On February 27, 2026, USCIS published a new edition of Form I-129, which it will accept exclusively beginning April 1, 2026. The new edition of Form I-129 introduces new fields in the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement. Questions 7 through 11 on page 21 of the supplement request the following specific information: 

• Level of education required for the position
• Field(s) of study that would qualify someone for the position
• Years of experience required in order to qualify for the position
• Special skills required in order to qualify for the position
• Number of people the beneficiary will supervise, and their position titles

Additionally, the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement requests that the appropriate wage level, I through IV, be selected for H-1B cap petitions. 

These new questions in the form are designed to comply with the December 2025 Department of Homeland Security final rule that introduced a weighted selection process for the H-1B lottery.  The  "https://www.uscis.gov/newsroom/alerts/fy-2027-h-1b-cap-initial-registration-period-opens-on-march-4"H-1B registration period for FY 2027 ran from March 4, 2026 to March 19, 2026, at 12 pm ET. 

H-1B lottery submissions this year required that additional information be included in the pre-registrations

1. registrations for unique beneficiaries or petitions assigned “wage level IV” will be entered into the selection pool four times; (2) those assigned “wage level III” will be entered into the selection pool three times; (3) those assigned “wage level II” would be entered into the selection pool two times; and (4) those assigned “wage level I” will be entered into the selection pool one time. Pursuant to the new rule, the H-1B cap electronic registration form requires employers to indicate what wage level will be offered to the beneficiary.
2. USCIS has not issued guidance specifying whether the Labor Conditions Application (LCA) and H-1B petition filed on behalf of a selected beneficiary must match the wage level indicated at the time of registration. However, it is best to consider these factors when planning and making a selection in the lottery and filing the H-1B visa petition on behalf of a foreign national.

No doubt that the weighted selection rules encourage employers to select the highest possible wage level in order to increase the candidate’s likelihood of being selected in the lottery. Be aware, however, that challenges could arise when the H-1B petition is filed with USCIS after selection.

Establishing The Wage Levels and Impact on the H-1B petition

In the case where a beneficiary’s job duties appear sophisticated or high level, but the employer is only offering a level I entry level wage, USCIS will likely challenge the appropriateness of the wage level. Similarly, USCIS could question the appropriateness of a level IV wage if the employer is offering a higher wage to an employee in order to increase the chances of selection in the H-1B lottery. However, the DHS final rule makes clear that “…if an employer values a beneficiary’s work and the unique qualities the beneficiary possesses, the employer could offer a higher wage than required by the prevailing wage level to reflect that value.” Thus, an employer should not be precluded from paying a level IV wage even to an entry-level worker if that employee’s unique skills, performance, or educational background justify offering a higher wage.  Undoubtedly, we expect that USCIS will challenge the Level 4 wages, and will likely ask, given the changes in the new H1B submission and forms, for information regarding wages, salary, educational background and experience of others, and especially U.S workers, similarly employed.

While an employer may be able to justify a level IV wage even if an employee has no prior or little experience based on an advanced degree and possessing other specialized skills and there might be additional qualifications and certifications/licenses that are essential for performing the duties of the position, no doubt the goal of the wage-weighted system is to protect the U.S. labor market and U.S. workers. The level IV wage can further be justified based on the actual wage that is paid to similarly situated workers.  Where a prevailing wage would be a level 1 wage, but the actual wage is at level 4 wage, the employer must pay the higher level 4 wage. 

Additional considerations to the wage level assigned for H-1B visa petitions also apply in the labor certification/ Program Electronic Review Management (PERM) context.  While the PERM labor certification and residence applications are prospective in nature; that is, the U.S. employer must pay the proffered wage upon the granting of residence, factors such as these must be weighed carefully in advance by U.S. employers embarking on the residence process. Such considerations would include the length of time a permanent residence case would remain pending. For instance, for Indian and Chinese nationals subject to years of quota backlogs, the offered wage might not have to be paid for 5-15 years. For other foreign nationals not subject to per-country quota backlogs, the offered wage would have to be offered at the time residence is granted, and this could be within a 3–5-year framework.

Tarter Krinsky & Drogin Takeaway

The wage-based selection requirements will create additional considerations for employers participating in the H-1B and PERM labor certification visa programs. We recommend securing  counsel when preparing and filing for expat populations to assure success in any benefits requests from USCIS. 

We also strongly recommend that employers work closely with counsel to digest the proposed U.S. job description, proposed salary and to assess viability to classify the wage level with H-1B selections to assure that H-1B petition submissions with USCIS are granted without challenge. Careful planning in advance will assure the issuance of USCIS requests for evidence.

Further, calibrating and considering others who would be similarly employed in a U.S. company would be another factor to assign the appropriate wage level. Coordination with counsel who are experienced and familiar with the Department of Labor wage level assessments is crucial in the process to guarantee H-1B petition approval.

Contact a member of our team with questions or to discuss.