On August 5, 2026, U.S. Citizenship and Immigration Services (“USCIS”) announced a Policy Alert PA-2026-05, Evidence, Requests for Evidence, and Notices of Intent to Deny, which makes significant changes to the way USCIS evaluates evidence and handles potentially deficient immigration filings.
Most significantly, USCIS has restored adjudicators’ discretion to deny an immigration petition or application without first issuing a Request for Evidence (“RFE”) or Notice of Intent to Deny (“NOID”) where required initial evidence is missing or the filing otherwise fails to establish eligibility. The policy took effect immediately and applies broadly to benefit requests that were pending on August 5, 2026, as well as requests filed on or after that date.
The change does not alter the substantive eligibility requirements for immigration benefits. It does, however, meaningfully change the consequences of a filing USCIS deems incomplete or insufficient. Employers and foreign nationals should no longer assume that USCIS will provide an opportunity to supplement the record before issuing an adverse decision.
What Has Changed?
1. USCIS May Deny a Case Without First Issuing an RFE or NOID
Under the prior USCIS policy, adjudicators were generally instructed to issue an RFE or NOID where additional evidence could potentially overcome a deficiency in the record. This frequently provided petitioners and applicants an opportunity to address missing documentation, clarify an issue, or supplement evidence before USCIS made a final decision. The new guidance restores an approach similar to that adopted during the first Trump Administration, before USCIS revised its policy in 2021.
That procedural safeguard is no longer assured.
USCIS has now restored officers’ discretion under existing regulations to deny a benefit request without first issuing an RFE or NOID when, among other circumstances:
required initial evidence was not submitted;
the evidence submitted does not establish eligibility for the requested benefit; or
there is no legal basis for approval.
At the same time, the new guidance does not mean that USCIS will stop issuing RFEs or NOIDs. Officers retain discretion to request additional evidence, and USCIS has not yet provided enough implementation data to determine how frequently adjudicators will exercise their restored denial authority. USCIS may still issue an RFE or NOID where appropriate, but applicants and petitioners should not plan a filing around the expectation that USCIS will provide an opportunity to cure an evidentiary deficiency later.
This distinction is important. The new policy is not limited to obviously incomplete filings. Even where the required documents have technically been submitted, USCIS may deny without first requesting additional evidence if the adjudicator concludes that the existing record does not satisfy the applicable burden of proof.
2. RFE Response Periods May Be Significantly Shorter
The policy also changes the amount of time applicants and petitioners may receive to respond when USCIS does issue an RFE.
USCIS previously generally provided the maximum regulatory response period of 12 weeks. Officers may now establish a shorter response period depending on the nature of the evidence requested. Twelve weeks remains the maximum, rather than the standard, RFE response period. NOID response periods remain subject to a maximum of 30 days, and additional time to respond generally cannot be granted.
Certain case types are subject to shorter maximum periods under existing policy, including RFEs relating to Forms I-539 and I-601A, for which the maximum response period is 30 days.
As a practical matter, employers and foreign nationals should be prepared to begin gathering information necessary to respond to an RFE or NOID immediately upon receipt, particularly where the response may require documentation from universities, prior employers, foreign entities, government agencies, experts, or other third parties.
3. The Additional 14-Day International Mailing Period Has Been Eliminated
USCIS has also eliminated the additional 14 days previously provided for certain RFEs and NOIDs mailed outside the United States or issued by international USCIS offices. Instead, USCIS will apply the generally applicable three-day mailing allowance where a notice is served by mail.
4. A Partial RFE or NOID Response May Trigger Adjudication
The updated policy also clarifies an important procedural point: once USCIS receives any requested evidence in response to an RFE or NOID – even if the submission responds to only part of the request – USCIS may treat the submission as a request for a decision based on the record as it then exists.
Accordingly, submitting part of an RFE response while intending to supplement it later can carry significant risk. Petitioners and applicants should generally coordinate the response as a complete submission rather than sending evidence piecemeal unless there is a specific strategic reason to do otherwise.
USCIS Is Also Tightening How It Evaluates Evidence
PA-2026-05 is broader than an RFE policy change. USCIS also revised the Policy Manual's evidentiary framework, including distinctions among initial and additional evidence, primary and secondary evidence, and affidavits submitted when primary or secondary evidence is unavailable.
This is particularly relevant in cases where conventional documentation is unavailable (for example, older employment records, foreign academic records, civil documents, government records, or evidence from an entity that no longer exists).
USCIS now expressly describes affidavits as generally constituting tertiary evidence and directs officers to assess their credibility, reliability, authenticity, level of detail, internal consistency, plausibility, and consistency with other information available to DHS.
The practical takeaway is that substitute evidence should not be submitted without explanation. Where primary evidence is unavailable, the filing should address why it is unavailable, what efforts were made to obtain it, and why the alternative evidence reliably establishes the relevant fact.
What Does This Mean for Employers?
For employers, the principal change is one of front-end risk management.
An RFE should no longer be viewed as a predictable opportunity to complete or strengthen a filing after submission. Employers and counsel will need to make a more deliberate assessment of whether the evidentiary record is sufficiently developed before a petition or application is filed.
In practice, employers should continue working with counsel to continue the following practices:
Begin immigration matters earlier where possible. Earlier initiation provides additional time to obtain corporate records, educational documents, prior immigration records, experience letters, foreign documents, expert evidence, and other materials that may be difficult to obtain quickly.
Build additional cushion before status or work authorization expiration dates. Where possible, filing earlier may preserve time to evaluate options, including refiling, if USCIS issues an unexpected denial.
Identify difficult-to-obtain evidence at the outset. Documents from former employers, universities, foreign government agencies, licensing authorities, or dissolved entities should be requested early so that appropriate secondary evidence can be developed if the primary documentation proves unavailable.
These considerations become especially important in cases approaching a status expiration, work authorization deadline, priority-date issue, or other circumstance in which a denial followed by refiling may have immigration or employment consequences.
What About Cases That Are Already Pending?
Importantly, the new policy is not limited to cases filed after August 5. USCIS states that it applies to benefit requests already pending as of August 5, 2026 (in other words, cases filed before petitioners and beneficiaries were aware of these changes). Employers therefore should be prepared for the fact that a petition filed under the prior policy will be adjudicated under the new policy.
D&S Perspective
The August 5 policy does not change the underlying legal burden of proof: applicants and petitioners have always been required to establish eligibility for the requested immigration benefit. What has changed is how much opportunity USCIS may provide to correct or supplement the record before making a final decision.
Employers should expect immigration case preparation to become somewhat more front-loaded, particularly for cases involving unusual facts, unavailable primary documentation, or tight immigration timelines. In some circumstances, waiting briefly for an important document may now present less risk than filing an incomplete record with the expectation that the evidence can be provided later through an RFE.
At the same time, the policy should not be interpreted to mean that every minor documentary issue will result in immediate denial. USCIS retains discretion to issue RFEs and NOIDs, and actual adjudication practices will become clearer as the agency implements the policy across service centers and case types.
It is important to note, however, that this policy is being implemented against the backdrop of an already increasingly unpredictable USCIS adjudication environment. Recent trends have included erroneous rejections, inconsistent or questionable RFEs, adjudication delays, and premium processing timeframes that are not always being met. When coupled with USCIS’s restored authority to deny cases without first issuing an RFE or NOID, these broader trends may further increase uncertainty for employers and foreign nationals and reinforce the importance of careful front-end case preparation, realistic timing expectations, and prompt escalation of unexpected adjudication issues.
D&S will continue monitoring USCIS implementation of PA-2026-05, including whether discernible trends emerge concerning direct denials, shortened RFE response periods, and the treatment of secondary and affidavit evidence. We will continue to advise clients regarding filing timing and evidentiary strategy on a case-by-case basis.
Please contact your D&S attorney with questions regarding how the new policy may affect a pending or upcoming immigration filing.
This alert is for general informational purposes only and does not constitute legal advice. Please consult D&S immigration counsel regarding your specific circumstances. D&S Senior Associate, Paulina Baginska, assisted with the preparation of this alert.