MW Law LLC | Immigration Law for Businesses, Professionals, and Families — Chicago, Illinois
Current as of September 13, 2026.
On August 5, 2026, USCIS issued Policy Alert PA-2026-05, Evidence, Requests for Evidence, and Notices of Intent to Deny, revising Volume 1, Part E of the USCIS Policy Manual. The guidance restores officer discretion to deny a benefit request without first issuing a Request for Evidence or a Notice of Intent to Deny. It also confirms that the response periods written into the regulations are ceilings rather than defaults. The practical question for anyone preparing a filing is whether to build the full evidentiary record before submission or file a baseline package and supplement it if USCIS asks.
Can USCIS deny a petition without first issuing an RFE?
Yes. PA-2026-05 restores officer discretion to deny a benefit request without first issuing an RFE or a NOID, including where a requestor failed to submit initial evidence or where the record failed to establish eligibility. The guidance rescinds the 2021 policy that generally encouraged an RFE before denial.
USCIS stated that the prior policy created opportunities for frivolous or substantially incomplete filings. RFEs and NOIDs continue to exist, and officers may still issue them. What changed is that an officer is no longer directed to issue one before denying a deficient filing. Preparing a response to a notice that does arrive is the work of an RFE or NOID response.
How long is the response deadline for an RFE or a NOID?
The regulation sets ceilings rather than standard periods. An RFE response period cannot exceed twelve weeks and a NOID response period cannot exceed thirty days. Officers may set shorter deadlines, and the regulation provides that additional time to respond may not be granted.
The familiar twelve-week RFE has been a practice rather than a requirement. USCIS noted that officers are not required to issue an RFE with a standard twelve-week response period. Those ceilings sit at 8 CFR 103.2(b)(8). Where a notice is served by mail, a three-day allowance applies under 8 CFR 103.8(b), and the additional fourteen days USCIS had been providing for notices mailed outside the United States is eliminated.
Which filings does the August 2026 guidance apply to?
The guidance took effect immediately and reaches benefit requests pending on August 5, 2026 as well as those filed on or after that date, unless a regulation or another USCIS policy provides a different rule. A case already sitting in a queue on August 5 is covered.
Certain benefits sit outside it. The alert notes that some categories, including refugee and asylum applications, are governed by different regulations and procedures for RFEs, NOIDs, denials, and failure to appear.
What counts as initial evidence?
Initial evidence is the evidence specified in the regulations and on the form and its instructions for the benefit sought. The burden rests on the requestor to establish eligibility at the time of filing and to remain eligible through adjudication.
For an adjustment of status filing, that means the form edition in force on the filing date, the required supplements, and the supporting documents the instructions call for.
Two ways to build a filing, compared
The first approach assembles the complete evidentiary record before submission. Preparation cost is front-loaded and the timeline to a first decision is the adjudication itself. Once filed, the record is fixed, so a gap the officer identifies cannot be repaired unless an RFE happens to arrive.
The second approach files a baseline package and supplements on request. Preparation cost is lower at the outset and rises if a notice arrives. Timeline extends by the response period plus re-adjudication. Under the prior policy the arrival of an RFE was a reasonable expectation, and that expectation no longer holds.
The trade is between certain cost now and uncertain cost later. What the August guidance changed is not the price of either approach but the probability attached to the second one.
MW Law LLC: Building the Record Before Filing
Our practice includes:
- Employment-Based Green Cards — EB-1, EB-2, and EB-3 petitions for professionals and the employers who sponsor them
- Marriage Green Card — Spousal petitions, adjustment of status, and removal of conditions
Have a question about your situation? Book a consultation with attorney Michelle Weltz.
Frequently Asked Questions
Does the guidance eliminate RFEs and NOIDs?
No. Both remain available, and officers may still issue them where an officer decides that doing so is appropriate. The guidance removes the direction that an officer should generally issue one before denying a filing that fails to establish eligibility or omits required initial evidence.
What happens if a response to an RFE is only partial?
USCIS has clarified that a partial response is ordinarily treated as a request to decide the case on the record as submitted. The agency also states that it generally will not grant requests for additional time once the response deadline has passed.
Does the extra time for notices mailed abroad still apply?
No. USCIS eliminated the practice of adding fourteen days for notices mailed outside the United States or issued by an international USCIS office. The three-day allowance for service by mail under 8 CFR 103.8(b) continues to apply where a notice is served that way.
Are asylum and refugee applications covered by this guidance?
The alert states that certain benefits, including refugee and asylum applications, are governed by separate regulations and procedures for RFEs, NOIDs, denials, and failure to appear. Those procedures sit outside Volume 1, Part E of the USCIS Policy Manual and are unaffected by this update.
Did the guidance change eligibility requirements for any benefit?
No. PA-2026-05 addresses evidentiary standards and adjudicative procedure rather than eligibility. The substantive requirements for each benefit are set by statute and regulation, and this policy update leaves those requirements as they stood before August 5, 2026. Eligibility itself is unchanged.
About the Author
Michelle Weltz is the founder of MW Law LLC, a boutique immigration firm at 680 N Lake Shore Drive in Chicago. She is a 2024-2025 Lawyers of Distinction honoree and a multi-state licensed immigration attorney serving multinational corporations, high-growth startups, and individual entrepreneurs establishing a U.S. presence.
Every client works directly with Michelle, who leads all strategy, filings, and communications. She volunteers with Centro Romero, a Chicago nonprofit serving immigrant and refugee communities. Learn more about Michelle Weltz and MW Law’s approach. Contact her at contact@mwlawllc.com or (312) 909-8253.
Sources
USCIS Policy Alert PA-2026-05, Evidence, Requests for Evidence, and Notices of Intent to Deny (Aug. 5, 2026), revising USCIS Policy Manual, Volume 1, Part E; 8 CFR 103.2(b)(8); 8 CFR 103.2(b)(8)(iv); 8 CFR 103.8(b); USCIS, “USCIS to Reduce Frivolous Immigration Benefits Requests by Reinforcing Evidence Standards” (Aug. 5, 2026).
This article is general information about U.S. immigration law and is not legal advice. Immigration law and policy change frequently — this article is current as of the date shown and may not reflect later developments. Reading it does not create an attorney-client relationship. Consult a licensed immigration attorney about your specific situation.