U.S. Citizenship and Immigration Services (USCIS) has issued new guidance restoring officers’ discretion to deny immigration benefit requests, including H-2A petitions, without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence is missing. 

Under the prior policy, USCIS officers generally were directed to issue an RFE or NOID when a filing lacked required initial evidence or otherwise failed to establish eligibility. Effective August 5, 2026, USCIS has returned to a stricter approach. Officers may deny a petition outright when the required initial evidence has not been submitted, rather than giving the petitioner an opportunity to cure the deficiency through an RFE.  USCIS expressly states that the new guidance “restore[s] USCIS officers’ full discretion” to deny such filings without first issuing an RFE or NOID.  

For H-2A employers, the practical consequence is significant. An incomplete Form I-129 petition or a filing that omits required supporting documentation could be denied rather than returned for additional evidence. The employer may then have to prepare and file a new petition, pay another filing fee, and wait for USCIS to adjudicate the replacement filing. In the time-sensitive H-2A process, even a relatively short delay can jeopardize an employer’s ability to have workers arrive by the anticipated start date. 

The new policy is effective immediately and applies to benefit requests that were pending or filed on or after August 5, 2026.  H-2A employers should therefore take extra care to ensure that every USCIS filing is complete and includes all required initial evidence before submission. An RFE should no longer be viewed as a guaranteed opportunity to correct an incomplete petition.