On August 5, 2026, U.S. Citizenship and Immigration Services updated its guidance concerning evidence, Requests for Evidence, commonly called RFEs, and Notices of Intent to Deny, commonly called NOIDs. The policy became effective immediately and generally applies to immigration benefit requests that were already pending or were filed on or after August 5, 2026.
The most important practical message is straightforward: applicants and petitioners should not assume that USCIS will provide another opportunity to correct an incomplete filing.
USCIS may still issue an RFE or NOID when appropriate. However, officers now have broader discretion to deny certain requests without first issuing one, particularly when required initial evidence was not submitted, the filing has no legal basis for approval, or the record does not demonstrate eligibility for the requested benefit. (USCIS)
This Does Not Mean That RFEs and NOIDs Have Been Eliminated
The policy does not say that USCIS will automatically deny every application containing an error or missing document. It also does not eliminate RFEs or NOIDs.
USCIS continues to have discretion to request missing or additional evidence when the circumstances warrant it. The significant change is that an RFE or NOID should no longer be viewed as a guaranteed opportunity to complete a case after filing.
In practical terms, an applicant should approach the filing date as the date on which the case must already be legally sufficient and properly documented—not as the beginning of the evidence-gathering process.
An RFE should be treated as a possible safeguard, not as a filing strategy.
The Applicant or Petitioner Continues to Carry the Burden of Proof
The person or organization requesting the immigration benefit has the burden of establishing eligibility:
At the time the application or petition is filed;
Throughout the adjudication process; and
At the time USCIS makes its decision.
Where the requested immigration benefit also requires a favorable exercise of discretion, the requestor must establish both legal eligibility and that the positive circumstances justify approval. USCIS approves a request when the applicable burden has been met and denies it when the evidence does not establish eligibility.
This principle is especially important in cases involving complicated immigration histories, prior violations, criminal matters, inconsistent records, previous denials, questions concerning relationships, discretionary concerns, or facts that require explanation.
Simply submitting a form and filing fee does not establish eligibility. The evidence accompanying the filing must demonstrate why the applicant or beneficiary qualifies under the applicable law.
Required Initial Evidence Must Be Submitted at Filing
USCIS forms and their accompanying instructions identify documents that must ordinarily be submitted with the application or petition. This is known as required initial evidence.
Depending on the immigration benefit, required initial evidence may involve proof of identity, immigration history, qualifying family or employment relationships, financial sponsorship, lawful admission, maintenance of status, eligibility for a particular classification, or other category-specific requirements.
Under the updated policy, when required initial evidence is missing, USCIS may either:
Issue an RFE requesting the missing evidence; or
Deny the benefit request without first issuing an RFE or NOID.
The choice is discretionary. Applicants should therefore avoid filing a substantially incomplete case with the expectation that USCIS will later provide a checklist of everything that remains missing.
Initial Evidence and Additional Evidence Are Not the Same
The policy distinguishes between initial evidence and additional evidence.
Initial evidence is the documentation that the governing regulation or USCIS form instructions require at the time of filing. Additional evidence may become necessary when the required initial documentation was submitted but does not fully establish eligibility or when USCIS needs clarification regarding a material issue. (USCIS)
This distinction matters because USCIS may be more likely to issue an RFE when a substantially complete case requires clarification or supplementation. By contrast, a filing that omits required initial evidence altogether may face denial without an opportunity to correct the omission.
Applicants should therefore carefully review both the form and its instructions before filing. The evidentiary requirements are not always contained within the form itself.
Primary Evidence, Secondary Evidence, and Affidavits
The updated guidance also emphasizes the differences among primary evidence, secondary evidence, and affidavits.
Primary evidence
Primary evidence is generally the official or direct documentation ordinarily used to prove a fact. Whenever required primary evidence exists and can be obtained, it should normally be submitted.
Secondary evidence
Unless a particular regulation provides otherwise, USCIS generally accepts secondary evidence when the required primary evidence does not exist or cannot be obtained. A requestor relying on secondary evidence should be prepared to explain and document why the primary evidence is unavailable. (USCIS)
The appropriate secondary evidence will depend on the benefit requested and the fact being established. An applicant should not simply omit an unavailable primary document without addressing its absence.
Affidavits
Affidavits can be useful, but they are not automatically equal in weight to official documentation. Under the updated guidance, and absent a different category-specific rule, affidavits generally become relevant when neither primary nor secondary evidence exists or can be obtained. (USCIS)
A strong affidavit should be detailed, based on the writer’s personal knowledge, internally consistent, and supported by any available corroborating documentation. General statements, conclusions, or affidavits from individuals without direct knowledge may carry limited evidentiary value.
RFE Response Periods May Be Shorter Than Twelve Weeks
Another important part of the policy concerns response deadlines.
USCIS regulations provide that:
An RFE response period may not exceed 12 weeks;
A NOID response period may not exceed 30 days; and
When a notice is served by mail, three additional days are added to the response period.
The 12-week period is a maximum—not a promise that every RFE will provide the full 12 weeks. USCIS officers may establish shorter response periods depending on the nature of the requested evidence. The previous practice of providing an additional 14 days for notices mailed outside the United States has also ended; the policy now provides the same three mailing days regardless of location.
The deadline printed on the notice should therefore be treated as controlling. Applicants should not assume that an extension will be granted, and USCIS regulations generally do not permit additional response time beyond the established deadline.
A Partial Response May Lead to an Immediate Decision
The policy also clarifies what happens when USCIS receives an incomplete response to an RFE or NOID.
When USCIS receives requested evidence—even if the submission responds to only part of the notice—the agency treats the submission as a request for a decision on the existing record. USCIS does not necessarily have to wait for the response deadline to pass or provide another opportunity to submit the remaining evidence.
This has several practical consequences:
Do not send a partial response merely to demonstrate that work is underway.
Review every numbered request and concern in the notice.
Address unfavorable facts directly rather than ignoring them.
Confirm that all exhibits referenced in the response are actually included.
Submit the complete response in the required manner before the stated deadline.
Retain proof of timely delivery or electronic submission.
When additional evidence cannot be obtained, the response should explain why, identify the steps taken to obtain it, and provide legally acceptable alternatives where available.
What Applicants and Petitioners Should Do Before Filing
A carefully prepared filing should include more than completed forms. Before submission, applicants and petitioners should consider the following review process.
Confirm eligibility before paying and filing
Determine whether every required legal element can be established as of the filing date. Filing early may not be beneficial if a necessary qualifying event has not occurred or required evidence does not yet exist.
Read the instructions for every form
Do not rely solely on the questions appearing on the form. The instructions may contain separate filing requirements, definitions, document requirements, exceptions, and category-specific evidence rules.
Create an evidence checklist
Match every eligibility requirement and every item of required initial evidence with a supporting document. The checklist should be completed before the filing is submitted.
Address unavailable documents
When primary evidence is unavailable, do not leave the issue unexplained. Determine whether secondary evidence is permitted and what proof of unavailability may be required.
Check for consistency
Names, dates, addresses, marital histories, employment records, immigration classifications, entries and departures, and prior filings should be reviewed across all forms and exhibits. An unexplained inconsistency may create a credibility or eligibility concern even when it began as an innocent mistake.
Explain material issues in advance
A legal memorandum, declaration, or carefully drafted explanation may be appropriate when the record contains unusual circumstances. USCIS should not be required to guess why an apparent inconsistency does not affect eligibility.
Organize the submission
Use descriptive exhibit labels and, for larger filings, an index or table of contents. Good organization does not replace substantive evidence, but it can help the officer understand how the documentation satisfies each requirement.
Preserve a complete copy
Keep an exact copy of the forms, supporting documents, cover letter, filing confirmation, and delivery record. This will be essential if USCIS later issues an RFE, NOID, interview notice, or decision.
Applicants With Pending Cases Should Also Pay Attention
Because the policy generally applies to benefit requests that were pending on August 5, 2026, it is not limited to newly filed cases. Applicants with pending matters should review whether their original filing included the required initial evidence and whether there are unresolved eligibility concerns.
That does not necessarily mean that everyone should immediately send unsolicited documents to USCIS. Whether additional evidence should be submitted—and how it should be submitted—depends on the case type, the procedural posture, the available filing method, and the nature of the evidence.
A poorly planned supplemental filing may create confusion, introduce inconsistencies, or fail to reach the correct record. Applicants with material omissions or concerns in a pending case should obtain case-specific guidance before acting.
Certain Immigration Categories May Follow Different Procedures
The policy alert acknowledges that certain immigration benefits, including refugee and asylum matters, are governed by different regulations and procedures concerning evidence, RFEs, NOIDs, denials, and failures to appear. Applicants should always consult the rules that apply to their specific immigration classification rather than assuming that a general USCIS policy operates identically in every proceeding.
The Practical Takeaway
The August 5, 2026 policy should not be viewed as a reason for panic. It is a reason for careful preparation.
USCIS has not eliminated RFEs or NOIDs. It has clarified that applicants and petitioners cannot rely on receiving one before a case is denied. A strong filing should therefore establish eligibility, contain the required initial evidence, address foreseeable concerns, and be ready for adjudication when it is submitted.
For applicants, families, employers, and petitioners, the best protection against a preventable denial is a complete and well-supported filing from the beginning.
Cann Legal Group recommends treating the filing date as the day the case should be capable of standing on its own—not as the day evidence collection begins.
This article provides general information and is not legal advice. Immigration filing requirements vary by benefit category and individual circumstances. Applicants should obtain advice based on the specific facts of their cases.