Small businesses still have a path to win an H‑1B cap spot under the new weighted selection rule, even if they can’t pay Level IV wages. The change, effective February 27, 2026 for the FY‑2027 cap cycle onward, makes higher‑paid registrations more likely to be selected, so planning the wage and role details matters more than ever.
The new system keeps the same basic H‑1B journey—registration, selection, petition, and approval—but it changes the odds at the first gate. Each registration gets entries based on the Department of Labor wage level tied to the job: Level I = 1 entry, Level II = 2 entries, Level III = 3 entries, and Level IV = 4 entries. Lower levels remain eligible, yet they sit in a thinner part of the pool.
The H‑1B journey under wage weighting: a clear timeline
Most employers will still follow this sequence, with timeframes that reflect what has to happen before the registration window, right after selection, and through adjudication.
- Pre‑registration planning (2–6 weeks before registration opens): lock the job description, SOC code, worksite location, and a defensible wage level.
- Electronic registration window (days to weeks): submit the registration in the USCIS system and pay the required registration fee.
- Selection notice period (typically weeks after the window closes): USCIS runs the weighted selection and posts results.
- Petition filing window after selection (often 90 days): file the full petition with evidence and fees.
- USCIS review (months): adjudication, Requests for Evidence (RFEs) if needed, and a final decision.
For official program basics and registration updates, USCIS posts guidance on the H‑1B cap process at USCIS H‑1B Electronic Registration.
Key takeaway: Wage level selection now affects your odds at the registration stage. Thoughtful, documented wage and role decisions are essential.
Stage 1: Set the wage level correctly before you register
The fastest way for a small employer to lose ground in the new system is a sloppy wage‑level call. The DOL’s Level I–IV framework still controls the prevailing‑wage level tied to the registration, and the employer must also follow the actual wage rule, meaning similarly situated workers cannot be paid less.
Practical steps that fit a small‑company budget:
- Build the job around real duties, not a wish list. Overstated duties can push the role into a higher level you can’t truly support.
- Match the right SOC code and county. The code and worksite location drive the prevailing‑wage table that sets Level I through Level IV.
- Document why the role is Level I, II, or III. Keep notes on supervision, complexity, and experience requirements.
Over‑classifying to chase more weight can backfire. Inflating a wage level without payroll reality invites RFEs, audits, or DOL enforcement. Under‑classifying wastes selection probability and can create wage‑compliance risk later.
Stage 2: Decide how far you can push pay without reaching Level IV
The core math of weighted selection creates a new middle game for employers who can’t stretch to Level IV. Moving from Level I → Level II doubles entries; Level I → Level III triples them. Those jumps often cost less than a full Level IV salary, yet they meaningfully change the odds.
Ways small employers can raise the offered wage in a compliant way:
- Increase base pay, not just a discretionary bonus. Guaranteed pay counts; uncertain bonuses may not help when payroll records are reviewed.
- Use a guaranteed sign‑on or guaranteed performance bonus. If it is fixed and promised in writing, it can support a higher offered wage figure.
- Check internal pay equity early. If current staff in similar roles earn less, adjust carefully or risk actual‑wage problems.
This is where small employers get squeezed: they want stronger odds, but need stable cash flow. According to analysis by VisaVerge.com, the wage‑weighted model shifts strategy from “submit and hope” to “price and prove,” especially for newer firms.
Stage 3: Register once per real job, not multiple times per person
USCIS bars duplicate or speculative filings for the same beneficiary and position. The lawful way to increase a company’s overall chance is to register multiple bona fide openings, each with its own wage level and facts.
A compliant approach:
- Separate positions with different SOC codes, locations, or job duties may each have a registration.
- Each registration’s weight depends on that job’s wage level, not the worker’s resume alone.
- Keep a hiring file that shows the opening is real, funded, and ready to start if selected.
If a business only has one genuine role for the beneficiary, the answer is not “more registrations.” The right moves are tighter wage classification, a higher offer if possible, and a cleaner petition package after selection.
Stage 4: If selected, file the full petition with evidence that survives scrutiny
Selection is only a ticket to file. Smaller employers often feel the real pressure here because they must show the role is a specialty occupation and that the company can employ and pay the worker.
The main filing is Form I‑129, Petition for a Nonimmigrant Worker, available at Form I‑129, Petition for a Nonimmigrant Worker. You will also file a certified Labor Condition Application (LCA), and you should expect questions about duties, supervision, and the worksite.
Post‑selection checklist:
- Finalize the LCA wage and worksite details.
- Assemble specialty‑occupation evidence — degree requirements, industry norms, and detailed duties.
- Prove ability to pay — payroll, tax, or financial records that match the offered wage.
- Prepare for third‑party worksite questions if the worker will be placed at a client site.
A clean file reduces RFEs and business disruption, which matters when a small team is already stretched.
Stage 5: Build a parallel plan when Level IV is out of reach
Some employers will never reach Level IV, and the wage‑weighted system makes that a hard truth. A parallel plan keeps hiring goals on track when the H‑1B path is slow or uncertain.
Cap‑avoiding options:
- Cap‑exempt employment: institutions of higher education, nonprofit research organizations, or government research.
- Hire someone with existing cap‑exempt H‑1B status.
- Alternative visas: O‑1 (extraordinary ability), TN (for eligible Canadians and Mexicans), E‑3 (Australians), or L‑1 (intracompany transfers).
Each alternative has its own legal tests and paperwork, but they avoid the cap lottery.
Other operational approaches:
- Some small consulting and staffing firms negotiate higher client bill rates and pass that into guaranteed salary to lift the wage level.
- This model needs careful contracts and demonstrable employer control; sham arrangements attract enforcement attention.
What USCIS and DOL check once you file
After you submit I‑129, USCIS and the Department of Labor look for consistency between the registration, the LCA, and payroll reality. Expect scrutiny on three themes:
- Specialty occupation fit: duties matching the degree field, and a clear org chart showing supervision.
- Wage compliance: the offered wage must meet the prevailing wage for the level claimed and must not undercut the employer’s actual wage for comparable staff.
- Worksite control: if there is a client site, contracts and statements of work should show the employer directs day‑to‑day tasks.
Budget time for possible RFEs and, for some employers, a site visit. Keep job postings, interview notes, and the internal approvals that funded the role. Those records help show the job is real.
Warning: For United States 🇺🇸 startups, the biggest mistake is treating the selection notice as “approval.” Plan for several months of review and keep the candidate’s work authorization in mind. If the business changes the role or location after registration, update filings carefully — mismatches are a common reason for denial later.
Quick reference: Registration weight by DOL level
| DOL Wage Level | Selection Entries |
|---|---|
| Level I | 1 |
| Level II | 2 |
| Level III | 3 |
| Level IV | 4 |
Use this table when modeling costs and selection odds for each position you plan to register.
If you want, I can help draft a concise pre‑registration checklist tailored to your company (job description template, SOC code lookup tips, and a sample pay justification memo).
The upcoming H-1B weighted selection rule fundamentally changes how registrations are selected, favoring higher wage levels. While Level IV offers the best odds, small employers can remain competitive by targeting Level II or III wages. Strategic planning involves locking in job descriptions and SOC codes early, documenting pay justifications, and ensuring full compliance with actual-wage rules to avoid enforcement risks during the multi-stage petition process.
