Since August 5, 2026, US Citizenship and Immigration Services (USCIS) policy has allowed officers to deny an immigration application or petition outright when required initial evidence is missing, without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). An RFE gives a filer a set period to supply what is missing; a NOID warns of a planned refusal and invites a rebuttal. The change covers cases already pending on August 5 as well as new filings.
The guidance is in Policy Alert PA-2026-05, Evidence, Requests for Evidence, and Notices of Intent to Deny, issued and announced the same day. It revised Chapter 6 of Volume 1, Part E of the USCIS Policy Manual and amended Chapters 9 and 10. In the alert’s words, the update restores “USCIS officers’ full discretion to deny such benefit requests without first issuing an RFE or NOID, as allowed by the regulations.” A footnote states that refugee and asylum applications, among others, follow different procedures.
What Changed
USCIS, a component of the Department of Homeland Security, cites 8 CFR 103.2(b)(8)(ii) as the source of the denial authority and says its previous policy discouraged officers from using it.
Three further changes accompany that authority. Twelve weeks is now the maximum RFE response period rather than the default, and officers may set shorter deadlines case by case. USCIS eliminated the extra 14 days it had added for notices mailed outside the United States, leaving the three-day allowance for mailed notices. Any response to an RFE or NOID, even a partial one, is treated as a request for a decision on the record.
NOID responses remain capped at 30 days, with no extensions. Under existing Policy Manual guidance that predates the alert, RFEs on Form I-539, used to extend or change nonimmigrant status, and on Form I-601A, the provisional unlawful presence waiver, carry a 30-day maximum.
The shorter windows are already appearing in practice, according to the September immigration newsletter of Connell Foley LLP. The firm wrote that RFE responses were “routinely due in 87 days” and that RFEs “now give clients only 33 days to respond,” including mail delivery time.
How the Guidance Has Shifted Since 2013
A June 2013 USCIS memorandum told officers to request evidence unless a filer had no possibility of overcoming a finding of ineligibility. A July 13, 2018, memorandum, PM-602-0163, rescinded that standard. On June 9, 2021, policy alert PA-2021-11 returned to the 2013 principles, stating that the “2018 policy change resulted in USCIS denying certain benefit requestors an immigration benefit even though they would have demonstrated their eligibility if given a chance to provide additional evidence.” According to Reddy Neumann Brown PC, the 2018 memorandum was issued during the first Trump administration and the 2021 alert under the Biden administration. PA-2026-05 was issued during the second Trump administration.
PA-2026-05 says the policy it replaces increased processing times, raised costs passed to all filers through fees, and encouraged “frivolous and placeholder filings to secure ancillary benefits.” The USCIS announcement of the change named employment authorization, granted while a case awaits a decision, as one of those benefits.
Affidavits Face Added Scrutiny
The revised Chapter 6 states that “affidavits are generally considered tertiary evidence,” to be accepted only when neither primary nor secondary evidence exists or can be obtained. In an August 6 alert, Womble Bond Dickinson‘s Lynn O’Brien and Andrew M. Kuntz identified two uses employers should re-examine: affidavits documenting a beneficiary’s qualifications in PERM-based Form I-140 petitions, and affidavits of birth in adjustment of status cases where birth records are missing or inaccurate.
Dana DiRaimondo of DiRaimondo & Schroeder LLP wrote on August 10 that the change does not alter substantive eligibility requirements, but that USCIS may deny without requesting more evidence even when every required document was submitted, if the record does not meet the burden of proof. Where a primary document is unavailable, she wrote, the filing should explain why and what was done to obtain it.
“Employers and foreign nationals should no longer assume that USCIS will provide an opportunity to supplement the record before issuing an adverse decision.”
— Dana DiRaimondo, DiRaimondo & Schroeder LLP
What Employers and Workers Are Being Told
Womble Bond Dickinson described the cost exposure: “A denial means lost filing fees, plus the cost of re-filing and re-paying those filing fees.” Refiling remains available, and Womble Bond Dickinson and DiRaimondo & Schroeder both advise employers to build time before a status or work authorization expiration in case a denial arrives. Emily Neumann, managing partner at Reddy Neumann Brown, wrote that filers should treat USCIS’s checklist of required initial evidence for the form being filed, such as the checklist for Form I-129, as a minimum filing standard.
When USCIS adopted a similar policy in 2018, Neumann wrote, the feared result “did not materialize as broadly as many practitioners initially expected” in employment-based cases. Denial rates rose in several employment-based categories afterward, she wrote, but alongside numerous other changes in adjudication policy, and USCIS publishes no data on denials issued without an RFE. She cautioned against assuming a repeat, citing the agency’s increased emphasis on screening, vetting and fraud detection.
DiRaimondo wrote that officers retain discretion to request evidence and that the policy “should not be interpreted to mean that every minor documentary issue will result in immediate denial.” USCIS accepted public feedback on the guidance through September 7, 2026, according to the American Immigration Lawyers Association. As of September 28, the agency’s Policy Manual updates page listed no revision to PA-2026-05.
(Photo: Image by athree23 from Pixabay)