USCIS Can Now Deny H-1B and Green Card Filings Without an RFE

What Happened

On August 5, 2026, U.S. Citizenship and Immigration Services (USCIS) issued a <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20260805-EvidentiaryStandards.pdf" target="_blank" rel="noopener noreferrer">Policy Alert</a> updating Volume 1, Part E, Chapter 6 of the USCIS Policy Manual — the section governing evidentiary standards, Requests for Evidence (RFEs), and Notices of Intent to Deny (NOIDs). The agency simultaneously published a <a href="https://www.uscis.gov/newsroom/alerts/uscis-to-reduce-frivolous-immigration-benefits-requests-by-reinforcing-evidence-standards" target="_blank" rel="noopener noreferrer">newsroom announcement</a> confirming the change.

Under the updated policy, USCIS officers now have "full discretion" to deny an immigration benefit request without first issuing an RFE or NOID when the applicant or petitioner fails to submit all required initial evidence at the time of filing, or when the submitted evidence does not establish eligibility for the benefit sought. Officers may also deny a request outright when it lacks any legal basis for approval and no amount of additional evidence could cure the deficiency.

The policy is effective immediately and applies to all immigration benefit requests pending or filed on or after August 5, 2026, unless a specific regulation or other USCIS policy provides otherwise.

What Changed From the Previous Policy

The August 5 update reverses guidance issued during the Biden administration that encouraged officers to issue an RFE or NOID before denying a benefit request — even when the filing was incomplete, the applicant had not demonstrated eligibility, or required initial evidence was clearly missing at the time of filing.

According to USCIS, the prior approach allowed "frivolous or substantially incomplete filings to slow USCIS processing for others waiting in line." The agency stated that the Biden-era policy also enabled some applicants to file "placeholder" applications to obtain ancillary benefits — such as employment authorization — while a deficient application was pending.

The new policy restores a framework similar to one used during the first Trump administration. <a href="https://www.fragomen.com/insights/united-states-uscis-expands-adjudicators-authority-to-deny-filings-without-a-request-for-evidence.html" target="_blank" rel="noopener noreferrer">Fragomen notes</a> this is "in line with a similar initiative undertaken during the first Trump Administration."

Three Key Changes Beyond the RFE Discretion Shift

The Policy Alert includes additional procedural changes that may catch petitioners off guard:

• <strong>Shorter RFE response deadlines.</strong> Previously, officers generally provided the full 12-week (84-day) maximum response period for RFEs. Under the new policy, officers have discretion to set shorter response deadlines on a case-by-case basis. The 12-week period is now a ceiling, not a default. For Form I-539 (change/extension of status) and Form I-601A (provisional unlawful presence waivers), the maximum response period is only 30 days.
• <strong>Reduced international mailing time.</strong> USCIS previously added 14 extra days to response deadlines for notices mailed outside the United States. The agency has eliminated this practice, reverting to the regulatory standard of 3 additional calendar days for all notices served by mail — regardless of location.
• <strong>Partial responses treated as final.</strong> When USCIS receives any evidence in response to an RFE or NOID — even if it only partially addresses the request — the agency considers the response a request for a final decision on the record as submitted.

Who Is Affected

The policy applies to all immigration benefit requests adjudicated by USCIS. For employment-based visa applicants, the most directly affected filings include:

• H-1B specialty occupation petitions (Form I-129) — including cap-subject, cap-exempt, transfers, and extensions
• O-1A and O-1B extraordinary ability petitions (Form I-129)
• EB-1A, EB-1B, and EB-1C immigrant petitions (Form I-140)
• EB-2 petitions, including National Interest Waiver (NIW) self-petitions (Form I-140)
• EB-3 skilled worker and professional petitions (Form I-140)
• I-485 adjustment of status applications for all EB categories
• Employment Authorization Document (EAD) applications (Form I-765)
• I-539 change or extension of nonimmigrant status applications

Why the Timing Makes This Especially Consequential

This policy change arrives in an adjudication environment where denial rates for employment-based categories are already at historic highs.

Data released on August 5, 2026, by the <a href="https://www.americanimmigrationcouncil.org/blog/uscis-immigration-processing-trends-2026/" target="_blank" rel="noopener noreferrer">American Immigration Council</a> shows that between FY2025 Q1 and FY2026 Q1, the denial rate for EB-1A extraordinary ability petitions surged from 25.3% to 52.5%. National Interest Waiver (EB-2 NIW) denial rates climbed from 37.3% to 57.4%. Overall, the denial rate across all EB-1 petitions more than doubled, rising from 13.9% to 30.1%.

Simultaneously, the USCIS backlog has grown to 11.3 million pending cases — a 16.5% increase from the prior year — while the agency's completion rate has fallen. Average backlog clearance time nearly doubled from 9.4 months to 18.6 months.

The combination of rising denial rates, growing backlogs, and the new discretion to deny without an RFE means that a petition denied for insufficient initial evidence could face months or years of delay if the petitioner must refile.

What Attorneys Should Know

The regulatory basis for the policy change lies in existing DHS regulations at 8 CFR § 103.2(b)(1), which requires applicants to establish eligibility at the time of filing, and 8 CFR § 103.2(b)(8), which grants USCIS discretion — not obligation — to issue RFEs and NOIDs.

<a href="https://www.murthy.com/2026/08/05/newsflash-uscis-revises-initial-evidence-requirements-and-rfe-noid-guidance/" target="_blank" rel="noopener noreferrer">Murthy Law Firm observes</a> that "applicants and petitioners should no longer assume they will have an opportunity to supplement the record" and that "careful preparation and submission of complete, well-documented filings are more important than ever."

<a href="https://www.fragomen.com/insights/united-states-uscis-expands-adjudicators-authority-to-deny-filings-without-a-request-for-evidence.html" target="_blank" rel="noopener noreferrer">Fragomen highlights</a> a key ambiguity: "in practice, it is not always clear what documentation will be considered required initial evidence for each case type." Even when all required initial evidence is submitted, "the new policy would still allow an adjudicator to deny an application or petition without an RFE or NOID if the adjudicator concludes that the submission fails to demonstrate eligibility for the requested benefit."

USCIS is accepting comments on the new policy through the <a href="https://www.uscis.gov/outreach/feedback-opportunities/policy-manual-feedback/policy-manual-feedback" target="_blank" rel="noopener noreferrer">Policy Manual feedback portal</a> until September 7, 2026. Practitioners who believe the policy creates due process concerns should consider submitting comments during this window.

What Applicants Should Do

The era of filing a petition and relying on an RFE to fill gaps is over. Every filing now needs to be as complete and well-documented as possible on day one.

• <strong>Assemble all required initial evidence before filing.</strong> Review the form instructions for your specific petition type (I-129, I-140, I-485, I-765) and confirm every listed document is included. Do not file with placeholder or partial evidence.
• <strong>For H-1B petitions:</strong> Include the complete Labor Condition Application (LCA), detailed specialty occupation analysis, the beneficiary's full credential evaluation, and all supporting letters. If the role requires a specific license, include evidence of licensure or a credible plan for obtaining it.
• <strong>For O-1 and EB-1A petitions:</strong> Document every claimed criterion with primary evidence. Advisory opinion letters, published material, and evidence of judging should be organized and indexed. Do not rely on supplementing with additional evidence after filing.
• <strong>For EB-2 NIW petitions:</strong> Present a complete three-prong Dhanasar analysis with supporting evidence for each prong. Given the 57.4% denial rate, thorough documentation of national importance and the applicant's track record is essential.
• <strong>For EB-3 and PERM-based petitions:</strong> Ensure the approved PERM labor certification, job requirements, and the beneficiary's qualifications are fully documented and aligned.
• <strong>Budget for premium processing when available.</strong> If a shorter RFE response deadline is issued, having a case already in premium processing may reduce the risk of missing tight windows.

Comment Period Open Until September 7

USCIS is accepting public comments on this Policy Manual update through September 7, 2026, via its online feedback portal. While this is not a formal notice-and-comment rulemaking — the change is a policy guidance update, not a regulation — the comment window gives attorneys and stakeholders an opportunity to raise concerns about implementation, ambiguity in "required initial evidence" standards, or due process implications.

The American Immigration Lawyers Association (AILA) and major immigration law firms are expected to submit formal comments. Individual practitioners who encounter specific case types where the "required initial evidence" standard is unclear should document those examples for potential inclusion in comment submissions.