Policy Change Effective Immediately Foretells Uptick in USCIS Denials

On August 5, 2026, USCIS issued a Policy Alert giving adjudicators full discretion to deny immigration benefit requests without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). This policy is effective immediately and applies to all requests pending or filed on or after August 5, 2026.

Under the prior policy, which has been limited or expanded over various presidential administrations over time based on how the political pendulum swings, USCIS officers were instructed to issue an RFE or NOID before denying a case. This process allowed a Petitioner or Applicant to address any questions a USCIS adjudicator may have had prior to making a potentially life changing decision that could impact the Petitioner (including U.S. employers), the Beneficiary, and the Beneficiary’s immediate family members. 

The regulatory authority for the policy can be found at 8 CFR § 103.2(b)(8)(ii).  The regulation has always given USCIS discretion to deny without an RFE when required initial evidence is missing or does not demonstrate eligibility. Prior guidance instructed that adjudicators “should generally issue an RFE or NOID if the officer determines there is a possibility the benefit requestor can overcome a finding of ineligibility for the benefit sought by submitting additional evidence.”   This new policy rescinds previous guidance and “restores USCIS officers’ full discretion to deny such benefit requests without first issuing an RFE or NOID, as allowed by the regulations.”  

Evidentiary Weight of Affidavits 

The policy also provides new guidance regarding “the evidentiary weight given to affidavits submitted in lieu of primary or secondary evidence.”  The changes to Volume 1, Chapter 6 of the Policy Manual describe affidavits in a separate category of evidence apart from primary and secondary evidence.  It instead notes that “Affidavits are generally considered tertiary evidence” and details a multi-factor process to determine the weight given to affidavits through an evaluation of its credibility, reliability, and authenticity. 

It notes that affidavits should contain: 1) “The nature of the affiant's relationship, if any, to the parties;” 2) “The basis of the affiant's knowledge;” and 3) “A statement of the facts the affiant knows regarding the matter, rather than mere conclusory statements.”  The manual further instructs officers to evaluate affidavits for credibility and states that “those that do not contain the above information may not be afforded significant probative value or evidentiary weight (such as whether the affidavit is sufficiently detailed, internally consistent, plausible, and explains how the affiant acquired knowledge of the facts set forth).”  It also instructs officers to compare the affidavits with available information to determine if there are inconsistencies. 

Lastly, the manual states: “[t]he circumstances surrounding the creation of records, such as evidence that a document was created immediately at the time of the event it claims to record, and whether its creation was as part of the regular conduct of business, may affect the weight given to the document. All furnished evidence should be scrutinized for consistency with claims made in the benefit request and information contained in DHS records.”

Time to Respond to RFEs 

The new guidance also eliminates the prior practice of generally providing the full 12 weeks to respond to an RFE. USCIS adjudicators may now set a shorter deadline on a case-by-case basis. The guidance also removes the additional 14-day allowance previously provided for certain notices mailed outside the United States or issued by an international USCIS office; such notices now receive only the generally applicable 3-day mailing allowance. 

Key Considerations for Employers  

1. Early Case Preparation and Filing & Cushion for Re-filing – It’s more important than ever to start extensions early while an employee is still maintaining status. If for some reason initial evidence is omitted from the filing (or USCIS indicates it’s missing), employers must plan ahead so that there is time to re-file before any status expiration, if needed. 
2. Lead Time and Expectations – If the business delays in providing documentation or evidence, but wants to rush to file, pushing back start dates may be more prudent than filing without supplemental evidence such as corporate evidence of doing business, expert opinions, organizational charts, or other evidence that may increase odds of outright approval. 
3. Cost Exposure – A denial means lost filing fees, plus the cost of re-filing and re-paying those filing fees. The financial repercussions of an incomplete filing will be significantly higher.
4. Employee Unease – Faced with the fact that there may be no room for error, employees may have overall anxiety about the process and want to ensure the business will support premium processing or re-filing if needed.
5. Employee Preparation – Sponsored workers must be encouraged to be responsive in gathering personal documents (educational credentials, prior employment letters, passport copies, marriage or birth certificates, translations, or other documentation) to alleviate delays in filing. 
6. H-1B Change of Employer Filings – Although the law allows an employee to start working for a new employer in a new position based upon the receipt, there is increased risk for employers who hire an individual with gaps in their immigration or employment history, or who have not disclosed another issue that could impact eligibility. Immigration assessments may save time and expense. 
7. Reevaluation of use of Affidavits – In light of the new scrutiny of affidavits as evidence, employers should examine use of affidavits and consider alternative evidence. This may be particularly critical in the PERM-based I-140 process where affidavits are often used to evidence beneficiary’s qualification or in the Adjustment of Status process where affidavits of birth are used often based on missing, inconsistent, or inaccurate birth records.

Next Steps 

We encourage employers to examine how the above will impact their own sponsorship processes, and to share this summary with hiring managers involved in sponsoring foreign professionals. We are happy to schedule a call to review how these changes may impact your specific employee population or to discuss how we may assist in developing processes to support or protect your organizational goals.