CAUTION: USCIS Can Deny Your Application Without Asking for Missing Evidence First

On August 5, 2026, USCIS issued Policy Alert PA-2026-05, rescinding the prior guidance that directed officers to issue a Request for Evidence or a Notice of Intent to Deny before denying an incomplete filing. Officers now have full discretion to deny a benefit request outright if required initial evidence is missing or if the filing does not establish eligibility at the time it is submitted. This matters most for applicants filing pro se, meaning without an attorney, relying only on their own understanding of the forms and instructions.

This is not a change to the underlying law. The burden of proof has always rested with the applicant under INA 291, and USCIS regulations at 8 C.F.R. 103.2(b) have always given officers discretion, not an obligation, to request additional evidence before deciding a case. What has changed is how that discretion will be exercised. The prior guidance encouraged officers to give applicants a chance to cure evidentiary gaps. That encouragement is gone.

This shift is most dangerous for applicants filing pro se or through a paralegal or notario who is not authorized to practice law. Assembling documents is not the same as knowing whether they legally establish a bona fide marriage, extreme hardship under INA 212(a)(9)(B)(v) or 212(h), admissibility, or any other element USCIS will scrutinize. A paralegal cannot make that legal judgment, and it is exactly what now determines whether a filing survives on first review.

Under the prior policy, a weak filing often drew an RFE, giving the applicant a second chance. That margin for error is gone. A denial under this policy is not just lost time and a lost filing fee. Depending on the case, it can leave an applicant without status, damage eligibility for future benefit requests, and in some cases trigger removal proceedings. There is often no straightforward way to reopen or reconsider once a case is denied on this basis.

Hiring an attorney to prepare a filing correctly the first time costs far less than trying to undo a denial, and a denial may not be undone at all. Anyone with a pending application, or preparing to file one, should have it reviewed by counsel before submission, not after a denial has already arrived. Better yet, work with immigration counsel to prepare the strongest most compelling application or petition before submitting. Contact the Immigration Law Office of Theodore Huang to schedule a consultation.

This post is provided for general informational purposes and does not constitute legal advice. Individual circumstances vary, and anyone affected by this rule should speak with an immigration attorney about their specific case.