By Cyrus D. Mehta and Kaitlyn Field*
On February 27, 2026, USCIS printed a new version of Kind I-129, which it’ll settle for completely starting April 1, 2026. The brand new version of Kind I-129 introduces a number of new fields within the H-1B and H-1B1 Information Assortment and Submitting Payment Exemption Complement. Query 7 by 11 on web page 21 of the complement request the next particular data:
- Stage of schooling required for the place
- Area(s) of examine that will qualify somebody for the place
- Years of expertise required as a way to qualify for the place
- Particular abilities required as a way to qualify for the place
- Variety of individuals the beneficiary will supervise, and their place titles
Moreover, query 2 on part 3, web page 22 of the H-1B and H-1B1 Information Assortment and Submitting Payment Exemption Complement requests that the suitable wage stage, I by IV, be chosen for H-1B cap petitions.
Many of those new fields seem designed to adjust to the December 2025 Division of Homeland Safety closing rule that launched a weighted choice course of for the H-1B lottery. The H-1B registration interval for FY 2027 runs from March 4, 2026 to March 19, 2026, at 12 pm ET.
Beneath the brand new system, mentioned intimately in a prior weblog, as an alternative of a random lottery, registrations for distinctive beneficiaries or petitions will probably be assigned to the related Occupational Employment and Wage Statistics wage stage and entered into the choice pool as follows: (1) registrations for distinctive beneficiaries or petitions assigned wage stage IV will probably be entered into the choice pool 4 instances; (2) these assigned wage stage III will probably be entered into the choice pool thrice; (3) these assigned wage stage II can be entered into the choice pool two instances; and (4) these assigned wage stage I will probably be entered into the choice pool one time. Pursuant to the brand new rule, the H-1B cap digital registration type requires employers to point what wage stage will probably be provided to the beneficiary. Though USCIS has not promulgated steering specifying whether or not the Labor Circumstances Utility (LCA) and H-1B petition filed on behalf of a specific beneficiary should match the wage stage indicated on the time of registration, it’s possible a greatest follow to make sure that each are in sync.
The weighted choice rule will incentivize employers to pick the very best doable wage stage as a way to improve the candidate’s chance of being chosen within the lottery. Nonetheless, issues may come up when the H-1B petition is filed. If the beneficiary’s job duties seem subtle or excessive stage, however the employer is barely providing a stage I wage, which usually pertains to an entry-level position, USCIS can problem the appropriateness of the wage stage. Equally, USCIS may query the appropriateness of a stage IV wage if the employer is providing a better wage to an worker as a way to improve the probabilities of choice within the H-1B lottery. Nonetheless, the DHS closing rule makes clear that “…if an employer values a beneficiary’s work and the distinctive qualities the beneficiary possesses, the employer may supply a better wage than required by the prevailing wage stage to replicate that worth.” Thus, an employer shouldn’t be precluded from paying a stage IV wage even to an entry-level employee if that worker’s distinctive abilities, efficiency, or instructional background justify providing a better wage.
Nonetheless, even when the employer as chosen a stage IV wage within the H-1B lottery, on the time of getting ready the Labor Situation Utility (“LCA”), the employer might want to assign the suitable wage stage based mostly on the DOL 2009 prevailing wage steering. Beneath the DOL prevailing wage steering, an entry stage worker on first brush could qualify below stage I wage or stage II wage moderately than Stage IV wage. The employer, however, could possibly justify a stage IV wage even when an worker has no prior or little expertise based mostly on a complicated diploma and possessing different specialised abilities, {qualifications} and certifications/licenses which are important for performing the duties of the place. The extent IV wage can additional be justified based mostly on the precise wage that’s paid to equally located staff. Beneath DOL rule, the employer should pay the upper of the prevailing or precise wage. So even when the prevailing wage can be a stage 1 wage however the precise wage is at stage 4 wage, the employer should pay the upper stage 4 wage.
Extra complexities can come up as soon as the employer begins the PERM labor certification course of on behalf of an worker at the moment in H-1B standing. An employer could be providing an worker a stage I or II wage for the current H-1B place, however may have larger necessities for the PERM and I-140 place. For a PERM place that requires a bachelor’s diploma and 5 years of expertise, nonetheless, the DOL is more likely to assign a stage IV wage within the Prevailing Wage Dedication. Though there may look like an inconsistency between the H-1B and PERM wage ranges, the position described within the PERM is a future position. For beneficiaries from backlogged nations like India and China, this place could solely materialize after 10 years or extra after they develop into eligible for adjustment of standing. Thus, as a result of the employer is required to mission the necessities and wage for a task to be carried out a few years sooner or later, it’s not inherently problematic for an employer’s necessities, and, due to this fact, the corresponding wage stage, to be considerably larger for a PERM place than for the current H-1B position.
*Kaitlyn Field is a Associate at Cyrus D. Mehta & Companions PLLC.
