On August 5, 2026, USCIS published Policy Alert PA-2026-05 and updated the Policy Manual on evidence, Requests for Evidence, and Notices of Intent to Deny. The USCIS RFE policy change is not a proposal and there is no comment period. It took effect the day it was published.
TLDR: if a filing arrives without the initial evidence the regulations and form instructions require, the officer is no longer directed to ask you for it first. The officer may deny.
If you’ve been watching USCIS policy for a few years, this sounds familiar. USCIS applied the same core discretion from September 2018 until June 2021. This is a return to that approach, and we will set the 2026 guidance beside the 2013, 2018, and 2021 versions.
The operational that makes this iteration different is immediate application to all petitions. The 2018 policy set a date which set a fork in the road and directed adjudication posture to be pre-memo or post-memo.
As always, this article is not legal advice but a comparison of past policy to the new memo. Any change in immmigration policies should be discussed with appropriate counsel. This may help you begin that conversation.
What Changed on August 5
Up until August 4, 2026, an officer who found a record incomplete was generally directed toward an RFE or a NOID. USCIS describes the effect of that approach in its own words: the prior policy “created opportunities for frivolous or substantially incomplete filings, and in many cases was exploited to secure ancillary benefits.” In the context of EB-5 specifically, the perception of a grandfathering block on September 30, 2026 could be a market event that sees incomplete filings, seeking to lock-in immigration protection from a program lapse.
The agency’s policy is to return the decision to the officer, in a way that promotes the efficiency of the service. USCIS states that “when a benefit requestor fails to submit all required initial evidence, USCIS in its discretion may deny the benefit request for lack of initial evidence or for ineligibility or issue an RFE for the missing initial evidence,” and that it is “updating its policy guidance to restore USCIS officers’ full discretion to deny such benefit requests without first issuing an RFE or NOID, as allowed by the regulations.”
An RFE is now one of two options rather than the expected first step. Nothing in the update requires an officer to choose it. Officers taking a case straight to a denial will frequently need the support of supervisory staff to finalize the decision, but the aura of “moving the goalposts” is a real sentiment that investors who already filed will be asking about.
Three Operative Changes and Two Restatements
Three things moved.
One. A missing initial evidence item can end the case. Under the prior guidance that gap would more often have produced an RFE. The officer may now deny instead, at their discretion. This is the headline, and it returns to the approach in force from 2018 to 2021. There’s no published playbook that helps benefit requestors understand how to cure a denial that does not consider all the merits, but fails for incompletion. This is where EB-5 counsel can help understand, “what do we do if we get denied because a piece of evidence was missing?”
Two. The 12-week RFE clock is a ceiling, not a default. The prior Policy Manual guidance directed officers to the full period as standard practice. USCIS now states that “officers are not required to issue an RFE with a standard 12-week response period, but rather the maximum response period cannot exceed 12 weeks.” The response period is set case by case within that ceiling. Read the date printed on the notice rather than assuming a standard period.
Three. Overseas mail no longer adds 14 days. USCIS confirms it “no longer provides benefit requestors an additional 14 days to respond to notices mailed outside the United States, as the regulations only allow for an additional 3 days for notices served by mail.” For a requestor abroad, that is roughly two weeks of response time removed, which compounds the response burden if the RFE clock is set to 30 days.
Two items are being reported as changes and are better understood as restatements.
A partial response was already treated as a request for a decision. The update says it “clarifies” this. The regulation at 8 CFR 103.2(b)(11) sets out three ways to respond: submit a complete response, submit a partial response and ask for a decision on the record, or withdraw the benefit request. The practice of treating any partial submission as a request for a decision, whether or not the requestor asks, has been in the Policy Manual since the June 2021 guidance. What raises the stakes is not a restatement of that rule but the shorter clock sitting next to it.
The response caps and the bar on extensions did not change. As USCIS renders the regulation, “in no case shall the maximum response period provided in a[n RFE] exceed twelve weeks, nor shall the maximum response time provided in a [NOID] exceed thirty days. Additional time to respond to a[n RFE] or [NOID] may not be granted.” The bracketed terms are the agency’s substitutions for the regulatory text at 8 CFR 103.2(b)(8)(iv). The regulation has never allowed extensions, and the 2026 update does not seek to create one. Note that separate COVID-19 flexibilities, which allowed responses received within 60 days of the due date, ran from March 2020 until March 23, 2023 and are no longer available.
Separately, the update “clarifies the distinction between initial and additional evidence, primary and secondary evidence, and the evidentiary weight given to affidavits submitted in lieu of primary or secondary evidence.” That rewrite of the evidence chapter is genuinely new. For EB-5 source of funds work, where affidavits sometimes stand in for records that no longer exist, it is worth reading alongside your attorney.
What the August 5, 2026 Update Changes
USCIS Policy Alert PA-2026-05, published and effective the same day. Three operative changes, two restatements of rules that were already in force.
| Element | Before August 5, 2026 | On and after August 5, 2026 | Status |
|---|---|---|---|
| Filing is missing required initial evidence | Officer was generally directed toward an RFE or NOID before denying for missing initial evidence. | Officer has full discretion to deny outright, or to issue an RFE. An RFE is one option, not the first step. This returns to the policy that ran from 2018 to 2021. | Changed |
| Time to respond to an RFE | Officers generally provided the full 12 weeks as standard practice. | Up to 12 weeks, set case by case. No standard period. Read the date printed on the notice. | Changed |
| Notice mailed outside the United States | 14 additional days were added to the response deadline. | 3 days, the same as a domestic mailed notice, regardless of location. | Changed |
| Partial response to an RFE or NOID | Already treated as a request for a decision on the record. The Policy Manual has said so since the June 2021 guidance. | Same rule. USCIS says the update "clarifies" this. 8 CFR 103.2(b)(11) sets out three ways to respond, one of which is a partial response with a request for a decision. The practical risk rises only because the response window may now be shorter. | Restated |
| Response caps and extensions | RFE capped at 12 weeks, NOID at 30 days, no extensions. | Unchanged. Regulatory limits at 8 CFR 103.2(b)(8)(iv). Separate COVID-19 flexibilities ran to March 23, 2023 and are no longer available. | Unchanged |
Who it applies to. Benefit requests pending on August 5, 2026 and those filed on or after that date. There is no phase-in and no comment period. This is the sharpest break from the 2018 policy it otherwise resembles, which exempted everything already on file.
Also amended. Policy Manual Volume 1, Part E, Chapter 10, Section D, on revocation, rescission, and termination. Minor edits to two paragraphs and the final paragraph deleted. The alert does not say what the deleted paragraph contained.
Source: USCIS Policy Alert PA-2026-05, Evidence, Requests for Evidence, and Notices of Intent to Deny, August 5, 2026, amending USCIS Policy Manual Volume 1, Part E, Chapters 6, 9, and 10; 8 CFR 103.2(b)(8) and 8 CFR 103.2(b)(11). Informational only, not legal advice, and not an offer or solicitation of securities.
How the 2026 Guidance Compares to 2013, 2018, and 2021
USCIS has revisited this question four times since 2013. The chronology is worth setting out, because it shows which parts of the 2026 update are actually new, so someone seeing this for the first time can get an appropriate idea of what the government is presenting.
In June 2013, policy memorandum PM-602-0085 told officers to issue an RFE or NOID unless there was no possibility that additional evidence could establish eligibility. In July 2018, memorandum PM-602-0163 reversed course and gave officers full discretion to deny for missing initial evidence, effective that September. In June 2021, Policy Alert PA-2021-11 reversed again, rescinding the 2018 memorandum and returning officers to the 2013 approach. In August 2026, PA-2026-05 returned to the 2018 position, with immediate effect.
The 2018 policy was not enjoined or withdrawn as to the filings it covered. It took effect on September 11, 2018 and governed those adjudications for close to three years until it was rescinded. DACA requests were carved out because of separate district court injunctions, and refugee and asylum applications have always been governed by different procedures.
In short, the discretion to go right to a denial is a restatement of 2018 policy. The compression of the response period, and the application to petitions already pending, are new.
RFE and NOID Guidance Across Four Policy Cycles, 2013 to 2026
Most of the August 2026 headline returns to policy that already ran from 2018 to 2021. The response clock and the reach into pending cases are what is new.
| Element | 2013PM-602-0085 | 2018PM-602-0163 | 2021PA-2021-11 | 2026PA-2026-05 | Verdict |
|---|---|---|---|---|---|
| Deny for missing initial evidence without an RFE or NOID | No. RFE or NOID unless there was no possibility of establishing eligibility | Yes. Full officer discretion | No. Returned to the 2013 approach | Yes. Full officer discretion | Restates 2018 |
| Any partial response deemed a request for a decision | Not addressed | Not addressed | Yes. Entered the Policy Manual in the June 2021 update | Yes. Described as a clarification | In force since 2021 |
| RFE capped at 12 weeks, NOID at 30 days, no extensions | Yes | Yes | Yes | Yes | Regulation |
| Officers give the full 12 weeks as standard practice | Not addressed. Set by the separate 2011 and 2012 timeframe memos | Not addressed | Yes | No. Case by case, 12 weeks is only the ceiling | New in 2026 |
| Extra 14 days for notices mailed outside the US | Not addressed | Not addressed | Applied | Removed. 3 days only, same as domestic | New in 2026 |
| Applies to cases already pending | n/a | No. Anything received on or before Sept 11, 2018 was exempt. DACA carved out by court injunction | n/a | Yes. Pending and future filings alike | New in 2026 |
| Lead time before taking effect | n/a | About 60 days. Announced July 13, effective Sept 11, 2018 | Immediate | None. Published and effective Aug 5, 2026 | New in 2026 |
| Instrument | Policy memo plus Adjudicator's Field Manual | Policy memo plus Adjudicator's Field Manual | Policy Manual | Policy Manual, plus a rewrite of the evidence chapter and an edit to the revocation chapter | Partly new |
The net effect. The discretion to deny without an RFE restates 2018. The compression of the response period, and the application to petitions already pending, are new.
Sources: USCIS Policy Alert PA-2026-05 (Aug 5, 2026); USCIS Policy Alert PA-2021-11 (June 9, 2021); USCIS Policy Memorandum PM-602-0163 (July 13, 2018, effective Sept 11, 2018) and the USCIS public affairs Q and A issued with it; USCIS Policy Memorandum PM-602-0085 (June 3, 2013); 8 CFR 103.2(b)(8) and 8 CFR 103.2(b)(11). Informational only, not legal advice, and not an offer or solicitation of securities.
Why the Timing Matters for EB-5
The September 30, 2026 grandfathering deadline is seven weeks out. That is the last date on which an I-526E can be filed to be eligible for grandfathering treatment under the Reform and Integrity Act. How that provision applies to any individual filing is a question for counsel. We wrote about the deadline separately.
The deadline pressure and the new guidance point in opposite directions. Any filing plan that treated an RFE as a routine opportunity to supplement the record should be revisited.
USCIS describes the behavior it is targeting as “nefarious filing practices such as frivolous and placeholder filings to secure ancillary benefits,” and says the update “discourages unfair advantages accruing to some benefit requestors who submit incomplete benefit requests while others wait to obtain all necessary evidence.” The alert does not name any industry or benefit category. Investors and counsel should read the agency’s description and assess for themselves whether anything in a contemplated filing approach resembles it.
Filing speed is not itself a basis for denial under the update. The variable the guidance addresses is the completeness of the record at submission, which is a question for counsel on the specific file.
What This Means for Your Immigration Attorney
This is where the change lands hardest, and it is worth an explicit conversation with counsel rather than an assumption. Your attorney’s judgment about what goes in the box at filing is now the judgment that carries the case.
Questions worth putting to your attorney directly:
Is my package complete against the form instructions, not just complete in substance? Initial evidence is defined by regulation and by the form instructions. A petition can be persuasive on the merits and still be missing a required item.
Where is my source of funds record thin, and what are we doing about it before filing? Source of funds is a frequent friction point in I-526E adjudication, and it is the area where documents most often arrive late. Our guide on what qualifies and how to document it covers the categories. The strategy is your attorney’s call.
Are we relying on affidavits anywhere? If primary or secondary records are unavailable and an affidavit is standing in, ask counsel how the updated evidentiary weight guidance affects that choice.
What is our plan if an RFE arrives with a short clock? Confirm who receives the notice, how quickly it reaches you, and what the response plan looks like on a six-week window rather than a twelve-week one. If you are abroad, ask counsel to build the calendar on three days of mailing time.
How do you handle partial responses? Ask counsel how they approach this and confirm you both understand the consequence of one.
If my petition is already pending, is any step available or advisable? That is a question for your attorney, who can assess the filed record and the posture of the case.
If you do not yet have EB-5 counsel, engaging before you choose a project is worth considering. The sequencing matters more under this guidance than it did last week.
The Project Side: Job Creation Evidence
Half of an EB-5 record belongs to the investor and half to the project. Source of funds, lawful means, and personal documentation sit with the investor and counsel. Job creation, capital deployment, and business plan compliance sit with the regional center and the project sponsor. At I-829, the job creation evidence carries the petition.
The same completeness standard now applies to that half of the file, and the sequencing of when that evidence is created matters.
Investors should understand how a given project approaches economic modeling for direct, indirect, and induced job creation; how project expenditures are tied to the jobs claimed; how records are retained over the life of the investment; and who is responsible for reporting job creation to USCIS. Our page on job creation requirements sets out how the models work.
It is reasonable for an investor to ask any regional center what job creation evidence is expected to exist at the time an I-829 is filed, who is responsible for maintaining it, and how it is documented today. Ask before you invest.
Questions to Raise With Counsel This Week
For investors preparing to file, four items are worth raising with counsel now.
- Whether the package has been checked item by item against the form instructions before anything is submitted.
- Whether any source of funds gaps remain open. It is the slowest part of the file to close and the most common place a record is thin.
- Who receives and opens USCIS correspondence, and how quickly it reaches counsel. Three days of mailing time and a possibly shorter response window leave little room for a notice sitting unopened.
- What job creation evidence the project sponsor has today.
For investors with something already pending, the useful step is a conversation with counsel about whether the filed record reads as a complete package on its own.
The EB-5 process roadmap gives the full sequence if you are earlier in the process.
This article is informational only and is not legal advice. USCIS policy is applied to the facts of each individual filing. Speak with your own immigration attorney about how the August 5, 2026 guidance affects your petition. Nothing on this page is an offer or solicitation to sell or acquire securities or any other financial product, and this page is not a prospectus, disclosure statement, or other offering document. Any offering of securities will be made solely by means of a confidential private offering memorandum and in accordance with applicable law.
Frequently Asked Questions
Does the new USCIS RFE policy mean I will never receive an RFE?
No. USCIS retains the option to issue an RFE. The change is that the officer is no longer directed toward one when initial evidence is missing. USCIS states it may “deny the benefit request for lack of initial evidence or for ineligibility or issue an RFE for the missing initial evidence.” Both remain available. Neither outcome is automatic. This is informational only and not legal advice.
Does this apply to my petition if I already filed?
USCIS states the guidance “is effective immediately and applies to benefit requests pending or filed on or after the publication date.” The publication date is August 5, 2026. What that means for a specific petition is a question for your immigration attorney.
How long do I have to respond to an RFE now?
Up to twelve weeks, but not automatically twelve weeks. USCIS states that “officers are not required to issue an RFE with a standard 12-week response period, but rather the maximum response period cannot exceed 12 weeks.” A NOID remains capped at thirty days. Read the deadline printed on your notice.
I live outside the United States. Do I still get extra time for mailing?
Three days, the same as a domestic notice. USCIS states it “no longer provides benefit requestors an additional 14 days to respond to notices mailed outside the United States.”
Is it new that a partial RFE response is treated as a request for a decision?
No. The update says it “clarifies” the point rather than changing it. The regulation at 8 CFR 103.2(b)(11) has long set out three ways to respond, one of which is a partial response with a request for a decision on the record, and the Policy Manual has treated any partial submission that way since the June 2021 guidance. What changed around it is the response window, which may now be shorter than twelve weeks. Discuss timing with your attorney before sending anything.
Has USCIS done this before?
Yes. USCIS gave officers the same discretion in a July 2018 policy memorandum that took effect on September 11, 2018 and stayed in force until it was rescinded on June 9, 2021. The 2018 version applied only to filings received after its effective date. The 2026 version applies to pending petitions as well.
Did anything change outside the RFE and NOID rules?
Yes. The alert also amends the Policy Manual chapter covering revocation, rescission, and termination, making minor edits to two paragraphs and deleting the final paragraph of that section. The alert does not describe what was deleted. Ask counsel to review that chapter alongside the evidence guidance.
Should I still file before the September 30, 2026 grandfathering deadline?
The deadline has not changed. What has changed is the cost of filing an incomplete package to meet it. That tradeoff is a question for your immigration attorney based on the state of your documentation. This is informational only and not legal advice.
How does this affect the I-829?
The same completeness standard applies. The I-829 record turns on job creation and sustainment evidence, most of which comes from the project rather than the investor. Ask your regional center what that evidence looks like now.
This article is informational only and is not legal advice. USCIS policy is applied to the facts of each individual filing. Speak with your own immigration attorney about how the August 5, 2026 guidance affects your petition. Nothing on this page is an offer or solicitation to sell or acquire securities or any other financial product, and this page is not a prospectus, disclosure statement, or other offering document. Any offering of securities will be made solely by means of a confidential private offering memorandum and in accordance with applicable law.
