MEMORANDUM
PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT This memorandum is a privileged and confidential attorney-client communication and constitutes attorney work product prepared in anticipation of litigation or in connection with the provision of legal advice. This document is not to be disclosed to any third party without the prior written consent of Calderwood & Harkness LLP. Unauthorized disclosure may result in waiver of applicable privileges.
FROM: Megan Chu, Lead Associate, Calderwood & Harkness LLP Derek Okonkwo, Working Associate, Calderwood & Harkness LLP
TO: Nathaniel Bower, Responsible Partner, Calderwood & Harkness LLP Patricia Langford, General Counsel, Optiwave Semiconductor Corp.
CC: Dr. Lena Marchetti, Of Counsel, Calderwood & Harkness LLP Rajesh Anand, Immigration Program Manager, Optiwave Semiconductor Corp. Tanya Benavides, Paralegal, Calderwood & Harkness LLP
DATE: June 8, 2025
RE: PERM Case Status Summary & Green Card Strategy — Optiwave Semiconductor Corp.
ENGAGEMENT REFERENCE: SC-OWS-2025-0520-IMM
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I. Executive Summary
The purpose of this memorandum is to provide a comprehensive summary of all pending and approved PERM (Program Electronic Review Management) labor certification cases and the related EB-1B outstanding researcher petition sponsored by Optiwave Semiconductor Corp. ("OWS" or the "Company") on behalf of key engineering personnel. This memorandum has been prepared following the transition of immigration files from OWS's prior immigration counsel, Whitfield & Parekh LLP ("W&P"), whose engagement with OWS concluded on April 30, 2025.
Calderwood & Harkness LLP assumed full responsibility for all immigration matters on behalf of OWS effective May 20, 2025, pursuant to the engagement letter executed on that date under reference SC-OWS-2025-0520-IMM. The comprehensive file transfer from W&P is targeted for completion by June 15, 2025, and efforts to expedite the transfer of certain time-sensitive files are underway.
Scope of Coverage. This memorandum covers a total of eight (8) green card matters: seven (7) PERM labor certification cases (six classified under the EB-2 advanced degree professional category and one classified under the EB-3 skilled worker/professional category) and one (1) EB-1B outstanding researcher petition filed on behalf of Takeshi Nakamura. These eight matters collectively represent OWS's current green card sponsorship pipeline for its most critical engineering talent.
Key Findings. Our preliminary review, based on information available from OWS's internal records, communications with Rajesh Anand, and limited information provided by W&P during the transition, has identified the following matters requiring immediate attention:
• Krishnamurthy DOL Audit. The PERM application filed on behalf of Arjun Krishnamurthy, Power Management IC Designer, is currently under audit by the U.S. Department of Labor ("DOL"). This audit requires a timely and comprehensive response, and the precise deadline for submission must be confirmed immediately upon receipt of the audit file from W&P. This is the single most urgent matter in the portfolio.
• I-140 Filing Readiness. Several beneficiaries may have PERM applications that have already been certified, which would allow for the prompt filing of I-140 Immigrant Worker Petitions with U.S. Citizenship and Immigration Services ("USCIS"). Filing I-140 petitions as soon as practicable is critical to locking in priority dates, particularly given the significant visa backlogs in the EB-2 and EB-3 India categories.
• H-1B Timing Coordination. Two beneficiaries — Chen Xiaoming and Takeshi Nakamura — face imminent or already-passed H-1B expiration dates, requiring urgent extension filings. The PERM and I-140 status for these individuals directly impacts their eligibility for extensions of H-1B status beyond the standard six-year maximum under the American Competitiveness in the Twenty-First Century Act ("AC21").
• EB-1B / H-1B RFE Coordination (Nakamura). Nakamura's pending EB-1B petition must be coordinated with an active Request for Evidence ("RFE") issued by USCIS on his H-1B extension petition, and with the 240-day automatic extension of work authorization currently in effect. A separate strategy memorandum on the RFE response was issued on May 25, 2025, and Dr. Lena Marchetti has prepared a detailed EB-1B petition status memorandum dated June 3, 2025.
OWS Employer Profile. For reference throughout this memorandum, the key employer particulars are as follows:
• Legal Name: Optiwave Semiconductor Corp.
• Incorporation: State of Delaware
• Headquarters: 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134
• FEIN: 82-4931076
• NAICS Code: 334413 (Semiconductor and Related Device Manufacturing)
• Approximate Headcount: 340 employees
• Annual Revenue (FY2024): $187.4 million, per audited financial statements prepared by Pendleton Accounting Group LLP
• Majority Shareholder: Crestline Ventures Fund IV, LP (62.4% equity interest, acquired September 15, 2022)
This memorandum is organized to provide: (i) an overview of the PERM process and green card pathways; (ii) the status of the file transition from W&P; (iii) individualized case summaries for each beneficiary; (iv) a consolidated case status matrix; (v) visa bulletin analysis and priority date projections; (vi) ability-to-pay analysis; (vii) seventh-year H-1B extension implications; (viii) immediate action items and prioritized recommendations; (ix) a preliminary budget estimate; and (x) appendices containing key regulatory references, file transfer documentation requests, and coordination contacts.
II. Background: PERM Program and Green Card Pathway Overview
This section provides a brief overview of the PERM labor certification process and the employment-based green card pathways relevant to OWS's sponsored beneficiaries. This background is intended to ensure that all recipients of this memorandum share a common understanding of the procedural framework, terminology, and strategic considerations that inform the case-specific analysis in subsequent sections.
A. The PERM Labor Certification Process
The Program Electronic Review Management system, commonly known as PERM, is the process by which U.S. employers obtain a labor certification from the DOL, administered by the DOL's Office of Foreign Labor Certification ("OFLC"). The labor certification is filed on ETA Form 9089 (Application for Permanent Employment Certification) and serves as the DOL's determination that (i) there are insufficient available, qualified, and willing U.S. workers for the position offered to the foreign national beneficiary, and (ii) the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The PERM process requires the employer to conduct a good-faith recruitment effort for the position in question prior to filing the ETA Form 9089. For professional positions (those requiring at least a bachelor's degree), the recruitment must include, at a minimum: (i) a job order placed with the appropriate State Workforce Agency ("SWA") for a period of thirty (30) days; (ii) two (2) advertisements placed in a newspaper of general circulation on two different Sundays; and (iii) three (3) additional recruitment steps selected from a list of ten (10) alternatives set forth in 20 CFR § 656.17(e)(1)(ii), which include postings on employer websites, job search websites, on-campus recruiting, trade or professional organization postings, employee referral programs, and other methods. Additionally, the employer must post an internal notice of the filing at the worksite for a period of ten (10) consecutive business days.
Following the completion of recruitment activities, the employer must prepare a recruitment report summarizing the results of the recruitment, including the number of applicants, the qualifications of each applicant reviewed, and the lawful job-related reasons for rejecting any U.S. worker applicants. The employer then files the ETA Form 9089 electronically with the OFLC. Upon filing, the application is either certified, denied, or selected for audit. Audit selection may occur randomly or based on specific flags identified by the OFLC's automated review system.
The PERM labor certification is the critical first step in the EB-2 and EB-3 employment-based green card process, and the filing date of the PERM application establishes the beneficiary's "priority date" — a concept of paramount importance, as discussed further below.
B. The Three-Step Employment-Based Green Card Process
The employment-based permanent residence process for categories requiring labor certification (EB-2 and EB-3) consists of three sequential steps:
1. Step One: PERM Labor Certification (DOL). As described above, the employer obtains a certified labor certification from the DOL, establishing that no qualified U.S. workers are available for the sponsored position.
2. Step Two: I-140 Immigrant Worker Petition (USCIS). Upon certification of the PERM application, the employer files Form I-140, Immigrant Petition for Alien Workers, with USCIS. The I-140 petition establishes that the beneficiary possesses the qualifications required for the certified position, that the position and the beneficiary meet the requirements for the applicable employment-based preference category (EB-2 or EB-3), and that the employer has the ability to pay the proffered wage from the priority date onward.
3. Step Three: I-485 Adjustment of Status or Consular Processing. Once the I-140 is approved and an immigrant visa number becomes available to the beneficiary (as determined by the monthly Visa Bulletin published by the Department of State), the beneficiary may apply for permanent residence either by filing Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS while physically present in the United States, or by processing an immigrant visa application at a U.S. consulate abroad.
C. The EB-1B Outstanding Researcher Category
The EB-1B outstanding researcher classification, codified at INA § 203(b)(1)(B) and 8 CFR § 204.5(i), provides an alternative pathway to permanent residence that does not require PERM labor certification. Under this category, the petitioning employer files an I-140 petition directly with USCIS, demonstrating that the beneficiary has achieved international recognition for outstanding achievements in a particular academic field, and that the beneficiary is being offered a permanent research position with the employer. The regulations at 8 CFR § 204.5(i)(3) require the petitioner to submit evidence in at least two of six specified categories of recognition. This pathway is relevant to the Nakamura matter discussed in Section IV.D below.
D. Priority Date and the Visa Bulletin
The concept of the "priority date" is central to the employment-based green card process. For PERM-based cases (EB-2 and EB-3), the priority date is the date on which the PERM application is filed with the DOL. For EB-1B cases, the priority date is the date on which the I-140 petition is filed with USCIS (or, in some circumstances, an earlier I-140 filing under a different category). The priority date determines the beneficiary's place in the immigrant visa queue.
Because the number of employment-based immigrant visas issued each year is limited by statute (approximately 140,000 per year across all employment-based categories), and because per-country limits cap the number of visas available to nationals of any single country at approximately 7% of the worldwide total, significant backlogs have developed for nationals of high-demand countries — most notably India and China. The Department of State publishes a monthly Visa Bulletin that sets forth the "final action dates" and "dates for filing" for each preference category and country of chargeability. A beneficiary's immigrant visa application may only be adjudicated when the beneficiary's priority date is earlier than the applicable date published in the Visa Bulletin.
E. OWS's Current Immigration Portfolio
Of OWS's approximately eighteen (18) active nonimmigrant visa holders, seven (7) have PERM labor certification applications that have been filed or approved, and one (1) additional employee has an EB-1B petition pending. These eight individuals represent the Company's current green card sponsorship pipeline and are the subject of this memorandum. The remaining visa holders may be candidates for future PERM processing depending on OWS's long-term retention and workforce planning objectives, as discussed in Section IX below.
III. File Transition Status — Whitfield & Parekh LLP
A. Scope of File Transfer
All seven (7) PERM case files and the one (1) EB-1B petition file are included in the comprehensive file transfer from Whitfield & Parekh LLP, the firm that previously handled OWS's immigration matters. The W&P point of contact for the file transfer is Kavita Parekh, Partner, whose offices are located at 600 Wilshire Boulevard, Suite 1200, Los Angeles, CA 90017. Calderwood & Harkness issued a formal file transfer request letter to Ms. Parekh on May 22, 2025, with a target completion date of June 15, 2025. The letter requested both physical files (to the extent original documents are maintained) and electronic copies of all case files, correspondence, and supporting documentation.
B. Expected File Contents
For each of the seven PERM cases, the file transfer is expected to include the following categories of documentation:
• ETA Form 9089 — both the filed version and any certified copies, along with confirmation of the filing date and DOL case number
• Recruitment Documentation — including copies of all advertisements (newspaper ads, online postings, SWA job orders, and any additional recruitment steps), proof of publication, internal posting notices, and the employer's signed recruitment report
• Prevailing Wage Determinations ("PWDs") — issued by the DOL National Prevailing Wage Center ("NPWC"), setting forth the applicable prevailing wage for the position based on the Standard Occupational Classification ("SOC") code, geographic area, and wage level
• Employer Attestations — signed attestations by the employer regarding the terms and conditions of the offered position, including confirmation that the position is a bona fide job opening and that the employer will pay the proffered wage
• Audit Response Materials — to the extent any case has been audited, all documentation prepared or submitted in response to the audit
• DOL Correspondence — all correspondence received from the DOL, including filing confirmations, audit notifications, certifications, denials, or other determinations
For the Nakamura EB-1B petition, the file transfer should include the complete I-140 petition as filed, all supporting exhibits (including publications, citation evidence, recommendation letters, and evidence of international recognition), the USCIS receipt notice, and any subsequent correspondence or notices from USCIS.
C. Priority Transfer Items
The Krishnamurthy audit file has been designated as the highest-priority item for immediate transfer. As discussed in detail in Section IV.G below, the PERM application for Krishnamurthy is currently under DOL audit, and the audit response deadline must be confirmed and met without delay. We have communicated this priority to Ms. Parekh and have requested that the Krishnamurthy file be transmitted in advance of the general file transfer if the full transfer cannot be completed before the audit response deadline.
D. File Inventory and Completeness Review
Tanya Benavides, Paralegal, is coordinating the preparation of a comprehensive file inventory checklist for each of the eight cases. Upon receipt of the transferred files, Ms. Benavides will conduct a preliminary completeness review against the checklist and flag any missing or incomplete documentation for follow-up with W&P. We anticipate that the completeness review will be completed within five (5) business days of file receipt.
E. Coordination with Pendleton Accounting Group LLP
In addition to the legal files from W&P, certain financial documentation previously provided in support of PERM filings — including audited financial statements, federal corporate tax returns, and other ability-to-pay evidence — may have been transmitted directly from OWS's outside accounting firm, Pendleton Accounting Group LLP. Marcus Hensley, CPA, is the engagement partner at Pendleton. We will coordinate with Mr. Hensley to confirm what financial documentation was previously provided to W&P, ensure that Calderwood & Harkness has complete copies, and request any additional financial documentation needed for pending I-140 filings and future PERM matters.
IV. Individual PERM Case Summaries
This section provides a detailed summary of each PERM case and the EB-1B petition, including current status, key dates, visa bulletin implications, and recommended action items. The information presented is based on records provided by OWS and preliminary communications with W&P, and is subject to revision upon receipt and review of the complete case files.
A. Dr. Ankit Mehrotra — Senior Photonics Engineer
Case Notes. Dr. Mehrotra holds a Ph.D. in Electrical Engineering (Photonics) from Stanford University and serves as a Senior Photonics Engineer in OWS's Photonic Integrated Circuits ("PIC") division. His position involves the design and characterization of silicon photonic transceivers, and he is considered a key contributor to OWS's next-generation product platform. The PERM application was filed under SOC 17-2199, which is the residual "Engineers, All Other" classification that maps most closely to photonics engineering positions, as no specific SOC code exists for this specialization. The offered wage of $210,000 base salary (plus equity compensation in the form of RSUs) substantially exceeds the Level III prevailing wage of $152,506 per year, and no issues are anticipated regarding the prevailing wage comparison.
Visa Bulletin Implications. Dr. Mehrotra's EB-2 priority date of March 15, 2024 will be subject to the visa bulletin queue applicable to his country of chargeability, which is determined by country of birth. If Dr. Mehrotra is chargeable to India (country of birth), the EB-2 India category is subject to a significant multi-year backlog, with final action dates for EB-2 India currently in the range of 2011–2013 (subject to monthly fluctuation). Under this scenario, Dr. Mehrotra would face a substantial wait before his priority date becomes current for final action, though the "dates for filing" chart published by the Department of State may permit earlier filing of a Form I-485 to secure certain benefits, including employment authorization and advance parole. If Dr. Mehrotra is chargeable to a country other than India or China, the EB-2 category is generally current for most other countries, and green card processing could proceed more expeditiously. We must confirm Dr. Mehrotra's country of birth to complete this analysis.
Action Items:
1. Confirm PERM certification status from W&P files upon receipt.
2. If certified, prepare I-140 petition with supporting evidence, including academic credentials, experience letters, and job description.
3. Obtain audited financial statements and/or tax returns from Pendleton Accounting Group LLP for ability-to-pay demonstration covering the priority date year (2024) through the present.
4. Confirm Dr. Mehrotra's country of chargeability (country of birth) and assess visa bulletin projections accordingly.
5. Evaluate whether cross-chargeability through a spouse's country of birth may be applicable.
B. Sunita Raghavan — Process Integration Engineer
Case Notes. Ms. Raghavan joined OWS via an H-1B transfer from a prior employer in January 2024 and currently serves as a Process Integration Engineer responsible for semiconductor fabrication process development and yield optimization. Her position requires a master's degree in materials science, electrical engineering, or a closely related field, which she holds from the University of Michigan. The PERM application was filed under the standard SOC 17-2072 code, which is the appropriate classification for electronics engineers not specifically focused on computer hardware. The offered wage is consistent with OWS's internal compensation bands and exceeds the Level III prevailing wage.
Visa Bulletin Implications. Ms. Raghavan's EB-2 priority date of June 1, 2024 is subject to the same backlog analysis as Dr. Mehrotra's case. If India-chargeable, the wait time will be substantial. Chargeability must be confirmed to assess the timeline accurately. Ms. Raghavan's H-1B status is valid through January 14, 2027, which provides a reasonable runway for maintaining lawful status while the green card process proceeds, though extensions beyond the six-year maximum may eventually be necessary depending on the pace of visa bulletin movement.
Action Items:
1. Confirm PERM certification status from W&P files.
2. If certified, prepare I-140 petition with supporting evidence.
3. Coordinate ability-to-pay documentation with Pendleton Accounting Group LLP.
4. Confirm country of chargeability and conduct visa bulletin analysis.
C. Jae-Won Park — Analog IC Designer
Case Notes. Mr. Park serves as an Analog IC Designer in OWS's mixed-signal design group and is responsible for the design and verification of analog front-end circuits used in OWS's optical transceiver products. His position requires a master's degree in electrical engineering with coursework in analog circuit design and semiconductor device physics. Mr. Park holds an M.S. in Electrical Engineering from the Korea Advanced Institute of Science and Technology (KAIST) and has approximately six years of progressive post-master's experience in analog and mixed-signal IC design.
H-1B Expiry Considerations. Mr. Park's current H-1B authorization expires on March 31, 2026. Depending on when Mr. Park first entered H-1B status, this may represent the approaching end of his initial six-year maximum period of H-1B eligibility. If Mr. Park requires H-1B extensions beyond March 31, 2026, eligibility for such extensions will depend on the status of his green card process. Specifically, under INA § 106(a) (as amended by AC21), Mr. Park may be eligible for one-year extensions of H-1B status beyond the six-year maximum if a PERM application or I-140 petition was filed at least 365 days before the date on which he would reach his six-year H-1B limit and the application or petition remains pending or approved. Given Mr. Park's PERM priority date of November 20, 2023, this filing predates any potential March 31, 2026 max-out by well over 365 days, satisfying the threshold requirement — provided the PERM application is still pending, has been certified, or an I-140 has been filed or approved.
Accordingly, prompt confirmation of the PERM certification status and expedited I-140 filing are particularly important in Mr. Park's case to ensure that his eligibility for seventh-year H-1B extensions is well-documented and defensible.
Visa Bulletin Implications. Mr. Park's priority date of November 20, 2023 is the earliest EB-2 PERM priority date in OWS's portfolio (Krishnamurthy's priority date of July 22, 2023 is earlier, but his case is under audit and certification is not yet secured). If Mr. Park is chargeable to South Korea, the EB-2 category for South Korean nationals is generally current or only minimally retrogressed, and Mr. Park may be able to proceed to I-485 filing in the near term upon I-140 approval. If chargeable to India or China, the backlog analysis described in Section VI applies. Chargeability must be confirmed.
Action Items:
1. Prioritize I-140 filing to support future H-1B extensions beyond the six-year limit.
2. Confirm PERM certification status from W&P files.
3. Assess cross-chargeability if applicable (e.g., through spouse's country of birth).
4. Prepare H-1B extension filing strategy for March 31, 2026 expiry, coordinating with PERM/I-140 timeline.
D. Takeshi Nakamura — Signal Integrity Engineer
Case Notes. Mr. Nakamura is a Signal Integrity Engineer in OWS's high-speed interconnect group. Unlike the other beneficiaries in this portfolio, Mr. Nakamura's green card case is being pursued under the EB-1B outstanding researcher classification, which does not require a PERM labor certification. The EB-1B petition was filed directly with USCIS under 8 CFR § 204.5(i)(3), asserting that Mr. Nakamura has achieved international recognition for outstanding research contributions in the field of signal integrity and electromagnetic compatibility in high-speed semiconductor packaging, and that OWS is offering him a permanent research position. A detailed analysis of the EB-1B petition, including the evidentiary basis and adjudication outlook, is set forth in the EB-1B Petition Status Memorandum prepared by Dr. Lena Marchetti, Of Counsel, dated June 3, 2025. We incorporate that memorandum by reference and do not duplicate its full analysis here.
H-1B Extension and RFE. Mr. Nakamura's H-1B status expired on May 31, 2025. An extension petition was filed by W&P on March 15, 2025, prior to the expiration of the current validity period. Pursuant to the regulatory provision at 8 CFR § 214.2(h)(2)(i)(H), Mr. Nakamura is authorized to continue employment with OWS for up to 240 days beyond the expiration of his I-94, provided that the extension petition was timely filed and remains pending. This 240-day window provides protection through approximately January 26, 2026, though adjudication of the extension petition before that date is strongly preferred.
USCIS has issued a Request for Evidence ("RFE") on the H-1B extension petition, challenging the specialty occupation classification of the Signal Integrity Engineer position. A separate RFE Response Strategy Memorandum was issued by this office on May 25, 2025, and the response is being prepared. The coordination between the H-1B extension RFE response, the 240-day rule, and the pending EB-1B adjudication is critical and must be managed carefully.
Priority Date Significance. Mr. Nakamura's priority date of September 10, 2022 is the earliest priority date among all OWS green card cases. The EB-1B category generally enjoys more favorable visa bulletin treatment than EB-2 or EB-3. EB-1 worldwide final action dates are typically current or near-current, and EB-1 India final action dates, while subject to some retrogression in recent years, are significantly more favorable than EB-2 India. If Mr. Nakamura is chargeable to Japan, his priority date is almost certainly current, and I-485 filing could proceed upon I-140 approval. Even if chargeable to India, a September 2022 EB-1 priority date is reasonably well-positioned.
Action Items:
1. Obtain the complete EB-1B petition file from W&P, including the filed I-140 petition, all exhibits, and USCIS correspondence.
2. Monitor EB-1B adjudication status.
3. Coordinate with H-1B extension RFE response timeline and 240-day rule compliance.
4. Assess I-485 filing eligibility based on current visa bulletin upon I-140 approval.
5. Prepare I-485 application materials in advance to enable filing promptly upon I-140 approval if the priority date is current.
E. Hyun-Soo Kim — Layout Design Engineer
Case Notes. Mr. Kim serves as a Layout Design Engineer in OWS's physical design group, where he is responsible for full-custom analog and mixed-signal layout for high-speed transceiver integrated circuits. His PERM application was filed under the EB-3 category (skilled worker/professional), which requires only a bachelor's degree for the "professional" subcategory or two years of training or experience for the "skilled worker" subcategory. The EB-3 classification was presumably selected by prior counsel based on the minimum requirements of the position as described in the ETA Form 9089.
EB-3 vs. EB-2 Reclassification Analysis. A significant strategic question in Mr. Kim's case is whether the position and/or Mr. Kim's qualifications support classification under the EB-2 advanced degree professional category rather than EB-3. The EB-2 category requires either (i) an advanced degree (master's or higher) or (ii) a bachelor's degree plus at least five years of progressive post-baccalaureate experience in the specialty. EB-2 classification is strongly preferred because the EB-3 India backlog is dramatically longer than the EB-2 India backlog. If Mr. Kim is chargeable to India or another backlogged country, the difference between EB-2 and EB-3 classification could translate to a difference of many years — potentially decades — in the wait time for an immigrant visa.
We must review Mr. Kim's academic credentials and work experience to determine whether he holds an advanced degree or possesses a bachelor's degree with the requisite five years of progressive experience. If EB-2 eligibility can be established, and if the minimum requirements of the position can be adjusted to require an advanced degree or equivalent, filing a new PERM application under the EB-2 category should be seriously considered. The existing EB-3 PERM and any resulting I-140 approval should be preserved to lock in the February 28, 2024 priority date, which may be portable to the new EB-2 petition in certain circumstances.
If Mr. Kim is chargeable to South Korea, the EB-3 worldwide category may be current or nearly current, making the reclassification question less urgent but still worth evaluating as a risk-mitigation measure.
Action Items:
1. Confirm PERM certification status from W&P files.
2. Evaluate whether EB-2 reclassification is feasible based on Mr. Kim's credentials and the position requirements.
3. If EB-3 PERM is certified, file I-140 to lock in the February 28, 2024 priority date.
4. If EB-2 reclassification is viable, initiate a new PERM process under EB-2 with appropriately adjusted position requirements.
5. Discuss long-term strategy with Mr. Kim, including realistic timeline expectations for EB-3 vs. EB-2.
F. Chen Xiaoming — Reliability Engineer
Case Notes. Mr. Chen serves as a Reliability Engineer in OWS's quality and reliability group, where he is responsible for failure analysis, accelerated life testing, and qualification of photonic integrated circuit products. He holds a master's degree in materials science and engineering from Tsinghua University and has approximately four years of post-master's experience in semiconductor reliability engineering.
Critical Timing — H-1B Extension. Mr. Chen's current H-1B authorization expires on August 14, 2025, which is approximately two months from the date of this memorandum. USCIS regulations permit the filing of H-1B extension petitions up to six months (180 days) in advance of the requested start date, which means the filing window for an extension with a start date of August 15, 2025 opened on approximately February 14, 2025. To ensure timely receipt and adjudication, the H-1B extension petition should be filed no later than approximately June 15, 2025 — one week from the date of this memorandum. The H-1B extension filing is tracked separately in the H-1B Extension Strategy Memorandum dated June 2, 2025, but the PERM and I-140 status for Mr. Chen directly impacts the basis for the extension and, critically, any future eligibility for extensions beyond the six-year H-1B maximum.
If the PERM application has been certified and an I-140 can be filed and approved before Mr. Chen reaches his six-year H-1B limit, he will have a stronger basis for seventh-year extensions under AC21 § 104(c) (three-year extensions with an approved I-140 and unavailable visa number) or, at a minimum, AC21 § 106(a) (one-year extensions with a pending or approved PERM/I-140 filed 365+ days before max-out).
Visa Bulletin Implications. Mr. Chen's EB-2 priority date of April 5, 2024 is subject to the backlog analysis applicable to his country of chargeability. If chargeable to China, the EB-2 China category has experienced retrogression, though less severe than EB-2 India. The current final action dates for EB-2 China have generally been in the 2020–2021 range in recent months, suggesting that a 2024 priority date may face a multi-year wait but not the decades-long backlog faced by EB-2 India. If chargeable to a non-backlogged country, processing may proceed more quickly. Chargeability must be confirmed.
Action Items:
1. Immediately confirm PERM status upon file receipt from W&P.
2. File H-1B extension no later than June 15, 2025 — coordination between PERM/I-140 status and extension filing is critical (see separate H-1B Extension Strategy Memorandum dated June 2, 2025).
3. If PERM is certified, prepare I-140 on an expedited basis.
4. Coordinate with Pendleton Accounting Group LLP for ability-to-pay evidence.
5. Confirm country of chargeability (China presumed based on name, but must be verified by country of birth).
G. Arjun Krishnamurthy — Power Management IC Designer
Case Notes. Mr. Krishnamurthy serves as a Power Management IC Designer in OWS's power management division, where he designs voltage regulator and power delivery integrated circuits for OWS's optical transceiver modules. He holds an M.S. in Electrical Engineering from the Indian Institute of Technology Madras and has approximately five years of post-master's experience in analog/power management IC design.
DOL Audit — Detailed Analysis. The PERM application filed on behalf of Mr. Krishnamurthy by Whitfield & Parekh LLP has been selected for audit by the DOL. This is the most time-sensitive and highest-risk matter in OWS's green card portfolio, and resolution of the audit is a prerequisite to any further progress in Mr. Krishnamurthy's green card case.
The DOL audit process requires the employer to submit a comprehensive package of documentation demonstrating compliance with all PERM recruitment and filing requirements. Based on standard DOL audit procedures, the audit response for Mr. Krishnamurthy's case will likely require the following documentation:
• Job Order with State Workforce Agency ("SWA"): Proof that a job order was placed with the California Employment Development Department (EDD) for a period of thirty (30) consecutive days.
• Newspaper Advertisements: Copies of two (2) Sunday advertisements placed in a newspaper of general circulation in the San Jose-Sunnyvale-Santa Clara metropolitan area, along with proof of publication (tear sheets or affidavits from the newspaper).
• Additional Recruitment Steps: Documentation of at least three (3) of the ten (10) additional recruitment steps required for professional occupations under 20 CFR § 656.17(e)(1)(ii). These may include postings on the employer's website, job search websites, on-campus recruiting, trade or professional organization postings, employee referral programs, or other qualifying methods.
• Recruitment Report: A detailed recruitment report, signed by an authorized representative of OWS, summarizing the results of all recruitment activities, including the number of applicants, the qualifications of each applicant reviewed, and the lawful job-related reasons for not hiring any U.S. worker applicant.
• Posted Notice of Filing: Evidence that a notice of the PERM filing was posted at the OWS worksite for a period of ten (10) consecutive business days in a location where it was visible to all employees.
• Prevailing Wage Determination: A copy of the prevailing wage determination issued by the NPWC for the position.
• Business Necessity Justification: If any of the job requirements listed on the ETA Form 9089 are determined to be restrictive or unusual for the occupation (e.g., specific skills, experience requirements, or educational credentials that exceed the normal requirements for the occupation), the employer must provide a business necessity justification demonstrating that the requirements are essential to the job in a reasonable manner and do not unduly restrict the applicant pool.
Audit Response Status. Based on our preliminary communications with W&P, the audit response was being prepared by W&P prior to the conclusion of their engagement with OWS. However, the current status of the response preparation — including whether a response has already been submitted, and if not, the precise deadline for submission — has not yet been confirmed. DOL audit response deadlines are typically thirty (30) days from the date of the audit notification letter, and failure to respond within the allotted time, or submission of an inadequate response, may result in denial of the PERM application.
Risk Assessment. If the audit response is insufficient or untimely, the DOL will deny the PERM application. A denial would have the following consequences:
• Loss of Priority Date. Mr. Krishnamurthy's priority date of July 22, 2023 — the second-earliest PERM priority date in the portfolio — would be lost. Any new PERM filing would establish a new (later) priority date, which could add years to the wait time in the EB-2 India queue.
• Refiling Requirement. A new PERM application would need to be filed from the beginning, including a new prevailing wage determination, new recruitment activities, and new employer attestations.
• H-1B Extension Impact. Mr. Krishnamurthy's H-1B expires on November 30, 2025. If the PERM is denied and must be refiled, the basis for a seventh-year H-1B extension may be more limited, as the new PERM filing date might not satisfy the 365-day requirement under AC21 § 106(a) relative to the H-1B max-out date, depending on when Mr. Krishnamurthy first entered H-1B status and the timing of a refiled PERM.
Priority Date Significance. As noted, Mr. Krishnamurthy's priority date of July 22, 2023 is the second-earliest PERM priority date among the EB-2 cases in OWS's portfolio, behind Jae-Won Park's priority date of November 20, 2023. (Note: Mr. Krishnamurthy's date is actually earlier, as July 2023 precedes November 2023; Krishnamurthy thus holds the earliest EB-2 PERM priority date.) Preservation of this priority date is critically important, particularly given the severe EB-2 India backlog.
H-1B Extension Coordination. Mr. Krishnamurthy's H-1B expires on November 30, 2025 — approximately five and a half months from the date of this memorandum. If the PERM audit is resolved favorably and the application is certified, an I-140 should be filed promptly. If the I-140 is filed and/or approved before November 30, 2025, Mr. Krishnamurthy will have a strong basis for a seventh-year H-1B extension. Preparation for the H-1B extension filing should proceed in parallel with the audit response.
Action Items:
1. HIGHEST PRIORITY: Obtain the complete audit file from W&P as the most urgent item in the file transfer. Contact Kavita Parekh immediately to request expedited production of the Krishnamurthy file.
2. Determine the audit response deadline. If the deadline has not yet passed, prepare and submit the audit response with all required documentation.
3. Review all recruitment documentation assembled by W&P for sufficiency, accuracy, and compliance with DOL regulations.
4. Coordinate with OWS Human Resources (Samantha Kowalski, Director of Human Resources) for any supplemental recruitment documentation, employment records, or attestations that may be needed.
5. Coordinate with Dr. Yun-Sheng Chen, VP of Engineering, for any technical attestations or business necessity justifications regarding the position requirements listed on the ETA Form 9089.
6. Begin H-1B extension preparation in parallel, targeting a filing date sufficiently in advance of the November 30, 2025 expiry.
7. If the audit results in denial, assess whether supervised recruitment or refiling is appropriate, and advise Mr. Krishnamurthy and OWS accordingly.
V. Consolidated Case Status Matrix
The following table provides a consolidated summary of all eight green card matters in OWS's portfolio. This matrix is intended to serve as a quick-reference tool for case management purposes and should be read in conjunction with the detailed case summaries in Section IV above.
Notes on the Matrix:
• "TBD" entries for PERM status will be resolved upon receipt and review of the W&P file transfer, targeted for June 15, 2025.
• Chargeability (country of birth) for each beneficiary must be confirmed through direct communication with the beneficiaries and review of passport and birth records. This information is essential for visa bulletin analysis and timeline projections.
• Nakamura's H-1B has technically expired but work authorization continues under the 240-day automatic extension rule pending adjudication of the timely-filed extension petition.
• All priority dates are based on the PERM filing date for the EB-2/EB-3 cases and the I-140 filing date for Nakamura's EB-1B case.
VI. Visa Bulletin Analysis and Priority Date Projections
The monthly Visa Bulletin published by the Department of State is the determinative factor in assessing when each beneficiary may proceed to the final step of the green card process — filing Form I-485 for adjustment of status or processing an immigrant visa at a U.S. consulate. This section provides a preliminary analysis of the visa bulletin landscape for each applicable preference category, with recommendations for each beneficiary.
A. EB-1 Category (Nakamura — EB-1B)
Mr. Nakamura's EB-1B petition, if approved, will be classified under the first employment-based preference category. The visa bulletin dynamics for EB-1 are as follows:
• EB-1 Worldwide: The EB-1 category for nationals of most countries is generally current, meaning that immigrant visas are immediately available to beneficiaries regardless of their priority date. There have been occasional periods of retrogression for the EB-1 worldwide category (most recently in the fall of 2023), but these periods have been relatively brief and the final action dates have typically advanced quickly.
• EB-1 India: The EB-1 India category has experienced some retrogression in recent years, with final action dates periodically falling back to dates in the 2020–2022 range. However, this retrogression is significantly less severe than the EB-2 India or EB-3 India backlogs. Mr. Nakamura's priority date of September 10, 2022 is reasonably well-positioned under the EB-1 India category, and there is a strong likelihood that his priority date would be current or would become current within a relatively short timeframe even if India-chargeable.
• EB-1 Japan: If Mr. Nakamura is chargeable to Japan, the EB-1 category is expected to be current, and no wait time is anticipated.
Recommendation: Monitor the monthly visa bulletin. Upon approval of the EB-1B I-140 petition, if the priority date is current under the applicable final action date (or dates for filing chart, if USCIS authorizes I-485 filing based on the dates for filing chart), proceed to file Form I-485 for adjustment of status. Alternatively, if Mr. Nakamura prefers consular processing, initiate the DS-260 immigrant visa application process through the National Visa Center.
B. EB-2 Category (Mehrotra, Raghavan, Park, Xiaoming, Krishnamurthy)
Five of the seven PERM cases are classified under the EB-2 advanced degree professional category. The visa bulletin dynamics for EB-2 vary significantly by country of chargeability:
• EB-2 Worldwide (excluding India and China): The EB-2 category for nationals of countries other than India and China is generally current or nearly current. If any of the five EB-2 beneficiaries is chargeable to a country other than India or China, the green card process may proceed with minimal delay following I-140 approval.
• EB-2 India: The EB-2 India category has a severe multi-year backlog. As of the most recently published Visa Bulletin (June 2025), the final action date for EB-2 India is approximately in the range of 2011–2013 (subject to monthly fluctuation). This means that beneficiaries with priority dates from 2023 and 2024 face a wait of potentially ten or more years before their priority dates become current for final action. The dates for filing chart, when applicable, has typically been somewhat more advanced (often in the 2014–2016 range for recent bulletins), which may allow earlier I-485 filing and the securing of interim benefits such as employment authorization documents (EADs) and advance parole travel documents, though final adjudication of the I-485 will remain pending until the final action date reaches the beneficiary's priority date.
• EB-2 China: The EB-2 China category also experiences retrogression, though it is less severe than EB-2 India. Final action dates for EB-2 China have generally been in the 2020–2022 range in recent bulletins. Beneficiaries chargeable to China with 2024 priority dates may face a wait of approximately three to five years, though this is subject to significant variability based on demand patterns and any changes in visa allocation policy.
Key Data Points for EB-2 Priority Dates:
• Krishnamurthy: 07/22/2023 (earliest EB-2 PERM priority date, but audit must be resolved)
• Park: 11/20/2023
• Mehrotra: 03/15/2024
• Xiaoming: 04/05/2024
• Raghavan: 06/01/2024
The relative ordering of these priority dates means that, among the EB-2 beneficiaries, Krishnamurthy and Park are best-positioned in the visa queue (assuming their respective PERM applications are certified and I-140 petitions are filed). However, the practical significance of the priority date ordering is limited for India-chargeable beneficiaries, given the multi-year gap between the current final action dates and the beneficiaries' priority dates.
Recommendations:
1. Confirm chargeability for each EB-2 beneficiary as the highest-priority analytical step. The entire visa bulletin analysis turns on this determination.
2. File I-140 petitions for all certified PERM cases as promptly as possible to lock in priority dates. Even for India-chargeable beneficiaries facing long waits, locking in the priority date is essential, as the date is portable to future employers under AC21 and supports H-1B extensions beyond the six-year maximum.
3. Consider National Interest Waiver (EB-2 NIW) as a supplemental strategy for any beneficiary with strong independent credentials, particularly those in photonics research roles. The NIW does not require PERM labor certification and allows the beneficiary to self-petition. If an NIW petition is filed and approved, the beneficiary may retain and port the priority date from the employer-sponsored EB-2 PERM case.
4. Explore cross-chargeability through a spouse's country of birth where applicable. If any beneficiary's spouse was born in a country with a more favorable visa bulletin position (e.g., a non-backlogged country), the beneficiary may be able to "cross-charge" to that country, potentially eliminating or significantly reducing the wait time.
C. EB-3 Category (Kim)
Mr. Kim's PERM application was filed under the EB-3 category. The visa bulletin dynamics for EB-3 are as follows:
• EB-3 Worldwide (excluding India and China): The EB-3 category for nationals of most countries is generally current or nearly current. If Mr. Kim is chargeable to South Korea, his priority date of February 28, 2024 would likely be current and he could proceed to I-485 filing in the near term following I-140 approval.
• EB-3 India: The EB-3 India category has the most extreme backlog of any employment-based preference category. Final action dates for EB-3 India are typically in the range of 2009–2012 in recent bulletins, and movement is extremely slow. A priority date of February 28, 2024 chargeable to India under EB-3 could result in a wait time measured in decades — potentially twenty years or more. This is a significantly worse position than EB-2 India, which already faces a severe backlog.
• EB-3 China: The EB-3 China backlog is moderate, with final action dates generally in the 2019–2021 range.
Recommendation: Given the dramatic disparity in processing times between EB-3 and EB-2 for India-chargeable beneficiaries, we strongly recommend evaluating whether Mr. Kim qualifies for EB-2 reclassification. If Mr. Kim holds an advanced degree (master's or higher) or possesses a bachelor's degree combined with at least five years of progressive post-baccalaureate experience in the specialty, a new PERM application under the EB-2 category may be appropriate. If a new EB-2 PERM is filed and certified, and an I-140 is approved under EB-2, Mr. Kim's visa bulletin position would improve substantially. In the interim, if the existing EB-3 PERM is certified, an I-140 should be filed under EB-3 to lock in the February 28, 2024 priority date, which may be ported to a future EB-2 petition through priority date retention provisions.
If Mr. Kim is not India-chargeable, the urgency of reclassification is reduced, but the analysis should still be conducted to ensure optimal positioning.
VII. Ability-to-Pay Analysis
A. Regulatory Requirement
USCIS regulations at 8 CFR § 204.5(g)(2) require that any petitioner filing an I-140 Immigrant Worker Petition demonstrate the ability to pay the proffered wage to the beneficiary from the priority date through the date of adjudication of the I-140. This requirement applies to all employment-based preference categories, including EB-1B, EB-2, and EB-3. Failure to demonstrate ability to pay is one of the most common bases for I-140 denial and must be addressed affirmatively in each petition.
B. Methods of Demonstrating Ability to Pay
USCIS recognizes three primary methods by which an employer may demonstrate ability to pay the proffered wage:
1. Net Income Method. The petitioner's annual reports, federal tax returns, or audited financial statements show that the petitioner's net income is equal to or greater than the proffered wage for each year from the priority date through the present. If the petitioner employs 100 or more workers, USCIS may consider the totality of the petitioner's financial circumstances rather than applying a rigid net income test.
2. Net Current Assets Method. The petitioner's financial statements show that the petitioner's net current assets (current assets minus current liabilities) are equal to or greater than the proffered wage for each year from the priority date through the present.
3. Employment and Payment Method. The petitioner demonstrates that the beneficiary is currently employed by the petitioner and is being paid at or above the proffered wage. This method is the most straightforward and is typically the strongest evidence of ability to pay.