On August 5, 2026, USCIS announced an immediate change to its policy memo authorizing immigration examiners and adjudicators to deny initial filings and submissions without an opportunity for filers to submit additional information, traditionally known as an RFE (“requests for evidence”).  Further, the agency advised that if an original submission does not include initial evidence demonstrating the eligibility for the immigration benefit sought, a costly resubmission, which could cost petitioners thousands of dollars in filing fees would have to be filed.  Filing a Motion to Reopen or Reconsider a denial would take many months and defeat the purpose of transferring employees to the USA on an expedited basis and could also result in the delay of family-based petition adjudication, hindering immediate relatives of U.S. citizens and others from immigrating to the United States.  This new policy rebuts a decades-long policy of the agency to request further information or clarification when submissions are filed for family-based and employment-based immigrant and nonimmigrant petitions and there is further inquiry or request for documentation to facilitate approval of the initial submission.  The link to the Policy Alert may be found here: 20260805-EvidentiaryStandards.pdf

Further, the agency indicated that when it does issue requests for clarification of documentation submitted relating to initial submissions, the traditional response time of 12 weeks would no longer be the standard, time honored response time, and immigration adjudicators could reduce the response time.

The ‘preponderance of the evidence standard’ which was the traditional standard observed by USCIS in granting benefits, will no longer be applied.  USCIS also stated that too many frivolous or substantially incomplete filings are submitted, and the granting of ancillary benefits, including the ability to secure employment authorization and international travel permission while cases are pending resulted in an abuse of its agency directives.

USCIS also issued separate guidance on the same day mandating that its adjudicators suggest DNA testing for family-based cases where evidence of a qualifying family relationship would need to be established and proven.

USCIS has already incorporated these changes into its Policy Manual, and the changes will affect all pending applications as well as petitions filed on or after August 5, 2026.  Comments on the new policies may be filed with USCIS until September 7, 2026.

How This New Guidance Will Affect U.S. Employers and Foreign Nationals 

While USCIS claims in its announcement that it already specifies in its instructions what constitutes initial evidence for every form of immigration benefit sought from the agency, the reality is that it is not always clear what documents are required. Over the decades, immigration submissions and filings have increased from several pages accompanying the mandatory forms to hundreds of pages of support documentation, including financial disclosures, detailed corporate ownership structures and more.  For this reason, we advise that it would be beneficial to provide as much documentation in advance to counsel to prepare initial filing with USCIS.  

Further, in the instance a short window furnished relating to a request for evidence is issued by USCIS, the more information furnished to counsel at the outset will optimally avoid any request for additional evidence or an outright denial for benefits.

FOR MORE INFORMATION:   
If you have any questions or would like to discuss, please reach out to a member of the Tarter Krinsky & Drogin Business & Corporate Immigration Practice.