ATTORNEY-CLIENT PRIVILEGED / ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP Immigration & Global Mobility Practice
MEMORANDUM
FROM: Dr. Lena Marchetti, Of Counsel, Calderwood & Harkness LLP
TO: Nathaniel Bower, Responsible Partner, Calderwood & Harkness LLP Patricia Langford, General Counsel, Optiwave Semiconductor Corp. Rajesh Anand, Immigration Program Manager, Optiwave Semiconductor Corp.
CC: Megan Chu, Lead Associate, Calderwood & Harkness LLP Derek Okonkwo, Working Associate, Calderwood & Harkness LLP
DATE: June 3, 2025
RE: EB-1B Outstanding Researcher Immigrant Petition — Status and Strategy Memorandum for Takeshi Nakamura, Signal Integrity Engineer, Optiwave Semiconductor Corp.
Engagement Reference: SC-OWS-2025-0520-IMM
Classification: Attorney-Client Privileged / Attorney Work Product
FEIN (Petitioner): 82-4931076
I. EXECUTIVE SUMMARY
The purpose of this memorandum is to provide a comprehensive status update on the pending EB-1B outstanding researcher immigrant visa petition for Takeshi Nakamura, and to analyze the applicable regulatory criteria, the current evidentiary posture, and strategic considerations going forward. This memorandum is prepared in connection with Calderwood & Harkness LLP's assumption of immigration counsel responsibilities from prior counsel, Whitfield & Parekh LLP, and is intended to orient the engagement team and the client's in-house stakeholders as to the current state of the matter and recommended next steps.
Beneficiary. Takeshi Nakamura currently holds the position of Signal Integrity Engineer at Optiwave Semiconductor Corp. ("OWS"), classified under Standard Occupational Classification ("SOC") code 17-2072 (Electronics Engineers, Except Computer). Mr. Nakamura's principal worksite is OWS Headquarters, located at 4820 Veltrano Parkway, Suite 300, San Jose, California 95134 ("Site A").
Classification Sought. The petition seeks classification under the employment-based first preference category for outstanding researchers, pursuant to Section 203(b)(1)(B) of the Immigration and Nationality Act ("INA") and the implementing regulation at 8 C.F.R. § 204.5(i). This classification is reserved for individuals who have been recognized internationally as outstanding in a specific academic area and who are seeking to enter or remain in the United States in a permanent research position.
Priority Date. The I-140 immigrant petition was filed by OWS as petitioner, establishing a priority date of September 10, 2022. This priority date positions Mr. Nakamura favorably under the EB-1 category, which is generally current for all chargeability areas, including Japan (Mr. Nakamura's country of chargeability).
Prior Counsel. The EB-1B petition was originally prepared and filed by Whitfield & Parekh LLP (Kavita Parekh, Partner, 600 Wilshire Boulevard, Suite 1200, Los Angeles, California 90017). Calderwood & Harkness LLP assumed responsibility for this matter upon the commencement of the firm's engagement with OWS on May 20, 2025. The case files are currently in the process of being transferred from Whitfield & Parekh LLP, with a target completion date for full receipt and inventory of June 15, 2025.
Concurrent Critical Issue — H-1B Status. Mr. Nakamura's H-1B nonimmigrant status presents a time-sensitive concurrent issue. His I-94 Arrival/Departure Record expired on May 31, 2025. An H-1B extension petition was filed on March 15, 2025 by Whitfield & Parekh LLP and remains pending before USCIS. Because the extension petition was timely filed prior to the expiration of the I-94, Mr. Nakamura's employment authorization continues under the 240-day automatic extension rule codified at 8 C.F.R. § 214.2(h)(2)(i)(H). However, a Request for Evidence ("RFE") has been issued by USCIS on the H-1B extension petition, challenging the specialty occupation classification of the Signal Integrity Engineer position. A separate RFE Response Strategy Memorandum is being prepared to address this matter.
Recommendations. We recommend that the engagement team and OWS stakeholders take the following actions: (1) monitor the EB-1B adjudication timeline closely and confirm case receipt and status details upon completion of the file transfer; (2) ensure rigorous coordination between the H-1B RFE response and the EB-1B petition's evidentiary posture to avoid any inconsistencies in position descriptions or educational requirements; and (3) prepare supplemental evidence proactively in the event that a separate RFE is issued on the EB-1B petition itself. Each of these recommendations is discussed in greater detail in the sections that follow.
II. BACKGROUND AND PROCEDURAL HISTORY
A. Beneficiary Profile — Takeshi Nakamura
The following summary presents the key biographical and immigration-related information for the beneficiary, Takeshi Nakamura, based on information available to Calderwood & Harkness LLP as of the date of this memorandum. Certain details remain subject to confirmation upon the completion of the file transfer from prior counsel.
Mr. Nakamura's current nonimmigrant status merits careful attention. His I-94 expired on May 31, 2025, three days prior to the date of this memorandum. The H-1B extension petition was timely filed on March 15, 2025 — approximately seventy-seven days before the I-94 expiration — which satisfies the regulatory requirement for triggering the 240-day automatic extension of employment authorization under 8 C.F.R. § 214.2(h)(2)(i)(H). Under this provision, Mr. Nakamura remains authorized to continue employment with OWS in the same position and at the same worksite for a period of up to 240 days from the date the I-94 expired, provided the extension petition remains pending or is approved. This 240-day period extends through approximately January 26, 2026, by which time the H-1B extension must be adjudicated to avoid any lapse in employment authorization.
It is important to note that although Mr. Nakamura's employment authorization is preserved during this period, his underlying H-1B status — for purposes other than employment (such as travel and re-entry) — is subject to certain limitations. We address these implications in Section VII below.
B. EB-1B Petition Filing History
The Form I-140, Immigrant Petition for Alien Workers, was filed under the EB-1B outstanding researcher classification by Whitfield & Parekh LLP on behalf of OWS as the petitioning employer. The petition established a priority date of September 10, 2022, which is the date that the I-140 was received by USCIS.
The filing was submitted to the USCIS service center responsible for processing I-140 petitions at the time of filing. Historically, EB-1B petitions have been routed to the Texas Service Center ("TSC"), located at 6046 N. Belt Line Road, Irving, Texas 75038, although USCIS has periodically redistributed caseloads among service centers. The specific service center and receipt number will be confirmed upon the completion of the file transfer.
Whether premium processing was elected at the time of filing is a matter that we have not yet been able to confirm from the available records. If premium processing was not initially selected, it may be available as an upgrade under current USCIS guidelines, which permit the filing of Form I-907, Request for Premium Processing Service (currently $2,805), for pending I-140 petitions. Premium processing would guarantee an initial response (either an approval, denial, notice of intent to deny, or request for evidence) within fifteen business days of USCIS's receipt of the I-907. The advisability of such an upgrade is discussed in Section VIII below.
As of the date of this memorandum, the EB-1B petition remains pending before USCIS. No Request for Evidence has been issued on the I-140, and no approval notice has been received. We will verify the current adjudication status through the USCIS online case status system as soon as the I-140 receipt number is confirmed from the transferred files.
The EB-1B case file is included in the inventory of materials being transferred from Whitfield & Parekh LLP. Tanya Benavides, Paralegal Specialist at Calderwood & Harkness LLP, is tracking the receipt and completeness of the transferred materials via the firm's File Transfer Acknowledgment & Inventory Checklist. Full receipt of all EB-1B materials is anticipated by June 15, 2025. Upon receipt, the undersigned and the associate team will conduct a comprehensive review of the filed petition, supporting exhibits, and all correspondence with USCIS.
C. Relationship to Other Pending Matters
Mr. Nakamura's EB-1B petition exists within the context of OWS's broader immigration portfolio, and several related matters bear directly or indirectly on the strategy for this case.
H-1B Extension and Pending RFE. The most immediately consequential related matter is Mr. Nakamura's H-1B extension petition, filed on March 15, 2025, which is subject to a pending Request for Evidence. The RFE challenges whether the Signal Integrity Engineer position qualifies as a "specialty occupation" within the meaning of INA § 214(i)(1) and 8 C.F.R. § 214.2(h)(4)(ii). A separate RFE Response Strategy Memorandum is being prepared by the undersigned and Megan Chu, Lead Associate, to address the substance of the RFE and develop the response. The resolution of the H-1B RFE has indirect but important implications for the EB-1B petition: the job description and educational requirements set forth in the H-1B petition must remain materially consistent with those presented in the EB-1B petition. Any substantive discrepancy between the two filings could create a credibility issue that USCIS might use to undermine either or both petitions. This coordination requirement is discussed at length in Section VII.
PERM Labor Certification — Not Required. A significant advantage of the EB-1B classification is that it does not require PERM labor certification, unlike the EB-2 and EB-3 immigrant visa categories. PERM labor certification, administered by the U.S. Department of Labor under 20 C.F.R. Part 656, requires a lengthy and procedurally complex recruitment process, including supervised recruitment, prevailing wage determinations, and potential audits. By proceeding under EB-1B, Mr. Nakamura's green card pathway bypasses these requirements entirely, resulting in a substantially streamlined process and reduced exposure to the delays and uncertainties inherent in PERM.
Other OWS Immigration Matters. For context, seven other OWS visa holders have PERM cases either pending or approved, comprising six EB-2 cases and one EB-3 case. Mr. Nakamura's EB-1B filing represents the only first-preference immigrant petition in the OWS immigration portfolio, apart from the I-140 implications that may arise in connection with the O-1A nonimmigrant status holders at OWS. The favorable positioning of the EB-1B category relative to the EB-2 and EB-3 backlogs — particularly for beneficiaries chargeable to India, which affects several other OWS employees — underscores the strategic value of maintaining and securing Mr. Nakamura's EB-1B petition.
III. REGULATORY FRAMEWORK — EB-1B OUTSTANDING RESEARCHER CLASSIFICATION
A. Statutory and Regulatory Basis
The EB-1B outstanding researcher classification derives from Section 203(b)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(B), which provides for immigrant visa classification for aliens who are "outstanding professors and researchers." The implementing regulation is found at 8 C.F.R. § 204.5(i).
To qualify for classification as an outstanding researcher under this provision, the petitioner must establish a three-part test. Specifically, the petition must demonstrate that:
(1) The beneficiary is recognized internationally as outstanding in a specific academic area;
(2) The beneficiary has at least three years of experience in teaching or research in the academic area; and
(3) The beneficiary seeks to enter the United States to pursue tenure, tenure-track teaching, or a comparable permanent research position at a university, institution of higher education, or private employer.
Each of these three elements must be independently satisfied. The burden of proof rests with the petitioner — in this case, OWS — to establish eligibility by a preponderance of the evidence. See Matter of Chawathe, 25 I&N Dec. 369, 375–76 (AAO 2010) (establishing the preponderance of evidence standard for immigration benefit applications). The analysis below addresses each element in the context of Mr. Nakamura's qualifications and the position offered by OWS.
B. Evidentiary Standard — 8 C.F.R. § 204.5(i)(3)
To demonstrate that the beneficiary is recognized internationally as outstanding in a specific academic area, the regulation at 8 C.F.R. § 204.5(i)(3) requires the petitioner to submit evidence that the beneficiary satisfies at least two of the following six regulatory criteria:
1. Major prizes or awards for outstanding achievement in the academic field. Documentation of receipt of major prizes or awards for outstanding achievement in the academic field, as evidenced by the criteria used to grant the awards, the significance of the awarding organization, and the selectivity of the award.
2. Membership in associations that require outstanding achievements of their members, as judged by recognized national or international experts. Documentation establishing membership in associations in the academic field that require outstanding achievements of their members, where the outstanding nature of the achievements is determined by recognized national or international experts in the discipline.
3. Published material in professional publications written by others about the beneficiary's work in the academic field. Evidence of published material in professional publications written by others about the beneficiary's work, including the title, date, and author of the material, as well as any necessary translation.
4. Participation as a judge of the work of others in the same or allied academic field. Evidence of the beneficiary's participation, either individually or on a panel, as a judge of the work of others in the same or an allied academic field, such as service as a peer reviewer for scholarly journals or participation in the review of conference submissions.
5. Original scientific or scholarly research contributions to the academic field. Evidence of the beneficiary's original scientific or scholarly research contributions to the academic field, including but not limited to published papers, patents, and documentation demonstrating that the beneficiary's work has had a significant impact on the field.
6. Authorship of scholarly books or articles in scholarly journals with international circulation. Evidence of the beneficiary's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
Satisfaction of at least two of these six criteria is a necessary — but not in itself sufficient — condition for approval of the petition. USCIS applies a two-step analytical framework derived from the Ninth Circuit's decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Under the Kazarian framework:
Step One — Regulatory Criteria. The adjudicator first determines whether the petitioner has submitted qualifying evidence to meet at least two of the six regulatory criteria. At this stage, the inquiry is whether the evidence, on its face, satisfies the plain language of the criterion. The adjudicator should not impose novel substantive or evidentiary requirements beyond those set forth in the regulation.
Step Two — Final Merits Determination. If the petitioner has established at least two criteria, the adjudicator then conducts a "final merits determination," examining the totality of the evidence to assess whether the beneficiary has, in fact, attained the level of international recognition as an outstanding researcher that the statute and regulations contemplate. This holistic evaluation may consider the quality, significance, and cumulative weight of all evidence submitted, including evidence that was relevant to the individual criteria as well as any additional evidence bearing on the beneficiary's standing in the field.
The Kazarian two-step framework has been adopted by USCIS in its adjudicative guidance and is consistently applied in the adjudication of EB-1B petitions. It is critical that the evidentiary strategy for Mr. Nakamura's petition address both steps — not only demonstrating satisfaction of at least two regulatory criteria but also presenting a compelling totality-of-the-evidence narrative supporting his international recognition as an outstanding researcher in the field of signal integrity for photonic integrated circuits.
C. Permanent Research Position Requirement
The third element of the EB-1B test requires that the beneficiary seek to enter or remain in the United States to pursue a permanent research position. The regulation at 8 C.F.R. § 204.5(i)(3)(iii) distinguishes between positions at universities or institutions of higher education, on the one hand, and positions with private employers, on the other.
For a private employer such as OWS — as distinguished from a university or institution of higher education — the regulation imposes two additional showing requirements:
(a) The employer must demonstrate that it employs at least three persons full-time in research positions; and
(b) The employer must have achieved documented accomplishments in the academic field.
These requirements are designed to ensure that the private employer is a bona fide research enterprise with a meaningful and established research program, rather than a commercial entity that merely employs the beneficiary in an applied engineering role without a broader research mission. The analysis of OWS's qualifications as a private employer is presented in Section V below.
Additionally, the position must be "permanent" in nature — that is, it must be an ongoing, indefinite, or unlimited-duration position, rather than a temporary, fixed-term, contract, or project-based engagement. USCIS adjudicators scrutinize the permanence of the position to ensure that the EB-1B classification is not used to sponsor beneficiaries in positions that are functionally temporary or contingent.
IV. ANALYSIS OF EVIDENTIARY CRITERIA — NAKAMURA'S QUALIFICATIONS
A. Overview of Nakamura's Professional Background
Mr. Nakamura's area of specialization is signal integrity engineering in the context of photonic integrated circuits ("PICs") for data center interconnects. This is a highly specialized subdomain within electrical engineering and semiconductor physics, focused on ensuring the fidelity, timing, and quality of electrical and optical signals as they traverse the complex architectures of photonic-based interconnect systems. The field has grown in strategic and commercial significance in recent years as data centers seek to overcome the bandwidth limitations of traditional copper-based interconnects by transitioning to photonic solutions.
Mr. Nakamura holds an advanced degree in electrical engineering. The specific degree (Ph.D. or Master's), granting institution, and date of conferral will be confirmed upon receipt of the file transfer from Whitfield & Parekh LLP. Regardless of the precise degree level, Mr. Nakamura's research experience substantially exceeds the three-year minimum requirement for the EB-1B classification. He has been employed at OWS since at least June 2022 (the start of his most recent H-1B validity period), and we understand that he possesses additional prior research experience that predates his employment with OWS. The full chronology of Mr. Nakamura's research and professional experience will be documented upon review of the transferred files.
OWS's business activities are directly and substantively aligned with Mr. Nakamura's research specialty. OWS specializes in the design and fabrication of photonic integrated circuits for data center interconnect applications, operating under NAICS code 334413 (Semiconductor and Related Device Manufacturing). Mr. Nakamura's role within OWS involves core research activities that are integral to the company's principal product line and technological mission. This alignment strengthens both the EB-1B petition — by demonstrating that the beneficiary's research area directly corresponds to the employer's documented accomplishments — and the characterization of the position as a permanent research role.
B. Criteria Analysis (Preliminary, Pending File Transfer)
The following analysis of the six regulatory criteria is necessarily preliminary, as the complete petition file has not yet been received from prior counsel. Upon receipt and review of the filed petition and all supporting exhibits, this analysis will be updated and refined. The preliminary assessments below are based on information currently available to Calderwood & Harkness LLP from initial client discussions, publicly available records, and materials provided during the engagement onboarding process.
Criterion 1: Major Prizes or Awards for Outstanding Achievement
The first criterion requires documentation of major prizes or awards for outstanding achievement in the academic field. This criterion is generally the most difficult to satisfy, as USCIS adjudicators tend to require that the awards be of significant stature within the field, rather than routine recognitions such as institutional teaching awards, conference participation certificates, or employer-granted honors.
Our preliminary understanding is that Mr. Nakamura has received at least one notable recognition in his field. However, the specific documentation — including the identity of the awarding organization, the criteria and selection process for the award, the number of recipients relative to the pool of eligible candidates, and the reputation of the award within the photonics and signal integrity community — must be reviewed upon receipt of the petition file from Whitfield & Parekh LLP. We will assess whether the evidence submitted with the original petition is sufficient to satisfy this criterion or whether supplemental documentation would be advisable.
Criterion 2: Membership in Associations Requiring Outstanding Achievement
The second criterion requires evidence of membership in associations in the academic field that require outstanding achievements of their members, where the outstanding nature of those achievements is evaluated by recognized national or international experts. The key issue under this criterion is whether the relevant professional associations have genuinely selective membership requirements — as opposed to associations that admit members based solely on the payment of dues or a stated interest in the field.
We will assess whether Mr. Nakamura holds memberships in selective professional societies within the fields of electrical engineering, photonics, or semiconductor technology. Examples of organizations that may satisfy this criterion include, depending on their specific membership requirements, the Optical Society (Optica), IEEE Photonics Society (at the Fellow or Senior Member level, which requires peer nomination and outstanding contributions), or similar bodies with documented selectivity requirements. The complete membership documentation will be compiled and evaluated upon receipt of the transferred files.
Criterion 3: Published Material About the Beneficiary
The third criterion requires evidence of published material in professional publications written by others about the beneficiary's work in the academic field. This criterion is distinct from Criterion 6 (authorship of scholarly articles by the beneficiary) and focuses on third-party recognition — that is, instances where other authors, journalists, or commentators have written about Mr. Nakamura's research or contributions.
Qualifying evidence may include media coverage, feature articles, profiles in industry publications, or sections of scholarly review articles or textbooks that discuss or cite Mr. Nakamura's work as particularly noteworthy. The challenge under this criterion is that the published material must be specifically about the beneficiary's work, rather than merely citing or referencing it in passing. We will review the original petition file and conduct supplemental research to determine whether Mr. Nakamura's work has been the subject of such publications and whether the documentation submitted with the original filing is sufficient to satisfy this criterion.
Criterion 4: Judging the Work of Others
The fourth criterion requires evidence of the beneficiary's participation as a judge of the work of others in the same or an allied academic field. The most common form of evidence for this criterion is documentation of service as a peer reviewer for scholarly journals or as a reviewer of submissions to academic conferences.
Our preliminary indication is that Mr. Nakamura has served as a peer reviewer for scholarly journals and/or conference proceedings in the fields of photonics and signal integrity. If so, qualifying documentation would include invitation letters from journal editors requesting Mr. Nakamura's review services, correspondence reflecting completed reviews, or verification from the journal or conference confirming Mr. Nakamura's reviewer role. The number and frequency of review invitations can also support the inference that the beneficiary's expertise is recognized by the scholarly community. We will gather and supplement this documentation as needed upon receipt of the transferred files.
Criterion 5: Original Scientific or Scholarly Research Contributions
The fifth criterion requires evidence of original scientific or scholarly research contributions to the academic field. This is a broad criterion and encompasses a wide range of evidence, including published research papers, issued patents, evidence that the beneficiary's work has been adopted or implemented by others in the field, citation analysis, and expert testimony as to the significance and originality of the beneficiary's contributions.
This criterion is expected to be one of the two primary criteria for Mr. Nakamura's EB-1B petition, and the evidentiary posture appears strong. Mr. Nakamura's work at OWS on signal integrity for PIC-based data center interconnects is directly tied to OWS's core product innovation. We anticipate that the evidence will document original contributions of significance to the field through multiple channels, including:
• Issued or pending patents related to signal integrity innovations in photonic integrated circuits;
• Technical publications describing novel methodologies, architectures, or findings developed by Mr. Nakamura;
• Evidence demonstrating the impact of Mr. Nakamura's work on OWS's product development and, more broadly, on the state of the art in the PIC signal integrity domain; and
• Expert testimony from independent researchers attesting to the originality and significance of Mr. Nakamura's contributions.
An important cross-reference arises in connection with this criterion. OWS maintains a Technology Control Plan ("TCP") that governs the handling of controlled technical data and technology in compliance with U.S. export control regulations. Certain aspects of Mr. Nakamura's research may implicate deemed export considerations under the Export Administration Regulations ("EAR"), 15 C.F.R. § 734.2(b)(2)(ii), which defines a "deemed export" as the release of controlled technology to a foreign national within the United States. To the extent that Mr. Nakamura's research involves technology controlled under the EAR or the International Traffic in Arms Regulations ("ITAR"), the scope of publishable or disclosable research may be limited, and coordination with OWS's export control compliance team will be necessary to determine the extent to which specific research contributions can be documented in the EB-1B petition and any supplemental filings. We recommend that Rajesh Anand coordinate with OWS's export control officer to confirm the parameters of disclosure for purposes of the immigration filing.
Criterion 6: Authorship of Scholarly Articles in Scholarly Journals with International Circulation
The sixth criterion requires evidence of the beneficiary's authorship of scholarly books or articles in scholarly journals with international circulation in the academic field. This is the second criterion that we expect to serve as a primary basis for the EB-1B petition.
Our preliminary indication is that Mr. Nakamura has authored or co-authored scholarly articles in journals with international circulation in the fields of photonics, signal integrity, and semiconductor engineering. Upon receipt of the transferred files, we will confirm the specific publication list, including journal names, publication dates, co-author information, and the international circulation and reputation of each journal. We will also assess whether the original petition filing included documentation establishing the international circulation and scholarly nature of the journals, which USCIS requires to differentiate scholarly publications from trade magazines, newsletters, or non-peer-reviewed outlets.
Together with Criterion 5 (original research contributions), Criterion 6 is expected to form the primary evidentiary foundation for Mr. Nakamura's EB-1B petition. The combination of authored publications and documented research contributions of significance to the field provides a natural and internally consistent evidentiary narrative.
C. Final Merits Determination — Kazarian Totality of the Evidence
As discussed in Section III.B above, satisfaction of at least two of the six regulatory criteria constitutes only the first step of the Kazarian analysis. Under the second step — the final merits determination — the USCIS adjudicator will evaluate whether the totality of the evidence demonstrates that Mr. Nakamura has achieved international recognition as an outstanding researcher in his specific academic field.
This holistic evaluation is qualitative in nature and considers the cumulative weight and significance of all evidence submitted, not merely the evidence directed toward individual regulatory criteria. Key factors that the adjudicator will likely consider include:
• Citation count and impact of publications. The frequency and breadth of citations to Mr. Nakamura's published work, as reflected in citation databases such as Severin Industries Scholar, Hollowell Data Systems, or Web of Science, can serve as a quantitative indicator of the impact and recognition of his research within the field. Citation analysis is a standard evidentiary tool in EB-1B petitions, and updated citation indices should be compiled and submitted as supplemental evidence if the figures have materially increased since the original filing.
• Significance of research contributions to the PIC/signal integrity field. The adjudicator will assess whether Mr. Nakamura's contributions represent genuinely original and significant advances in the field, as distinguished from routine or incremental work. Expert letters from independent researchers — i.e., individuals who are not colleagues, co-authors, or employees of OWS — are critical to establishing the significance of the beneficiary's contributions in the eyes of the broader research community.
• Expert letters and independent attestations. Letters from nationally or internationally recognized experts in photonics, signal integrity, and semiconductor engineering, attesting to Mr. Nakamura's reputation and standing in the field, are among the most impactful forms of evidence in the final merits determination. The letters should be specific and substantive, identifying particular contributions by Mr. Nakamura and explaining why those contributions are significant to the field. Generic or formulaic letters carry substantially less weight.
• Caliber of OWS's research program. The reputation and accomplishments of OWS itself can indirectly support the inference that Mr. Nakamura is an outstanding researcher by demonstrating that he works in a competitive, high-caliber research environment that attracts and retains top talent.
We anticipate that supplemental evidence may be required to strengthen the final merits determination, particularly in the following areas:
• Updated citation indices reflecting any growth in citation counts since the original filing in September 2022;
• Two to three additional recommendation letters from independent researchers outside of OWS who can attest to Mr. Nakamura's reputation and the impact of his work;
• Evidence of Mr. Nakamura's research being adopted, referenced, or built upon by other institutions, companies, or research groups; and
• Any new achievements, publications, or recognitions obtained by Mr. Nakamura since the original filing date.
The preparation of supplemental evidence is discussed further in Section VIII below.
V. OWS'S QUALIFICATION AS A PRIVATE EMPLOYER WITH DISTINGUISHED REPUTATION
A. Three Full-Time Researchers Requirement
As set forth in Section III.C, the regulation at 8 C.F.R. § 204.5(i)(3)(iii) requires that a private employer petitioning under the EB-1B classification demonstrate that it employs at least three persons full-time in research positions. This requirement is intended to ensure that the employer maintains a bona fide research program and is not merely a commercial enterprise with no genuine research function.
OWS clearly satisfies this requirement. The company currently employs multiple individuals in full-time research-oriented positions, including at minimum the following individuals who hold research titles and maintain research responsibilities:
• Dr. Seo-Yeon Cho, Principal Photonics Researcher (currently authorized under O-1A nonimmigrant status);
• Dr. Vikram Iyer, Chief Architect, PIC Platform (currently authorized under O-1A nonimmigrant status);
• Dr. Amara Osei-Bonsu, Lead Quantum Photonics Scientist (currently authorized under O-1A nonimmigrant status); and
• Mr. Takeshi Nakamura, Signal Integrity Engineer (the beneficiary of the subject EB-1B petition).
In addition to these four named individuals, OWS employs additional engineering and scientific staff in research-oriented roles across all three of its facilities: San Jose, California (approximately 210 employees), Austin, Texas (approximately 65 employees), and Portland, Oregon (approximately 40 employees). The total headcount of approximately 315 employees across these three locations includes a significant proportion engaged in research and development activities integral to OWS's core business of photonic integrated circuit design and fabrication.
The requirement of at least three full-time research employees is therefore readily met, and the evidence to support this showing should include organizational charts, position descriptions for research personnel, and declarations from OWS management attesting to the research functions and full-time status of the identified employees.
B. Documented Accomplishments in the Academic Field
In addition to the three-researcher minimum, OWS must demonstrate that it has achieved "documented accomplishments" in the academic field. This requirement is interpreted broadly to encompass accomplishments in the broader research and technical domain relevant to the beneficiary's area of specialization — in this case, photonic integrated circuit design and fabrication for data center interconnects.
OWS's documented accomplishments in this field are substantial and include the following:
• Revenue and Commercial Success. OWS reported annual revenue of $187.4 million for fiscal year 2024, as reflected in audited financial statements prepared by Pendleton Accounting Group LLP (engagement partner: Marcus Hensley, CPA). This revenue figure reflects the commercial viability and market acceptance of OWS's photonic integrated circuit products and demonstrates that the company's research and development activities have yielded commercially significant results.
• Company Formation and Growth Trajectory. OWS was incorporated on March 14, 2017 in the State of Delaware and has experienced rapid growth in the specialized semiconductor and photonics market. The company's trajectory from formation to nearly $200 million in annual revenue in approximately seven years underscores its position as a significant player in the PIC industry.
• Venture Capital Investment. OWS's research and commercial program has attracted significant institutional investment. Crestline Ventures Fund IV, LP acquired a 62.4% equity stake in OWS on September 15, 2022, reflecting the recognized commercial viability and technological promise of OWS's research platform. Venture capital investment of this magnitude in a semiconductor company is indicative of the quality and commercial relevance of the company's research accomplishments.
• Patent Portfolio. OWS maintains a patent portfolio covering innovations in photonic integrated circuit design and fabrication. The specific patents will be documented in the evidentiary submission and demonstrate OWS's contributions to the advancement of the field.
• Published Research by OWS Scientists. OWS's research staff — including its O-1A nonimmigrant holders Dr. Cho, Dr. Iyer, and Dr. Osei-Bonsu — have published research in peer-reviewed scholarly journals, further establishing the company's reputation as a contributor to the academic and scientific knowledge base in photonics and semiconductor engineering.
• Industry and Market Position. OWS's products serve the data center interconnect market, which is a critical and rapidly growing segment within the broader semiconductor industry. The company's position in this market reflects the practical impact and relevance of its research and development accomplishments.
Supporting evidence for OWS's documented accomplishments should include corporate profile materials, press releases, patent listings from the USPTO database, published papers by OWS researchers, financial statements from Pendleton Accounting Group LLP, and any industry awards or recognitions received by the company. This evidence will be compiled and organized as part of the supplemental evidence package discussed in Section VIII.
C. Permanent Nature of the Position
The EB-1B classification requires that the offered position be a permanent research position. The term "permanent" in this context means a position of indefinite or unlimited duration, as opposed to a temporary, project-based, or contractual engagement. USCIS adjudicators will scrutinize the employment relationship to determine whether the position is genuinely permanent and whether it involves bona fide research activities.
Mr. Nakamura's position as Signal Integrity Engineer at OWS satisfies the permanence requirement. The position is a full-time, ongoing, regular employee position with no fixed term, end date, or project-specific limitation. Mr. Nakamura is employed as a regular full-time employee of OWS, not as a contractor, consultant, or temporary worker. His employment records, offer letter documentation, and any applicable employment agreement will establish the permanent and indefinite nature of the role.
Additionally, the position involves research activities that are integral to OWS's core PIC product line. Mr. Nakamura's role is not a peripheral or ancillary function but is central to the company's mission of developing and refining photonic integrated circuits for data center interconnect applications. The research nature of the position is supported by Mr. Nakamura's day-to-day activities, which include the investigation of novel signal integrity challenges in photonic systems, the development and testing of original solutions, and the dissemination of research findings through publications and patent filings. These activities distinguish the position from a purely applied or operational engineering role and establish its character as a research position within the meaning of the EB-1B regulation.
VI. PRIORITY DATE AND VISA BULLETIN IMPLICATIONS
A. Priority Date
Mr. Nakamura's priority date for purposes of the EB-1B classification is September 10, 2022, established by the filing of the I-140 petition with USCIS on that date. The priority date determines Mr. Nakamura's place in the immigrant visa queue and is the key variable in determining when he becomes eligible to file an adjustment of status application (Form I-485) or be scheduled for consular processing to obtain his immigrant visa.
The EB-1B category falls within the first preference employment-based classification ("EB-1"), and Mr. Nakamura is chargeable to Japan based on his country of birth. Japan falls within the "All Chargeability Areas Except Those Listed" category in the Department of State's monthly Visa Bulletin — meaning that Japan-chargeable applicants are subject to the same cut-off dates as applicants from most countries (excluding China-mainland born, India, Mexico, and the Philippines, which are separately listed).
B. Current Visa Bulletin Analysis
The EB-1 category for all chargeability areas (including Japan) has historically been current or near-current, meaning that there is generally no significant backlog or retrogression for EB-1 applicants from Japan. This stands in marked contrast to the EB-2 category for India, which has experienced severe retrogression and currently has cut-off dates many years behind the present date. This disparity is directly relevant to OWS's immigration portfolio, as several other OWS beneficiaries are pursuing EB-2 pathways and are subject to significantly longer wait times.
For reference, the following table summarizes the priority dates for other OWS beneficiaries with pending PERM or I-140 cases in the EB-2 and EB-3 categories:
Mr. Nakamura's September 10, 2022 priority date in the EB-1 category, combined with Japan chargeability, places him in a substantially more favorable position than the EB-2 India-chargeable beneficiaries, whose priority dates are unlikely to become current for several years under current State Department projections.
With a current priority date — as is expected to be the case based on recent Visa Bulletin data — Mr. Nakamura would be eligible to file his I-485 adjustment of status application or pursue consular processing immediately upon approval of his I-140 petition.
Recommended Action. We recommend that the engagement team monitor the monthly Visa Bulletin published by the Department of State's Bureau of Consular Affairs to confirm the continued current status of the EB-1 category for Japan chargeability. Any retrogression in the EB-1 category affecting Japan would materially affect the timeline for I-485 filing and should be reported to all stakeholders immediately.
C. Implications for Adjustment of Status
Upon approval of the I-140 petition with a current priority date, Mr. Nakamura may file Form I-485 (Application to Register Permanent Residence or Adjust Status) to obtain lawful permanent resident status without departing the United States. The I-485 may be filed concurrently with applications for employment authorization (Form I-765, Application for Employment Authorization) and advance parole (Form I-131, Application for Travel Document), which provide independent bases for work authorization and international travel, respectively, during the pendency of the I-485.
Current Status Considerations. As noted above, Mr. Nakamura's I-94 expired on May 31, 2025, and he is currently authorized to remain and work in the United States solely under the 240-day automatic extension provision applicable to his timely-filed H-1B extension petition. A threshold question arises as to whether Mr. Nakamura is eligible to file an I-485 application while in the 240-day extension period.
Generally, an applicant for adjustment of status under INA § 245(a) must be "present in the United States" and, for employment-based cases, should be in a lawful nonimmigrant status or otherwise eligible for adjustment. USCIS has generally treated individuals in the 240-day extension period as maintaining their H-1B status for purposes of I-485 eligibility, provided that the underlying extension petition was timely filed and remains pending or is subsequently approved. The regulatory basis for this treatment is that the 240-day extension provision authorizes continued employment pending adjudication and is functionally treated as an extension of the nonimmigrant status itself. However, this is an area where USCIS policy guidance has evolved, and we will confirm the current adjudicative approach before filing any I-485 application for Mr. Nakamura.
AC21 Benefits of an Approved I-140. An approved I-140 provides Mr. Nakamura with important ancillary benefits beyond the direct path to adjustment of status. Most significantly, under Section 104(c) of the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"), codified as amended at INA § 106(a), an H-1B nonimmigrant whose employer has filed an I-140 that has been approved is eligible for H-1B extensions beyond the standard six-year maximum in one-year increments. If the I-140 is approved and the beneficiary's priority date is not current, the extensions are granted in one-year increments; if the priority date is current, three-year extensions are available.
For Mr. Nakamura, the primary benefit of an approved I-140 is eligibility for I-485 filing (if the priority date is current), and, in the interim — or if the priority date were to retrogress — eligibility for unlimited H-1B extensions in one-year or three-year increments under AC21 § 104(c). This provides an indefinite basis for lawful work authorization while green card processing continues, regardless of how long the overall process takes. It is worth noting that AC21 § 106(b) extensions based on a pending PERM labor certification application are not applicable to Mr. Nakamura's case, as no PERM was filed (the EB-1B pathway bypasses PERM entirely).
VII. COORDINATION WITH PENDING H-1B EXTENSION AND RFE
A. H-1B Extension — Current Status
The following table summarizes the key parameters of Mr. Nakamura's pending H-1B extension petition:
As previously discussed, Mr. Nakamura's employment authorization continues under the 240-day automatic extension rule at 8 C.F.R. § 214.2(h)(2)(i)(H). This provision applies because the H-1B extension petition was timely filed prior to the expiration of Mr. Nakamura's I-94 on May 31, 2025. Under this rule, Mr. Nakamura may continue employment with OWS in the same position and at the same worksite (Site A, San Jose, California) for up to 240 days from the I-94 expiration date — that is, through approximately January 26, 2026 — provided the extension petition remains pending.
It is critical to note the following limitations of the 240-day extension period:
• Employment only. The 240-day extension authorizes continued employment only. It does not, by itself, authorize Mr. Nakamura to travel internationally and re-enter the United States. If Mr. Nakamura were to depart the United States during the 240-day extension period, he would not be able to re-enter on the expired I-94, and re-entry would require either an approved H-1B extension with a valid visa stamp or some other basis for admission.
• Same employer, same position. The 240-day extension authorizes employment only with the petitioning employer (OWS) and in the same position as specified in the pending extension petition. Any change of employer or material change in job duties would require a new petition and would not be covered by the 240-day extension.
• Termination upon adjudication. The 240-day extension period terminates upon the adjudication of the extension petition — either approval or denial. If the extension is approved, a new I-94 and validity period will be issued. If the extension is denied, employment authorization ceases immediately upon the date of the denial, and Mr. Nakamura would be required to cease employment and depart the United States (or obtain an alternative basis for lawful status and employment authorization).
B. Pending RFE on H-1B Extension — Specialty Occupation Challenge
USCIS has issued a Request for Evidence on Mr. Nakamura's H-1B extension petition, challenging whether the Signal Integrity Engineer position qualifies as a "specialty occupation" within the meaning of INA § 214(i)(1) and 8 C.F.R. § 214.2(h)(4)(ii). Under the regulatory definition, a "specialty occupation" is one that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum requirement for entry into the occupation.
The substance of the H-1B RFE and the strategy for responding to it are being addressed in a separate RFE Response Strategy Memorandum, currently being prepared by the undersigned and Megan Chu, Lead Associate. For purposes of this EB-1B Status Memorandum, the critical point is the consistency requirement between the H-1B and EB-1B filings.
Critical Consistency Requirement. The job description, educational requirements, and overall characterization of the signal Integrity Engineer position must be materially consistent across both the H-1B petition and the EB-1B petition. USCIS maintains consolidated records and may cross-reference filings made on behalf of the same beneficiary and petitioner. Any material discrepancy between the position descriptions or educational requirements in the two filings could undermine the credibility of either or both petitions and could be cited by an adjudicator as evidence of fraud, misrepresentation, or inconsistency.
Specifically, the EB-1B petition describes the signal Integrity Engineer position as a permanent research position requiring advanced expertise in signal integrity for photonic systems. The H-1B petition must similarly characterize the position as requiring, at minimum, a bachelor's degree (or its equivalent) in a directly related specialty — such as electrical engineering, photonics, or semiconductor physics. The two characterizations are not in tension per se, as a position can be both a "specialty occupation" for H-1B purposes and a "permanent research position" for EB-1B purposes. However, the specific job duties, percentage breakdowns, supervisory structure, and educational requirements must align.
Recommended Action. Before submitting the H-1B RFE response, the engagement team should cross-reference all position descriptions, job duty breakdowns, and educational requirements across both filings. Any inconsistencies should be identified and resolved, either by ensuring that the H-1B RFE response aligns with the EB-1B petition or, if necessary, by preparing a supplemental filing on the EB-1B to update or clarify the position description. Derek Okonkwo, Working Associate, should prepare a side-by-side comparison of the position descriptions in both filings as a priority task.
C. Contingency Planning
Given the interdependencies between Mr. Nakamura's H-1B extension and EB-1B petition, it is prudent to plan for multiple scenarios:
Scenario 1: H-1B Extension Denied. If the H-1B extension petition is denied, Mr. Nakamura would lose his basis for work authorization immediately upon the date of denial. In this scenario, the timeline for EB-1B I-140 approval becomes critically important. If the I-140 has been approved and Mr. Nakamura's priority date is current, an I-485 adjustment of status application could potentially be filed, accompanied by an I-765 application for an Employment Authorization Document ("EAD"). However, there would likely be a gap between the loss of H-1B work authorization and the receipt of an EAD, during which Mr. Nakamura would be unable to work. This gap could range from several weeks to several months, depending on USCIS processing times. Additionally, there are legal questions regarding whether an individual whose H-1B extension has been denied can file an I-485 — the analysis depends on the specific circumstances and the applicant's "last admitted in" status. This contingency underscores the importance of resolving the H-1B RFE favorably and, independently, accelerating the EB-1B adjudication (including through premium processing, if advisable).
Scenario 2: H-1B Extension Approved. This is the preferred outcome. If the H-1B extension is approved, Mr. Nakamura maintains H-1B status and work authorization while awaiting EB-1B I-140 adjudication and subsequent I-485 processing. An approved H-1B extension also provides a secure basis for Mr. Nakamura to travel internationally and re-enter the United States (subject to obtaining a new H-1B visa stamp at a U.S. consulate, if needed).
Scenario 3: RFE Issued on the EB-1B Petition. Although no RFE has been issued on the I-140 as of the date of this memorandum, the possibility should be anticipated. The most common RFE issues on EB-1B petitions relate to (a) the sufficiency of evidence under the regulatory criteria, (b) the quality or independence of expert letters, (c) the permanent and research nature of the offered position, and (d) the employer's qualifications as a private employer with documented accomplishments. We recommend that a supplemental evidence strategy be prepared in advance so that any RFE can be responded to promptly. Key elements of such a supplemental package would include updated publication records, current citation data, additional independent expert letters, and updated documentation of OWS's research accomplishments.
Priority Assessment. Resolving the H-1B RFE favorably is the most time-sensitive matter in Mr. Nakamura's immigration portfolio, as it directly affects his near-term work authorization and ability to remain in the United States. The EB-1B petition represents the long-term pathway to permanent residence and is not subject to the same immediate time pressure, but it should be actively managed and monitored to ensure the most efficient path to permanent residence.
VIII. OUTSTANDING ACTION ITEMS AND RECOMMENDATIONS
A. Immediate Actions (By June 15, 2025)
The following action items should be completed by June 15, 2025, corresponding to the target date for completion of the file transfer from Whitfield & Parekh LLP:
1. Complete file transfer receipt. Confirm receipt of the complete EB-1B petition file from Whitfield & Parekh LLP, including the filed Form I-140, all supporting exhibits (expert letters, publication records, job description, OWS corporate documentation, educational credentials, and any other materials), the I-140 receipt notice, and any correspondence with USCIS. Tanya Benavides, Paralegal Specialist, is responsible for tracking receipt via the File Transfer Acknowledgment & Inventory Checklist. Upon confirmed receipt, Ms. Benavides should circulate the completed checklist to the undersigned, Megan Chu, and Derek Okonkwo for review.
2. Obtain receipt number and case status. If the I-140 receipt number is not already available from OWS or from the engagement onboarding materials, retrieve it from the transferred file and check the current adjudication status through the USCIS online case status system at egov.uscis.gov. Report the case status to all memorandum recipients.
3. Review filed petition for consistency. Upon receipt of the EB-1B petition file, conduct a thorough review of the filed petition and all supporting exhibits. Cross-reference the EB-1B job description, position characterization, and evidentiary submissions with the H-1B extension petition and the pending RFE to identify any inconsistencies requiring attention. Derek Okonkwo should prepare a side-by-side comparison matrix of the position descriptions, educational requirements, and job duty breakdowns across both filings and circulate the comparison to the undersigned and Megan Chu.
4. Assess premium processing eligibility. Determine whether premium processing (Form I-907, currently $2,805) is available for the pending I-140. If premium processing was not elected at the time of filing, assess whether an upgrade is available under current USCIS guidelines and whether it is advisable given the current case posture, the status of the H-1B extension, and the priority date analysis. Prepare a recommendation for the client on whether to proceed with premium processing, including a cost-benefit analysis and timeline implications.
B. Near-Term Actions (June – August 2025)
The following action items should be completed during the June through August 2025 timeframe:
5. Prepare supplemental evidence package. Compile an updated evidence package to supplement the original EB-1B filing, including: (a) an updated list of Mr. Nakamura's publications, with full bibliographic citations; (b) updated citation indices from Severin Industries Scholar, Hollowell Data Systems, or Web of Science, reflecting any growth in citations since the original filing in September 2022; (c) documentation of any new achievements, awards, publications, or recognitions obtained by Mr. Nakamura since the original filing date; and (d) two to three additional independent expert letters, if the original filing included fewer than the recommended number or if the original letters are not sufficiently specific or persuasive. Independent expert letters should be solicited from researchers at institutions or companies other than OWS who can attest to Mr. Nakamura's reputation and the significance of his contributions to the field.
6. Coordinate H-1B RFE response. Ensure that the H-1B RFE response (being prepared under separate cover) does not create any inconsistency with the EB-1B petition's characterization of the signal Integrity Engineer position. All drafts of the H-1B RFE response should be reviewed against the EB-1B petition file before finalization and submission. The undersigned and Megan Chu are jointly responsible for this coordination.
7. Monitor Visa Bulletin. Confirm each month that the EB-1 category for Japan chargeability (All Chargeability Areas) remains current by reviewing the Visa Bulletin published by the Department of State. Derek Okonkwo should incorporate this into the monthly monitoring calendar and report any changes to the undersigned and Rajesh Anand.
8. Prepare I-485 filing package. If the I-140 is approved and Mr. Nakamura's priority date is current, be prepared to file the I-485 adjustment of status application promptly. Advance preparation should include: (a) scheduling Mr. Nakamura's medical examination with a USCIS-designated civil surgeon for completion of Form I-693 (Report of Medical Examination and Vaccination Record); (b) preparing the Form I-765 (Application for Employment Authorization Document) for concurrent filing; (c) preparing the Form I-131 (Application for Travel Document / Advance Parole) for concurrent filing; and (d) compiling all required supporting documents, including passport copies, I-94 records, birth certificate and translation, photographs, and financial documentation.
C. Ongoing / Long-Term
The following action items are ongoing or long-term in nature and should be incorporated into the engagement management framework:
9. H-1B extension beyond six years. Once the I-140 is approved, Mr. Nakamura becomes eligible for H-1B extensions beyond the standard six-year maximum in one-year or three-year increments under AC21 § 104(c), codified as amended at INA § 106(a). This eligibility applies regardless of whether the priority date is current and provides Mr. Nakamura with an indefinite basis for lawful work authorization while green card processing continues. The engagement team should note this benefit and plan for timely filing of post-sixth-year H-1B extension petitions as needed.
10. Coordinate with