PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED ATTORNEY WORK PRODUCT
MEMORANDUM
June 2, 2025
TO: Nathaniel Bower, Responsible Partner, Calderwood & Harkness LLP
CC: Dr. Lena Marchetti, Of Counsel, Calderwood & Harkness LLP Derek Okonkwo, Associate, Calderwood & Harkness LLP Tanya Benavides, Paralegal, Calderwood & Harkness LLP
FROM: Megan Chu, Lead Associate, Calderwood & Harkness LLP
RE: H-1B Extension Filing Strategy — Takeshi Nakamura, Jae-Won Park, Arjun Krishnamurthy, Chen Xiaoming
Matter: Optiwave Semiconductor Corp. — Employment-Based Visa Program
Engagement Reference: SC-OWS-2025-0520-IMM
Client Contacts: Patricia Langford, General Counsel, Optiwave Semiconductor Corp. Rajesh Anand, Immigration Program Manager, Optiwave Semiconductor Corp.
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I. Executive Summary
The purpose of this memorandum is to outline the extension filing strategy, applicable legal framework, and timeline for four current H-1B nonimmigrant visa holders employed by Optiwave Semiconductor Corp. ("OWS" or the "Company") whose authorized H-1B petitions expire between May 31, 2025, and March 31, 2026. This memorandum is intended to serve as a comprehensive reference for the Calderwood & Harkness immigration practice team managing the OWS engagement, as well as a basis for strategic discussion with the responsible partner and client contacts.
Calderwood & Harkness LLP assumed representation of OWS for all employment-based immigration matters effective May 20, 2025, succeeding Whitfield & Parekh LLP ("W&P") as immigration counsel of record. The engagement was opened under reference number SC-OWS-2025-0520-IMM. The transition from W&P was occasioned by OWS's desire for broader immigration program management and integration with Calderwood & Harkness's existing labor and employment representation of the Company. The file transfer from W&P is ongoing, with a target completion date of June 15, 2025, as discussed further in Section V.A below.
The four beneficiaries requiring extension action are as follows:
1. Takeshi Nakamura — Signal Integrity Engineer. Mr. Nakamura's I-94 expired on May 31, 2025. An extension petition was filed by prior counsel W&P on March 15, 2025; the receipt notice has not yet been confirmed in the Calderwood & Harkness files. Mr. Nakamura is currently operating under the 240-day automatic extension of employment authorization pursuant to 8 CFR § 214.2(h)(2)(i)(H). In addition, USCIS has issued a Request for Evidence ("RFE") challenging the specialty occupation classification of his position, which must be addressed as a matter of immediate priority. Mr. Nakamura's green card processing is proceeding under the EB-1B (Outstanding Researcher) category, with a priority date of September 10, 2022. Urgency: Immediate.
2. Chen Xiaoming — Reliability Engineer. Mr. Chen's H-1B validity period runs through August 14, 2025, and the extension petition must be filed by approximately June 15, 2025, to comply with the 180-day advance filing window and ensure uninterrupted authorization. This is the most time-critical new filing for Calderwood & Harkness. Mr. Chen's green card processing is proceeding under the EB-2 category, with a priority date of April 5, 2024. The PERM and I-140 statuses must be confirmed from the W&P files. Urgency: Critical.
3. Arjun Krishnamurthy — Power Management IC Designer. Mr. Krishnamurthy's H-1B validity period runs through November 30, 2025, with a targeted extension filing in the August–September 2025 timeframe. His EB-2 priority date is July 22, 2023. Critically, a PERM labor certification audit is currently pending from prior counsel W&P, the status and response deadline of which must be determined immediately. Failure to address the PERM audit in a timely manner could jeopardize both the labor certification and Mr. Krishnamurthy's eligibility for a seventh-year H-1B extension. Urgency: Important.
4. Jae-Won Park — Analog IC Designer. Mr. Park's H-1B validity period runs through March 31, 2026, providing the most lead time of the four beneficiaries. His EB-2 priority date is November 20, 2023. The extension filing is targeted for the October–November 2025 timeframe. Urgency: Standard.
All four beneficiaries are employed at OWS's principal worksite in San Jose, California (Site A: 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134). All four positions are classified under SOC code 17-2072 (Electronics Engineers, Except Computer). Each beneficiary has a pending or approved PERM labor certification and/or I-140 immigrant visa petition, which implicates potential eligibility for seventh-year H-1B extensions under the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"), specifically the provisions codified at INA § 106(a) and INA § 106(b), as amended.
The file transfer from W&P (Kavita Parekh) is targeted for completion by June 15, 2025. Some files have already been received. Tanya Benavides is tracking receipt of all transferred materials via the File Transfer Acknowledgment & Inventory Checklist. For Mr. Chen's extension filing, the relevant file materials must be received no later than June 10, 2025, to support the targeted June 15, 2025, filing date.
This memorandum requests authorization from the responsible partner to proceed with the action items outlined in Section VII and recommends immediate communication with OWS General Counsel Patricia Langford and Immigration Program Manager Rajesh Anand regarding the urgent matters described herein.
II. Client and Program Background
Company Overview. Optiwave Semiconductor Corp. ("OWS" or the "Company") is a Delaware corporation qualified to do business in California, Texas, and Oregon. The Company is headquartered at 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134. OWS operates in the semiconductor and related device manufacturing industry (NAICS code 334413), specializing in the design, development, and fabrication of photonic integrated circuits ("PICs") for data center interconnect applications. The Company's products serve hyperscale cloud providers, telecommunications carriers, and enterprise data center operators.
OWS was founded on March 14, 2017, and has grown to approximately 340 employees distributed across three primary facilities and a remote workforce:
• San Jose, California (headquarters): approximately 210 employees
• Austin, Texas: approximately 65 employees
• Portland, Oregon: approximately 40 employees
• Remote employees: approximately 25 employees
For fiscal year 2024, OWS reported annual revenue of approximately $187.4 million, as reflected in the audited financial statements prepared by Pendleton Accounting Group LLP (engagement partner Marcus Hensley, CPA). The Company has experienced significant revenue growth over the past several fiscal years, consistent with the broader expansion of data center capacity and demand for high-speed optical interconnect technologies.
Ownership and Governance
OWS's majority shareholder is Crestline Ventures Fund IV, LP, which holds approximately 62.4% of the Company's equity. Crestline Ventures acquired its majority position on September 15, 2022. The managing partner of Crestline Ventures is Howard Driscoll. Crestline Ventures holds two of five seats on the OWS Board of Directors. The remaining equity is held by a combination of the founding team, management, and early-stage investors.
Employer Identification and E-Verify
OWS's Federal Employer Identification Number (FEIN) is 82-4931076. The Company participates in the E-Verify program and maintains E-Verify Company ID 1487623. E-Verify participation is current and in good standing.
H-1B Dependency Status
OWS is classified as a non-dependent H-1B employer. The Company currently employs 14 H-1B nonimmigrant workers out of a total workforce of approximately 340 employees. This yields an H-1B dependency ratio of approximately 4.12%, which is well below the 15% threshold applicable to employers with 51 or more full-time equivalent employees as set forth in INA § 212(n)(3)(A). As a non-dependent employer, OWS is not subject to the additional attestation requirements that apply to H-1B dependent employers, including the displacement and secondary displacement attestations and the good-faith recruitment attestation.
Current Visa Portfolio
OWS's current active nonimmigrant visa portfolio consists of 18 holders:
• H-1B: 14 active holders (including the four beneficiaries addressed in this memorandum)
• O-1A (Extraordinary Ability in the Sciences): 3 active holders
• O-1B (Extraordinary Ability in the Arts): 1 active holder
The four beneficiaries addressed in this memorandum represent a significant proportion of the Company's H-1B population and include key technical personnel within the engineering division.
Key OWS Contacts
The following OWS personnel are the primary points of contact for immigration matters under the Calderwood & Harkness engagement:
• Patricia Langford — General Counsel. Ms. Langford is the senior legal officer responsible for overseeing all external counsel engagements, including immigration. She serves as the primary point of contact for strategic decisions and engagement-level matters.
• Dr. Yun-Sheng Chen — Vice President of Engineering. Dr. Chen oversees the engineering division and will provide technical attestations, position descriptions, and employer support letters for each extension petition. Dr. Chen's detailed knowledge of the Company's technical operations and the specific roles performed by each beneficiary will be essential in crafting persuasive support letters, particularly in connection with any specialty occupation challenges.
• Samantha Kowalski — Director of Human Resources. Ms. Kowalski is responsible for employment verification (Form I-9), benefits administration, and coordination of internal posting requirements for Labor Condition Applications. She is also the designated primary contact for FDNS site visits.
• Rajesh Anand — Immigration Program Manager. Mr. Anand serves as the day-to-day operational contact for all immigration filings. He coordinates with beneficiaries to collect documentation, manages internal timelines, and facilitates communication between Calderwood & Harkness and the various internal OWS stakeholders.
Prior Immigration Counsel
OWS was previously represented for immigration matters by Whitfield & Parekh LLP ("W&P"), located at 600 Wilshire Boulevard, Suite 1200, Los Angeles, CA 90017. The primary attorney responsible for the OWS immigration portfolio at W&P was Kavita Parekh. W&P's engagement with OWS ran from approximately June 1, 2019, through April 30, 2025. The termination of the W&P engagement was amicable, and a cooperative file transition is underway, as discussed in detail in Section V.A below.
III. Legal Framework for H-1B Extensions
This section provides an overview of the legal and regulatory framework governing H-1B extensions of status, including the standard extension mechanics, the 240-day automatic extension rule, the seventh-year extension provisions under AC21, and the portability provisions of INA § 214(n). A thorough understanding of this framework is essential for evaluating the extension strategy for each of the four beneficiaries.
A. Standard H-1B Extension Mechanics
H-1B nonimmigrant status is granted in increments of up to three years per petition approval. Under INA § 214(g)(4), the maximum initial period of authorized H-1B status is six years. This six-year period is cumulative and accounts for all time spent in H-1B status, regardless of the petitioning employer. Accordingly, where a beneficiary has been in H-1B status with one or more prior employers, the total time accrued across all employers must be calculated to determine remaining eligibility within the standard six-year limit.
Extensions of H-1B status are filed by the petitioning employer on Form I-129, Petition for a Nonimmigrant Worker, with the appropriate USCIS service center. For H-1B petitions filed by employers located in California, including OWS, the applicable service center is the California Service Center (Fenmore Health IT), located at 24000 Avila Road, Laguna Niguel, CA 92677. The I-129 petition must be accompanied by all required supporting documentation, including an approved or certified Labor Condition Application ("LCA"), evidence of the beneficiary's qualifications, an employer support letter, and payment of applicable government fees.
Labor Condition Application Requirement. Each H-1B extension requires the filing and certification of a new or updated LCA through the Department of Labor's Foreign Labor Application Gateway ("FLAG") system. The LCA must reflect the current prevailing wage for the applicable Standard Occupational Classification ("SOC") code and Metropolitan Statistical Area ("MSA") as of the date of filing. The LCA must be certified by the DOL before the I-129 extension petition can be submitted to USCIS.
For all four beneficiaries in this matter, the applicable SOC code is 17-2072 (Electronics Engineers, Except Computer), and the worksite MSA is San Jose-Sunnyvale-Santa Clara, CA. Based on the most current DOL Occupational Employment and Wage Statistics ("OES") data, the prevailing wage at Level III (experienced) for this SOC code and MSA is $157,830 per year. All four beneficiaries are compensated at OWS's IC4 Senior Engineer level or above, with total annual compensation of approximately $265,000 (comprising $210,000 in base salary and $55,000 in annual restricted stock unit vesting, or higher). Each beneficiary's actual wage therefore exceeds the applicable prevailing wage by a significant margin, satisfying the LCA wage attestation requirements.
Government Filing Fees. The following government fees are applicable to each H-1B extension petition filed by OWS:
It is noted that the H-1B registration fee of $215, which is required for initial H-1B cap-subject petitions, is not applicable to extension filings and is therefore excluded from the above calculation.
OWS has elected to utilize premium processing (Form I-907) for all H-1B extension petitions. Premium processing requires USCIS to adjudicate the petition within 15 business days of receipt, or to issue an RFE, notice of intent to deny, or other interim action within that period. Given the importance of maintaining uninterrupted employment authorization for each beneficiary, and the time-sensitive nature of several of these filings, premium processing is strongly recommended for all four extensions.
Calderwood & Harkness Fee Arrangement. Pursuant to the engagement letter executed between Calderwood & Harkness and OWS dated May 20, 2025, the firm's legal fees for each H-1B extension petition are capped at $4,200 per petition. This cap covers preparation and filing of the LCA, I-129 petition, employer support letter, and all standard supporting documentation. RFE responses, PERM audit responses, and other non-standard work are billed separately on an hourly basis.
B. 240-Day Automatic Extension Rule
Under 8 CFR § 214.2(h)(2)(i)(H), an H-1B worker whose employer timely files an extension of stay petition before the beneficiary's currently authorized period of stay expires is authorized to continue employment with the same employer for up to 240 days from the date of the I-94 expiration, pending adjudication of the extension petition by USCIS. This provision is commonly referred to as the "240-day rule" or the "240-day automatic extension of employment authorization."
The key requirements for applicability of the 240-day rule are as follows:
(a) The extension petition must be timely filed — that is, the I-129 petition must be filed with USCIS before the expiration of the beneficiary's current authorized period of stay (as reflected on the I-94 record);
(b) The extension petition must be filed by the same employer that currently employs the beneficiary in H-1B status;
(c) The beneficiary must continue to be employed in the same position or in a position consistent with the terms and conditions of the approved petition; and
(d) The extension petition must remain pending (i.e., not yet adjudicated by USCIS) during the 240-day period.
During the 240-day period, the beneficiary remains in valid H-1B status for purposes of employment authorization. However, the beneficiary's employment authorization is tied to the pending petition and the specific employer that filed it. The beneficiary may not travel internationally and re-enter the United States on the basis of the pending petition alone. If the beneficiary departs the United States during the pendency of the extension, the beneficiary would need to obtain a new H-1B visa stamp at a U.S. consulate abroad (which requires an approved petition) or, if available, use advance parole documentation issued in connection with a pending adjustment of status application.
The 240-day rule is directly applicable to the case of Takeshi Nakamura, whose I-94 expired on May 31, 2025, and whose extension petition was timely filed by prior counsel W&P on March 15, 2025. Mr. Nakamura is therefore authorized to continue employment at OWS for up to 240 days from the I-94 expiry date, through approximately January 26, 2026. The implications of this status for Mr. Nakamura's employment authorization, I-9 compliance, and travel restrictions are discussed in detail in Section IV.A below.
C. Seventh-Year and Beyond Extensions Under AC21 (INA § 106(a) and (b))
The six-year maximum period of H-1B status established by INA § 214(g)(4) is subject to important exceptions created by the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"), Pub. L. No. 106-313, 114 Stat. 1251. The relevant provisions, codified at INA § 106(a) and INA § 106(b) (as amended by the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273), permit extensions of H-1B status beyond the standard six-year maximum for beneficiaries who are the subject of pending or approved employment-based immigrant visa petitions.
INA § 106(a) — One-Year Extensions for Pending PERM/I-140 Cases. Section 106(a) of AC21 permits the granting of one-year extensions of H-1B status beyond the six-year maximum where:
(i) A PERM labor certification application (ETA Form 9089) or an I-140 immigrant visa petition has been filed on behalf of the beneficiary; and
(ii) The labor certification application or I-140 petition has been pending for 365 days or more as of the date of the H-1B extension request; and
(iii) The beneficiary is the subject of an employment-based immigrant petition or application for labor certification and would be eligible for the requested extension but for the six-year limitation.
Under INA § 106(a), the extension is limited to one year at a time. The beneficiary may continue to seek additional one-year extensions for as long as the underlying PERM or I-140 remains pending and the other eligibility criteria are met. This provision is designed to prevent disruption of employment for foreign workers whose green card processing has been delayed by lengthy adjudication timelines at the Department of Labor or USCIS.
INA § 106(b) — Three-Year Extensions for Approved I-140 Cases with Unavailable Visa Numbers. Section 106(b) of AC21 permits the granting of three-year extensions of H-1B status beyond the six-year maximum where:
(i) The beneficiary has an approved I-140 immigrant visa petition; and
(ii) The beneficiary cannot file an application for adjustment of status (Form I-485) or the beneficiary's application for an immigrant visa cannot be approved because an immigrant visa number is not available to the beneficiary under the applicable preference category and country of chargeability, as determined by the Department of State Visa Bulletin.
The three-year extension under INA § 106(b) is generally more favorable to the beneficiary than the one-year extension under INA § 106(a) because it provides a longer period of authorized status and reduces the frequency of extension filings. However, it requires an approved I-140 petition and demonstrated visa number unavailability, which in turn requires an analysis of the Department of State's monthly Visa Bulletin and the beneficiary's priority date, preference category, and country of chargeability.
These provisions are of critical importance for beneficiaries who have reached or are approaching their six-year H-1B limit and have pending or approved green card processing. For the four beneficiaries at issue in this memorandum, the seventh-year extension eligibility analysis must consider the following factors for each individual:
(a) Total cumulative time spent in H-1B status across all employers;
(b) Whether any periods of physical presence outside the United States during the H-1B validity period may be "recaptured" to extend the six-year clock (i.e., days spent outside the U.S. that were not utilized for H-1B purposes);
(c) The PERM labor certification filing date and current status (pending, approved, or denied);
(d) The I-140 immigrant visa petition filing date, approval date, and current status;
(e) The beneficiary's priority date and its relationship to the applicable Visa Bulletin cutoff dates for the relevant preference category and country of chargeability; and
(f) Any pending PERM audits, I-140 RFEs, or other adjudicatory actions that may affect the status of the underlying green card case.
Each beneficiary's specific seventh-year extension eligibility is analyzed in the individual beneficiary sections of this memorandum (Section IV below).
D. AC21 Portability (INA § 214(n))
Section 214(n) of the INA, as added by AC21, establishes the H-1B portability provision. Under this provision, an H-1B nonimmigrant worker may change employers and begin working for a new employer upon the filing of a new H-1B petition by the new employer, without waiting for USCIS to approve the new petition. The requirements for portability are:
(a) The beneficiary must have been lawfully admitted to the United States;
(b) The beneficiary must not have been employed without authorization; and
(c) A new H-1B petition must have been timely filed by the new employer before the expiration of the beneficiary's authorized period of stay, or during the period of authorized stay (including any extension period under the 240-day rule).
The portability provision is not directly at issue for the four extension petitions addressed in this memorandum, as all four beneficiaries are existing OWS employees seeking extensions with the same employer. However, the portability provision has several indirect implications that warrant mention:
First, the portability provision interacts with the 240-day rule in the case of Takeshi Nakamura. If another employer were to file an H-1B petition on Mr. Nakamura's behalf during the pendency of his OWS extension petition, the portability provision would permit Mr. Nakamura to begin work for the new employer upon filing of the new petition. Conversely, if Mr. Nakamura's OWS extension is denied, he would need to identify a new petitioning employer and invoke portability in order to maintain H-1B status (subject to applicable time constraints).
Second, the portability provision is relevant as a contingency measure for any of the four beneficiaries in the event that an alternative employment opportunity arises during the pendency period. Calderwood & Harkness should be prepared to advise OWS and the individual beneficiaries on the implications of any such developments.
IV. Beneficiary-by-Beneficiary Extension Analysis
This section provides a detailed analysis of the extension filing strategy, legal considerations, and recommended actions for each of the four H-1B beneficiaries. The beneficiaries are presented in order of filing urgency.
A. Takeshi Nakamura — Signal Integrity Engineer
1. Current Status and Petition History.
Mr. Nakamura's H-1B extension petition was filed by prior counsel W&P on March 15, 2025, approximately 77 days before the expiration of his I-94 on May 31, 2025. This filing was timely for purposes of the 240-day automatic extension rule. However, Calderwood & Harkness has not yet received the I-797C receipt notice or a complete copy of the filed petition from W&P. Obtaining these materials is the single highest priority action item in this engagement.
It must also be confirmed whether W&P filed a Form I-907, Request for Premium Processing Service, concurrently with the extension petition. If premium processing was not elected at the time of filing, Calderwood & Harkness should consider filing an I-907 upgrade request immediately upon obtaining the receipt number, in order to expedite adjudication and reduce the period during which Mr. Nakamura is operating under the 240-day rule.
2. Application of the 240-Day Rule. As set forth in Section III.B above, Mr. Nakamura's extension petition was timely filed on March 15, 2025, prior to the I-94 expiry of May 31, 2025. Accordingly, Mr. Nakamura is authorized to continue employment at OWS for up to 240 days from the I-94 expiry date, pursuant to 8 CFR § 214.2(h)(2)(i)(H). This 240-day period extends through approximately January 26, 2026.
During this 240-day period, the following conditions and restrictions apply:
(a) Continued Employment Authorization. Mr. Nakamura is authorized to continue working at OWS in the Signal Integrity Engineer position, consistent with the terms and conditions of the pending extension petition. OWS may continue to employ Mr. Nakamura without interruption.
(b) International Travel Restriction. Mr. Nakamura should not travel internationally during the pendency of the extension petition. If Mr. Nakamura departs the United States, he would not be able to re-enter on the basis of the pending petition alone. Re-entry would require either (i) an approved I-797 and a valid H-1B visa stamp in his passport, or (ii) advance parole documentation issued in connection with a pending I-485 adjustment of status application (which is not applicable here, as no I-485 has been filed). Calderwood & Harkness should advise both OWS management (through Rajesh Anand) and Mr. Nakamura directly regarding this travel restriction.
(c) I-9 Documentation. Mr. Nakamura's I-94 has expired, and his I-9 record must be updated to reflect his continued employment authorization under the 240-day rule. Samantha Kowalski should be advised to annotate Section 3 of Mr. Nakamura's Form I-9 to reflect the pending extension petition, noting the I-129 receipt number (once obtained) and the filing date of March 15, 2025. This documentation should be coordinated with Sentinel Background Verification Corp. (Tyler Ng) for purposes of updating the E-Verify case.
(d) Worksite Documentation. OWS should retain a copy of the I-797C receipt notice (once obtained) and a copy of the filed I-129 petition in Mr. Nakamura's worksite personnel file and in the Public Access File for the San Jose worksite. This documentation should be readily accessible in the event of an FDNS site visit.
3. Seventh-Year Extension Eligibility. Mr. Nakamura's current H-1B validity period of June 1, 2022, through May 31, 2025, represents three years of authorized H-1B status with OWS. However, to determine whether Mr. Nakamura has reached or is approaching the six-year maximum under INA § 214(g)(4), it is necessary to ascertain his total cumulative time in H-1B status, including any periods of H-1B employment with prior employers.
The file transfer from W&P should include Mr. Nakamura's complete H-1B petition history. If Mr. Nakamura held H-1B status with one or more prior employers before joining OWS, the time spent in H-1B status with those employers counts toward the six-year maximum. Conversely, any periods during which Mr. Nakamura was physically present outside the United States during an authorized H-1B validity period may be "recaptured" to effectively extend the six-year clock, provided that the time outside the U.S. can be documented.
Mr. Nakamura's green card processing is proceeding under the EB-1B (Outstanding Researcher) classification, with a priority date of September 10, 2022. The current status of the EB-1B petition — specifically, whether the I-140 has been filed, is pending, or has been approved — must be confirmed from the W&P files. The EB-1B petition status is directly relevant to the seventh-year extension analysis as follows:
(a) If the EB-1B I-140 petition has been pending for 365 days or more as of the date of the extension request, INA § 106(a) would support a one-year extension of H-1B status beyond the six-year limit. Given the priority date of September 10, 2022, and assuming the I-140 was filed on or near that date, the petition would have been pending for approximately 32 months as of the extension filing date of March 15, 2025, well in excess of the 365-day threshold.
(b) If the EB-1B I-140 petition has been approved but Mr. Nakamura cannot file for adjustment of status due to visa number unavailability, INA § 106(b) would support a three-year extension. However, the EB-1B category (EB-1, first preference) is generally current for all countries of chargeability (including Japan, Mr. Nakamura's likely country of chargeability), so visa unavailability may not be an issue. This analysis must be confirmed against the current Visa Bulletin.
(c) If the I-140 has been approved and the visa number is current, Mr. Nakamura may be eligible to file for adjustment of status (Form I-485), which would provide a different pathway to maintaining lawful presence and employment authorization (via an Employment Authorization Document or "EAD" issued incident to the pending I-485).
Action Item: Obtain Mr. Nakamura's complete H-1B history and EB-1B petition receipt/status from the W&P files. Assess total recapturable time outside the United States. Coordinate with Dr. Lena Marchetti on the EB-1B petition status and its interaction with the H-1B extension strategy.
4. Pending Request for Evidence (RFE). USCIS has issued a Request for Evidence in connection with Mr. Nakamura's pending extension petition. The RFE challenges the specialty occupation classification of the Signal Integrity Engineer position. Specifically, USCIS appears to be questioning whether the position meets the regulatory criteria for a specialty occupation under 8 CFR § 214.2(h)(4)(ii), which requires, among other things, that the position normally require at least a bachelor's degree (or its equivalent) in a specific specialty directly related to the position.
The RFE response strategy is being addressed in a separate memorandum (the "RFE Response Strategy Memorandum — Nakamura"), which is being prepared by Dr. Lena Marchetti and Megan Chu. That memorandum will address the substance of the RFE, the specific evidence requested, the applicable legal standards, and the recommended response strategy. The preparation of the RFE response will require close collaboration with Dr. Yun-Sheng Chen, who will need to provide detailed technical information regarding the Signal Integrity Engineer role, including the specific educational and technical qualifications required, the complexity of the duties performed, and the industry standards for comparable positions.
The RFE response timeline and outcome will directly impact Mr. Nakamura's extension petition and continued employment authorization. A successful RFE response should result in approval of the pending extension petition. An unsuccessful response could result in denial of the petition, which would terminate Mr. Nakamura's 240-day employment authorization and require either (i) a motion to reopen or reconsider, (ii) a new H-1B petition filing, or (iii) a change of status to a different nonimmigrant classification (if available).
Calderwood & Harkness is assuming full responsibility for the RFE response from W&P. To prepare the response, the firm requires the complete RFE text, the response deadline, all documents filed with the original extension petition, and any draft response materials that W&P may have begun to prepare.
5. Recommended Actions for Nakamura.
(a) Immediately obtain the I-797C receipt number and the full petition file (including all supporting documentation, the RFE text, and the RFE response deadline) from Whitfield & Parekh. Target completion: June 5, 2025.
(b) Confirm whether premium processing (Form I-907) was filed with the extension petition. If premium processing was not elected, file an I-907 upgrade request immediately upon obtaining the receipt number. Target: June 6, 2025.
(c) Prepare the RFE response in accordance with the separate RFE Response Strategy Memorandum. The response must be filed within the deadline specified in the RFE notice (typically 60 or 84 days from the date of issuance). Dr. Marchetti to take the lead.
(d) Advise OWS HR (Rajesh Anand and Samantha Kowalski) regarding Mr. Nakamura's continued employment authorization under the 240-day rule. Ensure proper I-9 documentation, including annotation of Section 3 and coordination with Sentinel Background Verification Corp. (Tyler Ng) for E-Verify update. Target: June 5, 2025.
(e) Coordinate with Dr. Marchetti on the EB-1B petition status and its interaction with the H-1B extension strategy, including seventh-year extension eligibility and potential adjustment of status timeline.
B. Chen Xiaoming — Reliability Engineer
1. Current Status and Petition History.
Mr. Chen's current H-1B validity period runs through August 14, 2025. To ensure timely filing within the recommended 180-day advance filing window, the extension petition should be filed by approximately June 15, 2025. While there is no express regulatory prohibition on filing an extension petition more than 180 days before the I-94 expiry, USCIS best practice and prior agency guidance recommend filing within this window to avoid potential processing issues or adjudicative delays associated with premature filings. Given that the 180-day mark falls on approximately February 15, 2025, the filing window has already opened and the recommended target date of June 15, 2025, is well within the acceptable range.
2. Urgency and Filing Timeline. This is the most time-critical new filing for Calderwood & Harkness. The target filing date of June 15, 2025, is only 13 days from the date of this memorandum. The compressed timeline requires parallel execution of several preparatory steps:
(a) File Transfer. The relevant W&P file materials for Mr. Chen — including his complete petition history, all prior I-797 approval notices, prior LCAs, and PERM/I-140 documentation — must be received no later than June 10, 2025, to allow adequate time for review and incorporation into the new extension petition. Tanya Benavides has been instructed to prioritize the Chen Xiaoming file within the broader file transfer process.
(b) LCA Filing. A new LCA must be filed via the DOL FLAG system and certified before the I-129 extension petition can be submitted. LCA processing typically takes 7 business days from the date of filing. To ensure certification by June 13–15, 2025, the LCA must be filed no later than June 3, 2025 — the next business day following the date of this memorandum. Derek Okonkwo has been assigned to initiate the LCA filing immediately.
(c) I-129 Preparation. The I-129 extension petition and all supporting documentation — including the employer support letter to be signed by Dr. Yun-Sheng Chen, updated organizational chart, beneficiary documentation (passport, I-94, prior approval notices), and evidence of qualification — must be prepared concurrently with the LCA filing. Target completion for the I-129 package: June 12, 2025.
(d) Filing. The complete I-129 extension petition, together with the certified LCA, Form I-907 for premium processing, and all applicable government fees, must be assembled and filed with the California Service Center by June 15, 2025.
The tight timeline necessitates close coordination among all members of the Calderwood & Harkness team assigned to this matter, as well as prompt responsiveness from OWS contacts (particularly Rajesh Anand and Dr. Yun-Sheng Chen) in providing required documentation and reviewing the support letter.
3. Green Card Processing Coordination. Mr. Chen's green card processing is proceeding under the EB-2 preference category, with a priority date of April 5, 2024. The following information must be confirmed from the W&P files:
(a) Whether the PERM labor certification application (ETA Form 9089) has been approved by the Department of Labor. If the PERM was filed on or around the priority date of April 5, 2024, it has been pending for approximately 14 months, which may be consistent with current DOL processing timelines for PERM applications.
(b) Whether an I-140 immigrant visa petition has been filed with USCIS based on the approved (or pending) PERM labor certification. If the I-140 has been filed, the receipt notice, filing date, and current adjudication status are needed.
(c) The country of chargeability for Mr. Chen. Given his name, it is likely that Mr. Chen is chargeable to mainland China (People's Republic of China), which has a significant backlog in the EB-2 preference category. The current Visa Bulletin cutoff dates for EB-2 China must be analyzed to determine whether a visa number would be available to Mr. Chen based on his priority date. If a visa number is unavailable, this may support a three-year extension under INA § 106(b) if and when the I-140 is approved. If a visa number is available or is likely to become available in the near term, it may be appropriate to consider filing for adjustment of status (I-485) as an alternative or complementary strategy.
Mr. Chen's current H-1B validity period of August 15, 2023, through August 14, 2025, represents a two-year period (or a three-year extension, as noted in the case summary). Total cumulative H-1B time across all employers must be confirmed from the file transfer materials. If Mr. Chen is within the standard six-year limit, a standard three-year extension request is appropriate. The actual extension period granted by USCIS may be less than three years, depending on the status of the I-140 and visa number availability considerations.
4. Prevailing Wage and Compensation. The prevailing wage requirements for Mr. Chen's extension petition are consistent with those described in Section III.A. The applicable prevailing wage for SOC 17-2072 (Electronics Engineers, Except Computer) at Level III in the San Jose-Sunnyvale-Santa Clara MSA is $157,830 per year. Mr. Chen's total annual compensation is expected to be at the IC4 Senior Engineer level, comprising approximately $210,000 in base salary and $55,000 in annual RSU vesting, for a total of approximately $265,000. This exceeds the prevailing wage by approximately $107,170, providing a substantial margin of compliance with the LCA wage attestation requirements.
The new LCA filed for this extension must reflect the most current prevailing wage data available from the DOL OES survey. Derek Okonkwo should confirm the current prevailing wage determination at the time of LCA filing and ensure that the LCA accurately reflects the applicable wage level and source data.
5. Recommended Actions for Chen Xiaoming.
(a) File the new LCA immediately via the DOL FLAG system. Target filing date: June 3, 2025 (the next business day following the date of this memorandum). Derek Okonkwo assigned.
(b) Prepare the I-129 extension petition and employer support letter. Coordinate with Dr. Yun-Sheng Chen for the support letter and with Rajesh Anand for the updated organizational chart, job description, and beneficiary documentation. Target completion: June 12, 2025. Megan Chu and Derek Okonkwo assigned.
(c) File the I-129 extension petition with the California Service Center, together with the certified LCA, Form I-907 for premium processing, and all applicable government fees. Target filing date: June 15, 2025. Tanya Benavides assigned.
(d) Government fees: $5,435 (I-129 base: $780 + Fraud Prevention: $500 + ACWIA: $750 + Asylum Program: $600 + Premium Processing: $2,805). All fees paid by OWS.
(e) Calderwood & Harkness legal fees: Capped at $4,200 per the engagement letter.
(f) Obtain PERM/I-140 status from the W&P file transfer. Priority item for Tanya Benavides. Target receipt: June 10, 2025.
C. Arjun Krishnamurthy — Power Management IC Designer
1. Current Status and Petition History.
Mr. Krishnamurthy's H-1B validity period extends through November 30, 2025, providing approximately six months from the date of this memorandum before expiry. The extension petition should be filed in the August–September 2025 timeframe to fall within the 180-day advance filing window. While the filing timeline for the extension itself is less compressed than those for Mr. Nakamura and Mr. Chen, the pending PERM audit introduces a significant complication that requires immediate attention.
2. Green Card Processing and PERM Audit. Mr. Krishnamurthy's green card processing is proceeding under the EB-2 preference category, with a priority date of July 22, 2023. A PERM labor certification audit is currently pending, initiated during the engagement of prior counsel W&P. The PERM audit is one of three pending RFEs and audits being transitioned to Calderwood & Harkness as part of the W&P file transfer.
The PERM audit is a matter of serious concern for several reasons:
(a) Strict Response Deadlines. DOL PERM audit responses are subject to strict deadlines, typically 30 days from the date of the audit notification. Failure to respond within the deadline, or submission of an inadequate response, can result in denial of the labor certification application. Given that the audit was initiated during the W&P engagement and the file has not yet been fully transferred, there is a risk that the response deadline may be approaching or may have already been partially consumed.
(b) Impact on Green Card Processing. If the PERM audit results in denial of the labor certification, Mr. Krishnamurthy's entire EB-2 green card process would be disrupted. A new PERM application would need to be filed, resulting in a new priority date and a restart of the process. This could add years to Mr. Krishnamurthy's green card timeline, particularly given the significant backlogs in the EB-2 India preference category.
(c) Impact on Seventh-Year H-1B Extension Eligibility. As discussed below, Mr. Krishnamurthy may be approaching or at the six-year H-1B limit, and his eligibility for a seventh-year extension under INA § 106(a) or (b) depends on the status of his PERM and I-140 cases. A PERM denial would eliminate the pending PERM as a basis for a § 106(a) one-year extension, and would prevent the filing of an I-140 that could serve as the basis for a § 106(b) three-year extension.
(d) Scope and Nature of the Audit. The scope of the PERM audit request — whether it is a random audit, a targeted audit, or a supervised recruitment audit — must be determined from the W&P files. Different audit types require different levels of documentation and response effort. A supervised recruitment audit, for example, requires the employer to re-conduct the recruitment process under DOL supervision, which is substantially more time-consuming and costly than a standard audit response.
Action Item: Obtaining the complete PERM audit file from W&P is a critical priority. The file must include the audit notification letter, the audit response deadline, the specific documentation requested by DOL, and any draft response materials prepared by W&P. Calderwood & Harkness must assess whether to assume full responsibility for the audit response or to coordinate with W&P (specifically, Kavita Parekh) to ensure continuity. Megan Chu is assigned to obtain and review the PERM audit file by June 10, 2025.
3. Seventh-Year Extension Analysis. Mr. Krishnamurthy's current H-1B validity period is December 1, 2022, through November 30, 2025, representing three years of authorized H-1B status with OWS. As with the other beneficiaries, total cumulative H-1B time across all employers must be confirmed from the file transfer materials. If Mr. Krishnamurthy held H-1B status with one or more prior employers before joining OWS, those periods count toward the six-year maximum.
If Mr. Krishnamurthy is approaching or has reached the six-year limit, his extension beyond six years will require reliance on the AC21 provisions:
(a) INA § 106(a) — One-Year Extension. Mr. Krishnamurthy's PERM priority date of July 22, 2023, indicates that the PERM application was filed approximately 23 months ago as of the date of this memorandum. If the PERM has been pending for 365 days or more (which it has, assuming continuous pendency since the July 22, 2023, filing date), INA § 106(a) would support a one-year extension of H-1B status beyond the six-year limit. However, this analysis depends on the PERM remaining pending — if the PERM audit results in an approval, the one-year extension basis shifts to the pending I-140 (if filed); if the PERM is denied, the § 106(a) basis is eliminated unless and until a new PERM or I-140 is filed and has been pending for 365+ days.
(b) INA § 106(b) — Three-Year Extension. If the PERM is approved and an I-140 is subsequently filed and approved, and if an immigrant visa number is unavailable to Mr. Krishnamurthy under the applicable EB-2 preference category and country of chargeability, INA § 106(b) would support a three-year extension. Mr. Krishnamurthy's likely country of chargeability is India, which has a significant backlog in the EB-2 preference category. Current Visa Bulletin data for EB-2 India shows final action dates that are substantially retrogressed, meaning that visa numbers are unavailable for priority dates as recent as Mr. Krishnamurthy's (July 22, 2023). If the I-140 is approved and the visa number remains unavailable, the § 106(b) three-year extension would be the preferred pathway.
The critical variable in this analysis is the outcome of the pending PERM audit. Until the audit is resolved and the PERM status is determined, the seventh-year extension eligibility analysis remains contingent.
4. Recommended Actions for Krishnamurthy.
(a) Priority: Obtain and review the complete PERM audit file from W&P. Determine the audit response deadline and the scope of the audit request. Target: June 10, 2025. Megan Chu assigned.
(b) Assess whether Calderwood & Harkness should assume responsibility for the PERM audit response or coordinate with W&P to ensure timely submission. If Calderwood & Harkness assumes responsibility, prepare or finalize the audit response in accordance with applicable DOL requirements.
(c) Confirm total H-1B time accrued across all employers. Assess any recapturable time outside the United States. Target: June 20, 2025. Derek Okonkwo assigned.
(d) Begin LCA preparation by approximately August 2025, in advance of the extension filing target.
(e) Target I-129 extension filing: September 2025, within the 180-day advance filing window.
(f) Government fees: $5,435. Calderwood & Harkness legal fees: Capped at $4,200 per the engagement letter. PERM audit response work, if assumed by Calderwood & Harkness, will be billed separately on an hourly basis as compliance advisory.
D. Jae-Won Park — Analog IC Designer
1. Current Status and Petition History.
Mr. Park's H-1B validity period extends through March 31, 2026, providing the most lead time of the four beneficiaries — approximately ten months from the date of this memorandum. The 180-day advance filing window opens in early October 2025, and the extension filing is targeted for the October–November 2025 timeframe. This timeline allows ample opportunity for thorough preparation and for resolution of any issues identified during the file transfer process.
2. Green Card Processing Coordination. Mr. Park's green card processing is proceeding under the EB-2 preference category, with a priority date of November 20, 2023. The following information must be confirmed from the W&P file transfer:
(a) Whether the PERM labor certification application has been approved by the Department of Labor. Given the filing date of approximately November 20, 2023, the PERM has been pending for approximately 18 months, which is within the range of current DOL processing timelines.
(b) Whether an I-140 immigrant visa petition has been filed with USCIS. If so, the receipt notice, filing date, and current adjudication status are required.
(c) The country of chargeability for Mr. Park. Given his name, it is likely that Mr. Park is chargeable to South Korea. The EB-2 preference category for South Korea is generally more current than for India or China, but the specific Visa Bulletin analysis must be performed to determine visa number availability. If a visa number is available or expected to become available in the near term, it may be appropriate to consider filing for adjustment of status as the green card process matures.
3. Seventh-Year Extension Analysis. Mr. Park's current H-1B validity period is April 1, 2023, through March 31, 2026, representing three years. As with the other beneficiaries, total cumulative H-1B time across all employers must be confirmed. If Mr. Park is within the standard six-year limit, a standard three-year extension is available without resort to the AC21 seventh-year extension provisions.
If Mr. Park is approaching or exceeding the six-year limit, the same INA § 106(a) and § 106(b) analysis outlined for Mr. Krishnamurthy above would apply. The key variables are the PERM and I-140 status and the visa number availability under the applicable EB-2 category and country of chargeability.
Given Mr. Park's relatively recent priority date (November 20, 2023), it is less likely that the PERM or I-140 has been pending for 365+ days as of the expected extension filing date (October–November 2025), unless the PERM was filed significantly in advance of the priority date. This timing issue must be investigated as part of the file review.
4. Prevailing Wage and Compensation. The prevailing wage requirements for Mr. Park's extension petition are consistent with those for the other three beneficiaries. The applicable prevailing wage for SOC 17-2072, Level III, San Jose-Sunnyvale-Santa Clara MSA is $157,830 per year. Mr. Park's total annual compensation is expected to be at the IC4 Senior Engineer level, comprising approximately $210,000 in base salary and $55,000 in annual RSU vesting, for a total of approximately $265,000. This exceeds the prevailing wage by approximately $107,170, providing a substantial compliance margin.
A new LCA reflecting current prevailing wage data will be required for the extension filing. The LCA should be filed via the DOL FLAG system in September or October 2025, in advance of the I-129 filing.
5. Recommended Actions for Park.
(a) Lower immediate urgency; ample time for preparation allows for a standard preparation workflow.
(b) Obtain the PERM/I-140 case file from W&P as part of the broader file transfer. Target: June 15, 2025 (as part of the overall file transfer completion).
(c) Confirm total H-1B time accrued across all employers and assess seventh-year extension eligibility. Target: June 20, 2025. Derek Okonkwo assigned.
(d) Begin LCA preparation by approximately September 2025.
(e) Target I-129 extension filing: November–December 2025, within the 180-day advance filing window.
(f) Government fees: $5,435. Calderwood & Harkness legal fees: Capped at $4,200 per the engagement letter.
V. Cross-Cutting Issues
This section addresses issues that affect all four extension filings or that involve cross-functional coordination among the Calderwood & Harkness team, OWS personnel, and third parties.
A. File Transfer Coordination with Whitfield & Parekh LLP
Calderwood & Harkness transmitted a formal file transfer request to Kavita Parekh at Whitfield & Parekh LLP, 600 Wilshire Boulevard, Suite 1200, Los Angeles, CA 90017, on May 22, 2025. The request covered all immigration case files maintained by W&P on behalf of OWS, including but not limited to the files of the four beneficiaries addressed in this memorandum. The target completion date for the file transfer is June 15, 2025.
The following categories of materials are critical for the extension filings and must be obtained from W&P:
(a) All prior I-797 approval notices (I-797A and I-797B) for each beneficiary, documenting all prior H-1B approvals, change of status approvals, and extension approvals;
(b) All prior Labor Condition Applications (certified ETA Form 9035 and/or 9035E) filed for each beneficiary;
(c) All prior I-129 petitions and supporting documentation, including employer support letters, evidence of qualification, and beneficiary documentation submitted with each filing;
(d) Complete PERM case files for each beneficiary, including ETA Form 9089, recruitment documentation, prevailing wage determinations, supervised recruitment materials (if applicable), and all correspondence with DOL;
(e) I-140 receipt and/or approval notices for each beneficiary, along with any supporting documentation filed with the I-140;