements, as specified by 20 CFR § 655.734(b)(1)(ii):
1. The job title of the position(s) for which H-1B workers are being sought;
2. The number of H-1B workers sought;
3. The wages offered (base salary);
4. The period of employment (H-1B validity dates);
5. The worksite location(s) where the H-1B workers will be employed;
6. A statement that complaints may be filed with the Wage and Hour Division of the U.S. Department of Labor, including the address of the appropriate regional office.
A template posting notice conforming to these requirements is provided at Appendix D to this memorandum.
C. Posting Schedule — FY2026 Cap Petitions
The following table sets forth the posting schedule for the FY2026 cap-subject LCA filings:
Holiday Adjustment Note: June 19, 2025 (Juneteenth National Independence Day) is a federal holiday. Under DOL's regulatory framework, the 10-consecutive-business-day posting requirement counts only business days, excluding weekends and federal holidays. If the posting begins on Tuesday, June 10, 2025, the 10th business day would be Tuesday, June 24, 2025 (excluding the Juneteenth holiday on Thursday, June 19). The engagement team should confirm this calculation before finalizing the posting schedule.
D. Responsible Parties
The following individuals are responsible for the posting process:
• Rajesh Anand (Immigration Program Manager, OWS) — responsible for coordinating with OWS's IT department to configure and activate the electronic posting on the company intranet. Rajesh will also capture and retain screenshots documenting the posting dates.
• Tanya Benavides (Paralegal, Calderwood & Harkness LLP) — responsible for preparing the posting language/template and transmitting it to Rajesh Anand in advance of the posting date. Tanya will also coordinate with Rajesh to ensure that posting documentation is captured and retained for the Public Access File.
• Derek Okonkwo (Working Associate, Calderwood & Harkness LLP) — responsible for confirming that posting compliance documentation is complete and properly retained for inclusion in the Public Access File. Derek will review the screenshots and system logs to verify that the 10-business-day posting requirement has been satisfied.
IX. PUBLIC ACCESS FILE (PAF) REQUIREMENTS
A. Regulatory Basis
Under 20 CFR § 655.760, an employer filing an LCA is required to maintain a Public Access File ("PAF") for each LCA at the employer's principal place of business or at the worksite. The PAF must be established within one working day after the date the LCA is filed with DOL. The PAF must be made available for public inspection upon request, and the employer must provide access to the PAF within one working day of receiving a request.
The PAF requirement serves a transparency function, enabling members of the public, competitors, labor organizations, and government investigators to review the employer's LCA-related documentation and verify that the employer's attestations are supported by adequate documentation.
B. Required PAF Contents (Per LCA)
The following table identifies the documents that must be included in each Public Access File, along with the source of each document and the party responsible for its preparation:
C. PAF Maintenance and Access
The following protocols govern the maintenance, storage, and accessibility of the Public Access Files:
• Location: The PAF must be maintained at Site A (4820 Veltrano Parkway, Suite 300, San Jose, CA 95134), the worksite for all five FY2026 cap-subject candidates. If any beneficiary is later relocated to a different worksite, a copy of the PAF must also be maintained at the new worksite.
• Format: The PAF will be maintained in both physical (binder) and electronic (PDF) formats. The physical binder will be stored in the HR department at Site A in a location accessible to the PAF custodian. The electronic version will be maintained on OWS's secure HR document management system with appropriate access controls.
• Public Access: The PAF must be made available for public inspection within one working day of receiving a request. Requests for access should be directed to Rajesh Anand (PAF custodian) or, in his absence, to Samantha Kowalski (Director of HR). Calderwood & Harkness should be notified immediately of any request for PAF access, as such requests may indicate a DOL investigation or a third-party compliance inquiry.
• Retention Period: LCA documentation must be retained for one year beyond the end of the LCA validity period or one year after the LCA is withdrawn, whichever is later. For the FY2026 cap-subject petitions with a requested H-1B validity period of October 1, 2025 through September 30, 2028, the minimum retention date would be September 30, 2029. OWS should maintain the PAF documentation beyond this minimum period as a matter of best practice.
PAF Custodian: Rajesh Anand (Immigration Program Manager, OWS) is designated as the PAF custodian for all H-1B-related documentation at OWS. Rajesh is responsible for maintaining the PAF binders, responding to access requests, and ensuring that the files remain current and complete. Tanya Benavides will provide the initial PAF assembly, and Rajesh will assume custody upon delivery.
D. PAF Assembly Timeline
The following timeline governs the assembly and delivery of the Public Access Files for the five FY2026 cap-subject LCAs:
X. LCA AMENDMENT CONSIDERATIONS — WORKSITE CHANGES
A. Matter of Simeio Solutions Compliance
The Administrative Appeals Office ("AAO") decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), established that a new LCA and an amended H-1B petition (Form I-129) are required whenever an H-1B worker is placed at a new worksite not covered by the existing certified LCA, unless a regulatory exception applies. This requirement arises because the LCA attests to specific conditions — including the prevailing wage and working conditions — at a specific worksite within a specific MSA, and those conditions may differ materially at a new worksite in a different MSA.
For OWS, this means that if any of the five FY2026 cap-subject candidates are subsequently relocated from Site A (San Jose, CA — MSA 41940) to Site B (Austin, TX — MSA 12420) or Site C (Portland, OR — MSA 38900), the following steps would be required:
1. A new prevailing wage analysis must be conducted for the applicable SOC code in the new MSA.
2. A new LCA must be filed and certified through the DOL FLAG system, reflecting the new worksite address and MSA-specific prevailing wage.
3. An amended I-129 petition must be filed with USCIS, accompanied by the newly certified LCA, requesting approval of the worksite change.
4. The employer must complete a new electronic posting or physical posting at the new worksite for 10 consecutive business days.
5. A new or updated Public Access File must be established at the new worksite.
Under OWS's current engagement letter with Calderwood & Harkness (dated April 15, 2025), the legal fee cap for each H-1B amendment filing is $3,500 per amendment, exclusive of government filing fees. OWS should be advised that worksite changes triggering Simeio Solutions obligations involve both legal fees and the I-129 amendment filing fee ($780) and, if Premium Processing is elected, the I-907 fee ($2,805).
B. Short-Term Placement Exception (20 CFR § 655.735)
The Simeio Solutions amended petition requirement is subject to a regulatory exception for short-term placements at worksites not covered by the existing LCA. Under 20 CFR § 655.735, an H-1B worker may be placed at a non-LCA worksite without filing a new LCA or amended petition under the following conditions:
• 30-Day Exception (§ 655.735(b)): The worker is placed at the non-LCA worksite for no more than 30 workdays within a consecutive 12-month period, provided the worker continues to maintain a home station at the LCA-covered worksite and the employer pays the worker's cost of lodging, travel, and meals during the short-term assignment.
• 60-Day Exception (§ 655.735(c)): The worker is placed at the non-LCA worksite for no more than 60 workdays within a consecutive 12-month period, provided the worker has a home station at the LCA-covered worksite, the employer pays travel costs, and there is no indication of a pattern or practice of short-term placements designed to circumvent the LCA requirements.
OWS has indicated that it occasionally sends engineering personnel to customer data center locations for on-site installation, commissioning, and field characterization activities. These short-term assignments typically last one to two weeks (5–10 workdays) and fall well within the 30-day threshold under 20 CFR § 655.735(b). However, OWS must maintain accurate records of each H-1B worker's time spent at non-LCA worksites to ensure that the cumulative total does not exceed the applicable threshold during any 12-month period.