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When U.S. Citizenship and Immigration Services (USCIS) issued updated guidance on Aug. 5, 2026, regarding evidentiary standards, Requests for Evidence (RFEs), and Notices of Intent to Deny (NOIDs), much of the immediate attention focused on the agency’s renewed emphasis on complete filings and its discretion to deny certain cases without first issuing an RFE or NOID.

Only weeks into implementation, however, another aspect of the policy is becoming increasingly important for employers, foreign nationals, and immigration practitioners: significantly shorter RFE response periods.

We are now seeing RFEs issued under the new framework that provide 30 days to respond, rather than the 84-day response period practitioners have commonly received in cases.

That is a meaningful operational change.

What Changed on Aug. 5?

The Aug. 5 policy guidance outlined several principles that substantially increase the importance of preparing a complete and well-documented filing from the outset. USCIS emphasized that applicants and petitioners bear the burden of establishing eligibility at the time of filing and must remain eligible through adjudication. The agency also restored broader discretion to deny a benefit request without first issuing an RFE or NOID where required initial evidence is missing or the evidence submitted does not establish eligibility.

The policy applies to benefit requests pending or filed on or after Aug. 5, 2026, unless otherwise provided by regulation or USCIS policy. But the guidance also addressed something that received comparatively less attention: how much time USCIS gives applicants and petitioners to respond when it does elect to issue an RFE.

The 84-Day Response Period May No Longer Be Assumed

USCIS regulations establish a maximum, rather than a guaranteed, response period for RFEs. An RFE may provide a response period determined by USCIS, but that period cannot exceed 12 weeks.  Historically, practitioners became accustomed in many case types to receiving the maximum 12-week — or 84-day — response period. That time was particularly important when an RFE required extensive documentation, expert opinions, corporate records, financial evidence, or information from multiple third parties.

Under the new guidance, USCIS has made clear that officers may establish case-specific response periods shorter than the regulatory maximum. We are now seeing that authority exercised in practice, with RFEs providing approximately 30 days to prepare and submit a complete response. The distinction is important: USCIS has not adopted a universal 30-day RFE deadline. Rather, the agency is exercising its existing authority to provide shorter response periods. The practical result for applicants and petitioners may nevertheless be significant.

Thirty Days Can Pass Quickly

A 30-day deadline may be challenging even for a relatively straightforward RFE. For more complex employment-based or investment-based matters, an RFE may require coordination among employers, employees, investors, accountants, economists, business-plan writers, regional centers, project developers, educational institutions, foreign banks, or other third parties. Documents may need to be obtained from overseas. Foreign-language materials may require certified translations. Corporate or financial records may need to be assembled and analyzed. Expert reports may need to be prepared or updated.

The difference between 84 days and 30 days may therefore materially affect how an RFE response must be managed. Moreover, USCIS generally does not grant extensions of an RFE response deadline. The response must be submitted within the period provided in the notice. The new policy also makes partial responses particularly risky. USCIS guidance provides that submitting only some of the requested evidence may be treated as a request for the agency to decide the case on the existing record.

The Broader Message: Front-End Preparation Matters More Than Ever

The shortened RFE periods reinforce the larger message of USCIS’s Aug. 5 policy change: applicants and petitioners should not view the RFE process as an opportunity to complete or substantially supplement a filing that was not fully developed when submitted. 

This has several practical implications. First, applicants may wish to prepare filings as though USCIS will adjudicate them based entirely on the initial submission. Applicants may want to include required initial evidence and proactively address foreseeable eligibility issues. 

Second, applicants, petitioners, and employers should consider preserving the supporting records underlying the filing so they can be accessed quickly if USCIS raises questions. Third, when an RFE is received, it should be reviewed immediately. Under the prior practice, parties sometimes had sufficient time to spend several weeks gathering documents before beginning substantive preparation of the response. A 30-day deadline leaves little room for delay.

Finally, cases involving third-party documentation deserve particular attention. If evidence may later need to be obtained from banks, former employers, universities, foreign government agencies, corporate affiliates, investors, or other outside sources, identifying those potential evidentiary needs before filing might substantially reduce risk.

What Employers and Foreign Nationals Should Consider Now

The first weeks following implementation of the Aug. 5 guidance suggest that the change is not merely theoretical. USCIS has signaled a more demanding approach to evidentiary sufficiency while simultaneously giving adjudicators greater discretion both to deny cases without first requesting additional evidence and, where an RFE is issued, to provide a shorter period in which to respond. For employers, investors, and foreign nationals, the practical takeaway is straightforward: the margin for correcting or supplementing a filing after submission may be shrinking. Petitions and applications should therefore be prepared as comprehensively as possible at filing, and any RFE or NOID received after Aug. 5 should be treated as immediately time sensitive. Applicants and petitioners should carefully review the deadline stated on the notice rather than assume that the traditional 84-day RFE response period applies. As USCIS continues implementing the new policy, stakeholders should also watch closely to determine whether 30-day RFE response periods become more widespread across particular case types or adjudicating offices.

A missed biometrics appointment may appear to be an administrative matter that can be easily corrected, but immigration applicants should not assume that the U.S. Citizenship and Immigration Services (USCIS) will continue rescheduling missed appointments, even when there is a legitimate reason for being unable to attend.

USCIS has denied immigration benefit applications as abandoned for failure to appear for biometrics, including in cases where applicants previously requested that their appointments be rescheduled. A rescheduling request does not guarantee that USCIS will grant it, particularly where an appointment has already been rescheduled.

USCIS May Deny an Application for Failure to Appear

Biometrics are required for many immigration applications and allow USCIS to conduct identity, background, and security checks. Under 8 C.F.R. Section 103.2(b)(13)(ii), when an applicant fails to appear for required biometrics or another required in-person process, USCIS may treat the benefit request as abandoned and deny it unless, by the appointment time, USCIS has received a rescheduling request that it determines warrants excusing the failure to appear.

The regulation does not provide unlimited rights to reschedule. USCIS evaluates timely requests for good cause and retains discretion to determine whether another appointment is warranted. USCIS’s procedures reflect this limitation: the online biometrics rescheduling tool generally cannot be used once an appointment has already been rescheduled two or more times. In those circumstances, the applicant must contact USCIS directly.

The ability to request a new appointment should not be confused with a right to have that request granted.

International Travel and Extended Absences Create Additional Risks

This issue might become particularly problematic when an applicant is outside the United States when USCIS schedules biometrics. An applicant may have notified USCIS of travel plans or requested a different appointment date, but that does not mean USCIS will accommodate the request or wait until the applicant returns.

For applicants residing abroad, USCIS policy provides that the agency may, rather than must, arrange biometrics collection at certain locations outside the United States. In practice, overseas biometrics collection is rarely available as a practical alternative to appearing at a USCIS Application Support Center. Applicants planning extended international travel may wish to account for the possibility of a biometrics appointment before departing and should be prepared to return to the United States promptly if necessary to attend. Travel plans, even legitimate or longstanding ones, do not require USCIS to repeatedly reschedule an appointment.

Monitor USCIS Notices Carefully

The risk increases when applicants do not receive or review an appointment notice promptly. USCIS generally sends biometrics notices to the applicant’s address of record. Applicants may wish to closely monitor their physical mail and USCIS online accounts throughout the pendency of a case, even when represented by counsel. Those traveling for extended periods should arrange for someone to monitor their mail and immediately forward any USCIS correspondence. Applicants should also ensure that USCIS has their current mailing address and that any required change of address has been properly submitted.

For EB-5 investors specifically, applicants may wish to maintain a U.S. address or residence, monitor their mail regularly, and attend scheduled appointments. Two or more rescheduling requests or missed appointments might result in denial of an immigration application, including Form I-485 or Form I-829. Overcoming a denial based on abandonment is difficult where USCIS has mailed the notice to the applicant’s address of record.

Promptly Rescheduling If Necessary

There are legitimate circumstances in which an applicant cannot attend a scheduled appointment, and USCIS permits rescheduling requests based on good cause. If rescheduling is unavoidable, however, the request should be made before the scheduled appointment and in accordance with USCIS procedures.

Applicants should retain documentation confirming the request and the circumstances supporting it and continue monitoring the case until USCIS issues a new appointment notice. This is particularly important for applicants who have previously rescheduled.

Where reasonably possible, attending the appointment USCIS has scheduled may help reduce the risk of an abandonment denial.

An Abandonment Denial May Have Significant Consequences

A denial for abandonment can be particularly consequential because USCIS may deny the application without reaching its substantive merits.

Depending on the benefit involved and the applicant’s circumstances, the consequences may extend beyond filing another application. A denial might affect an applicant’s ability to remain or work in the United States, travel, pursue adjustment of status, or continue an immigration strategy dependent on a pending application. An abandonment denial may potentially be challenged through a motion to reopen in certain circumstances, but doing so would involve additional filing fees, legal fees, delays, and uncertainty, with no guarantee that USCIS will reopen the case.

Practical Takeaways for Immigration Applicants

Immigration applicants with pending USCIS matters should consider a biometrics appointment a significant case requirement, not a routine appointment that can be moved for convenience. Applicants may wish to:

  • Monitor physical mail and their USCIS online account regularly;
  • Keep their mailing address current with USCIS;
  • Arrange for USCIS correspondence to be monitored during international travel or extended absences;
  • Attend the originally scheduled biometrics appointment whenever reasonably possible;
  • If rescheduling is unavoidable, submit the request before the appointment and retain confirmation of the request;
  • Not assume that repeated rescheduling requests will be granted; and
  • Continue monitoring the case until a new appointment is confirmed.

Applicants should not assume that a biometrics appointment can simply be rescheduled. USCIS has authority to deny an application as abandoned for failure to appear and discretion in determining whether a rescheduling request excuses that failure. Careful monitoring of USCIS correspondence and timely attendance at biometrics appointments may help prevent an otherwise viable immigration application from being denied on procedural grounds.

U.S. Citizenship and Immigration Services (USCIS) has issued an interim final rule establishing a framework under which the agency may require certain immigration benefit requests to be filed electronically. The rule, published on Aug. 11, 2026, took effect immediately.

The rule does not require applicants or petitioners to refile pending cases electronically, and it does not immediately eliminate paper filing for forms that currently permit or require paper submission. Instead, the rule creates the regulatory mechanism USCIS may use to transition particular forms — or specified categories within a form — from paper filing to mandatory online submission.

How Mandatory E-Filing Will Be Implemented

The Interim Final Rule permits USCIS to require certain immigration benefit requests to be submitted electronically. However, USCIS cannot immediately designate a form as mandatory for e-filing.

Before USCIS may require online filing for a specific form, two conditions generally must be met:

  1. The form must have been available for electronic filing for at least 180 days; and
  2. USCIS must then provide at least 60 days’ advance notice on its website identifying the affected form or filing category and the date on which the electronic-filing requirement will begin

USCIS may impose the requirement on an entire form or only on particular filing categories. Filers must review the applicable USCIS form page and instructions before each submission rather than assume that the same filing method applies to every use of a form.

Electronic filing may involve completing a form through a USCIS online account or uploading a PDF of the completed form, together with supporting evidence and other required documents. Once e-filing becomes mandatory for a particular request, USCIS may reject a paper filing that does not qualify for a waiver.

Waivers for Undue Hardship

The rule also establishes a waiver process for individuals who would experience undue hardship if required to file electronically. The availability of a waiver should not be treated as automatic. Individuals seeking an exception may need to follow a designated procedure and provide sufficient information supporting the request. USCIS must make the waiver form available before it begins mandating e-filing. The agency will issue additional instructions concerning the waiver procedure, required evidence, and applicable fee.

Practical Considerations

Mandatory electronic filing may ultimately create efficiencies, including faster intake, immediate submission confirmation, online payment, and easier access to case information. At the same time, the transition may present practical challenges for complex employment-based filings that include extensive supporting evidence, multiple related forms, premium-processing requests, or applications submitted concurrently. Employers may also need to revise internal review and signature procedures so that cases can be finalized and submitted through the USCIS online-account system without last-minute delays.

Although immediate filing procedures remain unchanged, employers may wish to begin preparing for a filing environment in which online submission may become mandatory on relatively short notice. Foreign nationals should monitor USCIS announcements, review online-account access and permissions, and evaluate whether existing document-collection and approval workflows can support electronic filing. Employers may also wish to utilize the electronic filing system proactively to build familiarity, as the setup and form completion processes can be complex and time-consuming. The rule signals USCIS’ continued effort to modernize benefit-request intake and adjudication, and it may eventually change how employers, foreign nationals, and their counsels prepare and submit immigration filings. USCIS is accepting public comments on the rule for 60 days following publication, which is Oct. 13, 2026.

The Trump administration has prioritized immigration policy, with new developments emerging on an almost weekly basis. From changes affecting visa processing and adjustment of status to increased vetting, enforcement initiatives, employment authorization, humanitarian programs, and agency adjudication standards, employers and foreign nationals are navigating a rapidly shifting immigration landscape.

The latest development comes from U.S. Citizenship and Immigration Services (USCIS). On Aug. 5, 2026, USCIS updated its Policy Manual to reinforce the principle that applicants and petitioners should establish eligibility for an immigration benefit at the time of filing. The agency has also restored broader discretion for officers to deny certain applications and petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

This represents a departure from the approach adopted in 2021, under which USCIS officers were generally instructed to issue an RFE or NOID when additional evidence could potentially establish eligibility. Under that policy, an incomplete filing did not necessarily result in denial without first allowing the applicant or petitioner an opportunity to supplement the record.

What Changed?

Under the August 5 policy update, USCIS emphasizes that the burden rests with the applicant or petitioner to establish eligibility and submit required initial evidence at the time of filing. USCIS form instructions identify the initial evidence required for particular benefit request, and officers once again have broader discretion to deny a filing without providing an opportunity to cure deficiencies through an RFE or NOID. This approach mirrors a policy USCIS implemented during the first Trump administration in 2018, which similarly expanded adjudicators’ discretion to deny filings without first issuing an RFE or NOID where required initial evidence was missing or the record did not establish eligibility.

The 2026 policy is effective immediately and applies to benefit requests pending or filed on or after Aug. 5, 2026, except where regulations or other USCIS policies provide otherwise.

USCIS has characterized the change as an effort to discourage frivolous or substantially incomplete filings and prevent applicants from submitting what the agency describes as “placeholder” applications to obtain benefits associated with a pending filing, such as employment authorization.

The Practical Message: The Initial Filing Matters More Than Ever

For employers, investors, foreign nationals, and their counsel, the practical consequence is straightforward: assuming that an RFE will provide an opportunity to fix an incomplete filing carries increasing risk. An RFE should not be viewed as part of ordinary case preparation. Under the prior policy, however, applicants and petitioners had greater assurance that USCIS would request additional evidence where a potentially curable deficiency existed. That assurance has now been substantially reduced.

Petitioners and applicants should approach the initial filing as though it may be their only opportunity to establish eligibility. Required initial evidence should be carefully identified, documentation should be reviewed for inconsistencies or gaps, and legal arguments should be developed before submission rather than reserved for a possible RFE response.

What This Means for Employment-Based Immigration

The policy has implications across employment-based immigration categories. H-1B, L-1, O-1, immigrant petitions, and adjustment applications frequently involve complex factual records, and a missing document or inadequately developed eligibility argument can materially affect adjudication outcomes.

Employers should be cautious about filing cases primarily to meet a deadline when key evidence remains outstanding. While timing pressures are common in immigration practice, the new policy increases the importance of determining whether the record submitted at filing independently demonstrates eligibility. It also reinforces the need for employers and foreign nationals to respond promptly to requests from immigration counsel for supporting documentation. Delays in providing corporate records, employment documentation, educational evidence, or other required materials until shortly before a filing deadline may create greater risk in the current adjudicatory environment.

Significance for EB-5 Investors

The timing of this policy change is notable for EB-5 investors preparing petitions ahead of the Sept. 30, 2026, grandfathering deadline under the EB-5 Reform and Integrity Act.

EB-5 petitions are inherently document-intensive. Investors may need extensive documentation establishing the lawful source and path of investment funds, while the underlying project and regional center filings involve their own substantial evidentiary requirements. With September 30 approaching, investors seeking to preserve grandfathering protections may feel pressure to file quickly. The new USCIS policy, however, makes the distinction between filing quickly and filing completely important.

Investors should not assume that deficiencies in source-of-funds documentation or other required evidence can be addressed later through an RFE. Cases should be initiated sufficiently in advance to permit counsel to review bank records, tax documents, employment and compensation records, property transactions, gifts, loans, business proceeds, and other evidence relevant to the particular source of investment capital. The deadline remains important, but so does filing a petition capable of establishing eligibility based on the record submitted to USCIS.

Adjustment of Status Filings Also Require Care

The policy applies equally to adjustment of status applications, particularly as USCIS continues to increase scrutiny of adjustment filings and the circumstances surrounding an applicant’s eligibility. Foreign nationals filing Form I-485 together with related applications for employment authorization and advance parole should make certain that the adjustment application itself is complete and supported by required initial evidence.

The fact that a pending adjustment application may provide collateral benefits makes it important not to treat the underlying filing as a placeholder. Immigration strategies built around obtaining an Employment Authorization Document (EAD) or other interim benefits from a pending application should be evaluated carefully. The administration has identified the use of incomplete filings to obtain associated immigration benefits as one of the concerns underlying the new policy.

Another Development in a Rapidly Changing Immigration Environment

This policy should not be viewed in isolation. The administration has maintained a focus on immigration, and policy changes are occurring with frequency across USCIS, the Department of State, Customs and Border Protection, Immigration and Customs Enforcement, and the Department of Homeland Security. Immigration policy is evolving not only through legislation or formal rulemaking, but also through policy memoranda, executive actions, agency guidance, adjudication practices, and litigation.

For employers and foreign nationals, immigration planning should not be static. Strategies that were appropriate months ago — or even weeks ago — may warrant reconsideration as new rules, policy memoranda, executive actions, litigation developments, and adjudication standards emerge. The Aug. 5 USCIS policy update reflects that changing environment and carries a procedural message: applicants and petitioners should not rely on USCIS to provide a second opportunity to establish eligibility. Preparation before filing remains essential.

In May 2026, United States Citizenship and Immigration Services (USCIS) issued a policy memorandum signaling a shift in how employment-based permanent residence cases may be processed. The memorandum encourages adjudicators to deny adjustment of status (Form I-485) applications rather than issue requests for evidence (RFEs) in appropriate cases, with the expectation that many applicants could instead pursue immigrant visa processing abroad through U.S. consulates.

Considered alongside the current state of the Department of State (DOS), the policy raises an important question: can DOS realistically absorb an increase in these cases?

Recent reports suggest the answer is uncertain. Also see our June 2026 blog post on early implementation trends.

A Department Under Strain

A recent Financial Times article describes challenges facing the DOS. More than half of U.S. ambassadorial positions reportedly remain vacant, staffing has been reduced by more than 20%, and over 3,000 employees have departed. Career diplomats have been replaced at historically low rates, while consular sections – already managing high visa demand – are expected to operate with fewer personnel and reduced institutional experience.

Although embassies continue operating under Chargés d’Affaires, leadership vacancies and workforce reductions affect efficiency, consistency, and the DOS’ capacity to process complex immigration matters.

For years, employment-based applicants have generally viewed adjustment of status as the more predictable path to permanent residence because it allows them to remain in the United States while USCIS adjudicates the case. If a growing number of applicants are instead required to complete processing through U.S. consulates overseas, the operational realities at DOS become important.

What This Could Mean for Employment-Based Applicants

Longer Processing Times

Shifting cases from USCIS to DOS may transfer existing backlogs from one agency to another rather than reduce overall processing times.

Employment-based immigrant visa cases often require coordination across multiple government agencies, including the National Visa Center and the applicable U.S. embassy or consulate. Reduced staffing and fewer available interview appointments could lengthen the time required to complete permanent residence processing.

For employers planning workforce transitions or international recruitment, these delays may create uncertainty.

Greater Risk of Status Gaps

A key advantage of adjustment of status is that applicants may remain lawfully present in the United States while the application is pending.

Applicants pursuing consular processing, however, face a different set of challenges.

If an individual reaches the end of their underlying nonimmigrant status before an immigrant visa interview becomes available, questions may arise regarding whether they can lawfully remain in the United States while waiting for overseas processing. Depending on the facts of the case, applicants may need to maintain an independent nonimmigrant status for a longer period than originally anticipated.

This is particularly important for employees whose H-1B, L-1, E-2, TN, or other temporary status may be approaching expiration.

Employment Authorization May No Longer Be Available

Applicants adjusting status in the United States generally become eligible to obtain employment authorization documents (EADs) and advance parole while their Form I-485 is pending.

Applicants pursuing immigrant visa processing abroad generally do not receive these interim benefits.

As a result, employers may need to rely on extensions of underlying work-authorized status. Where extensions are unavailable, interruptions in employment authorization are a possibility worth planning for.

Travel and Mobility Challenges

Adjustment applicants typically receive advance parole allowing international travel while their green card application is pending.

Consular processing requires applicants to coordinate travel, visa interviews, medical examinations, and international logistics. Delays in visa issuance following an interview can result in employees remaining abroad for an extended period, disrupting business operations and personal obligations.

Variability in Visa Adjudications

Reduced staffing may also affect consistency.

Officers handling complex employment-based immigrant visa cases with less experience may produce greater variation in adjudications. Applicants and employers should anticipate more detailed interview preparation and more comprehensive supporting documentation.

Practical Considerations for Employers

Employers sponsoring permanent residence should evaluate whether employees have a viable strategy for maintaining work authorization if processing extends beyond original expectations.

Considerations include:

  • Reviewing expiration dates for underlying nonimmigrant status.
  • Identifying employees who may require additional H-1B, L-1, or other status extensions.
  • Preparing for longer overseas processing timelines.
  • Assessing business continuity if key personnel must remain abroad pending visa issuance.
  • Building additional time into onboarding and workforce planning.

Looking at the Broader Picture

These developments may represent more than a temporary adjustment.

If USCIS increasingly directs applicants toward consular processing while DOS continues operating with reduced staffing and leadership vacancies, employment-based immigration processing may experience changes affecting where cases are adjudicated and the timing of permanent residence processing.

Immigration strategies that assumed adjustment of status as the default path warrant review, with greater attention to maintaining nonimmigrant status, preserving uninterrupted work authorization, and preparing for longer and more complex consular processing.

As federal immigration agencies continue to evolve, permanent residence planning will benefit from evaluating how the immigration system functions as an interconnected whole rather than focusing on any single agency’s policy change in isolation.

On July 18, 2026, U.S. Citizenship and Immigration Services (USCIS) announced that it received sufficient H-1B petitions to reach both the 65,000 regular H-1B cap and the 20,000-U.S. advanced degree exemption (master’s cap) for fiscal year 2027.

Because the statutory cap has been met, USCIS will not conduct an additional H-1B lottery this FY.

No Second H-1B Lottery for FY2027

In prior years, USCIS conducted additional H-1B selection rounds when an insufficient number of initially selected beneficiaries filed petitions to meet the annual cap. Those supplemental lotteries provided another opportunity for registrants not selected in the initial lottery.

This year, however, USCIS confirmed that it received enough petitions to satisfy both the regular cap and the master’s cap.

What This Means for Individuals Not Selected

Individuals whose registrations were not selected in the initial FY2027 lottery will not have another opportunity to be selected this FY. They will need to wait until the FY2028 H-1B registration period, which is expected to open in early 2027, provided they remain eligible and have a sponsoring employer prepared to submit a new registration.

The announcement also highlights the continued competitiveness of the H-1B program. Demand for H-1B visas continues to far exceed the number of visas available under the annual statutory cap.

Planning Ahead

Employers that were unable to secure H-1B selection should evaluate alternative immigration options as early as possible. Depending on the employee’s qualifications and circumstances, potential alternatives may include:

  • Cap-exempt H-1B employment through qualifying institutions.
  • O-1 classification for individuals with extraordinary ability.
  • L-1 intracompany transferee visas for multinational employers.
  • TN status for eligible Canadian and Mexican professionals.
  • E-3 visas for qualifying Australian nationals.
  • Other employment-based immigration options suited to the individual’s circumstances.

Employers may also wish to begin planning for the FY2028 H-1B registration season by assessing future hiring needs and identifying prospective candidates in advance of the registration period.

In a rebuke of recent USCIS immigration policies, a federal district court in Rhode Island vacated four agency policies that effectively suspended adjudication of thousands of immigration benefit requests. The June 5, 2026, decision in Dorcas International Institute of Rhode Island v. USCIS found that the policies exceeded USCIS’s statutory authority and violated the Administrative Procedure Act (APA). As a result, USCIS may no longer rely on these policies to halt adjudications of asylum applications, adjustment of status applications, employment authorization requests, naturalization applications, and other immigration benefits.

The ruling represents a judicial setback to the administration’s recent immigration enforcement initiatives and may serve as a reminder that, by law, immigration agencies cannot fundamentally alter congressionally created immigration processes through internal policy memoranda alone.

Which Policies Did the Court Strike Down?

The court invalidated four separate USCIS policies implemented in late 2025 and early 2026.

1. Benefits Hold Policy

      This policy directed USCIS officers to suspend adjudication of immigration benefits filed by nationals of countries subject to the administration’s travel restrictions. Affected benefits reportedly included adjustment of status applications, employment authorization documents (EADs), naturalization applications, travel documents, and other immigration benefits. The policy had notable consequences for nationals of countries that had been designated under the administration’s travel and visa restrictions. While the list evolved over time, impacted countries included Afghanistan, Myanmar (Burma), Chad, the Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen, among others. For some individuals from these countries, the impact extended well beyond international travel. Immigration benefits that often serve as a pathway to long-term stability in the United States — including adjustment of status, employment authorization, asylum, and naturalization — were effectively placed in limbo, creating uncertainty for families, employers, universities, healthcare institutions, and communities nationwide.

      2. Global Asylum Hold Policy

      USCIS also imposed a nationwide pause on adjudication of asylum and withholding applications, regardless of the applicant’s nationality.

      3. Comprehensive Re-Review Policy

      The agency instructed officers to revisit and re-review certain previously approved immigration benefits involving nationals of designated countries, creating uncertainty even for individuals who had already received favorable decisions.

      4. Country-Specific Factors Policy

      USCIS amended its guidance to instruct adjudicators to treat country-specific concerns associated with certain nationalities as a negative factor in discretionary immigration decisions.

      The court concluded that all four policies were contrary to law and arbitrary and capricious under the APA.

      Why This Decision Matters

      Though the decision directly affects applicants from the countries targeted by the travel restrictions, its importance extends beyond those individuals. At its core, the case addresses a fundamental question: Can USCIS simply stop adjudicating immigration benefits that Congress has authorized? The court ruled that the answer is no.

      Immigration statutes generally require USCIS to adjudicate applications and petitions filed under the immigration laws. While the agency has broad authority to approve or deny cases based on eligibility requirements, it does not have unlimited authority to place entire categories of applications into indefinite limbo based solely on an applicant’s nationality, country of birth, or generalized policy concerns. The court emphasized that applicants had followed the legal processes established by Congress and USCIS itself yet were left waiting indefinitely for decisions based on factors unrelated to their individual eligibility. In doing so, the decision reinforced a fundamental principle of administrative law: agencies must exercise the authority Congress granted them, but they may not create new barriers or suspend statutory processes absent clear legal authorization.

      Implications for Employers

      For employers, the practical consequences of these policies were notable. Foreign nationals whose adjustment applications, EAD renewals, or other immigration benefits were placed on hold often faced uncertainty regarding work authorization, international travel, onboarding, promotions, and long-term workforce planning. Universities, healthcare organizations, research institutions, technology companies, and multinational employers were impacted because many employees, researchers, physicians, and students originated from countries subject to the restrictions. If the court’s ruling remains in place, employers may begin to see movement on long-stalled applications and employment authorization requests. This could provide more predictability for workforce planning and immigration compliance.

      At the same time, employers should remain cautious. USCIS has not yet issued comprehensive guidance regarding implementation of the decision, and the government may seek a stay pending appeal. As with many major immigration rulings, the litigation may continue even after the district court’s decision.

      An Important Limitation: The Decision Does Not Eliminate Travel Restrictions or Guarantee Visa Issuance Abroad

      It is important to understand what the decision does — and does not — do.

      The policies the court vacated were USCIS adjudication policies. They governed how USCIS processed applications and petitions within its jurisdiction, including adjustment of status applications, employment authorization requests, naturalization applications, asylum applications, and other immigration benefits. The decision does not invalidate the underlying travel restrictions themselves, nor does it directly affect visa issuance decisions made by the U.S. Department of State at consulates and embassies abroad. As a result, individuals pursuing adjustment of status in the United States may see the most immediate benefit from the ruling, as USCIS should now resume adjudicating applications that may have been placed on hold under the challenged policies.

      For individuals pursuing immigrant visa processing abroad, the impact may be more limited. If USCIS had delayed adjudication of an underlying petition because the beneficiary was from one of the affected countries, that obstacle should now be removed. However, once a case reaches the National Visa Center and a U.S. consulate, applicants may still encounter travel restrictions, enhanced vetting requirements, administrative processing, or other visa issuance limitations arising from separate presidential actions or Department of State policies. In other words, the court’s decision restores USCIS’s obligation to adjudicate immigration benefits, but it does not guarantee that a visa will be issued overseas or eliminate other restrictions that may apply to nationals of designated countries.

      What Happens Next?

      The decision vacated the policies themselves rather than merely prohibiting their enforcement against specific plaintiffs. That distinction is important. Vacatur under the APA generally means the challenged agency actions are set aside and may no longer be relied upon while the decision remains in effect. As a result, affected applications should return to normal adjudication processes unless a higher court intervenes.

      However, litigation may not be over. The government may appeal the decision and seek a stay that would temporarily restore the policies while appellate review proceeds. USCIS may also explore alternative approaches to implementing its national security objectives that attempt to address the legal deficiencies identified by the court.

      When USCIS issued its May 21 memorandum emphasizing consular processing as the preferred pathway for many intending immigrants seeking permanent residence, the immigration community began raising questions. Would adjustment of status (AOS) applications become more difficult to approve? Would USCIS begin issuing widespread requests for evidence (RFEs) challenging applicants’ eligibility to adjust status in the United States? Would employment authorization and travel documents be affected? Would foreign nationals already pursuing AOS face increased scrutiny at interviews?

      Now two weeks later, while it remains too early to draw definitive conclusions, implementation so far has been more measured than many initially anticipated. As is often the case with major immigration policy announcements, the practical impact of a memorandum depends not only on the language of the policy itself but also on how adjudicators interpret and apply that guidance in individual cases. Patterns are beginning to emerge, though the type of widespread disruption some stakeholders anticipated has not yet materialized. For a discussion of the memorandum, stream GT’s Immigration Insights Podcast Episode 25.

      A Brief Reminder: What Did the Memorandum Do?

      The memorandum signaled USCIS’s preference that many intending immigrants pursue immigrant visa processing abroad through U.S. consulates rather than AOS from within the United States. For decades, AOS has served as a critical pathway allowing eligible foreign nationals already present in the United States to complete the permanent residence process without departing the country. The memorandum raised concerns because it appeared to encourage greater scrutiny of adjustment filings and potentially shift adjudicative discretion toward consular processing in certain circumstances. Because AOS offers significant practical advantages – including the ability to remain in the United States while a case is pending, obtain employment authorization, and avoid many uncertainties associated with overseas visa processing – the memorandum generated concern among employers, foreign nationals, and immigration practitioners.

      What Are We Seeing So Far?

      While every case is unique, several trends have emerged during the first two weeks following issuance of the memorandum.[1]

      Adjustment Applications Continue to Be Approved

      Many AOS applications filed before the memorandum was issued continue to be approved, including for applicants in valid F-1, H-1B, and L-1 status. To date, there has been no indication of a blanket slowdown or freeze affecting adjustment applications that were already pending when the memorandum was released.

      Employment Authorization and Travel Documents Continue Moving Forward

      There are continued approvals of employment authorization documents (EADs) and advance parole (AP) applications filed in connection with AOS cases.

      This is significant for applicants relying on adjustment-based work authorization or travel permission while awaiting a decision on their green card applications.

      Adjustment Interviews Continue

      Adjustment interviews at local USCIS field offices are continuing without apparent interruption. There is variation in how officers appear to be approaching the memorandum. In some interviews, applicants have reported that the memorandum was not discussed at all, with officers focusing on traditional adjustment issues such as admissibility, maintenance of status, employment history, family relationships, and application accuracy. In other interviews, applicants have reported being asked why they chose AOS rather than consular processing, a line of questioning consistent with the language and policy objectives reflected in the memorandum. At this stage, these questions may be exploratory rather than outcome-determinative. The fact that some officers are raising the issue suggests that field offices are aware of the guidance and may be incorporating it into interview practices.

      Limited Reports of Requests for Evidence

      One concern following the memorandum was whether USCIS would begin issuing RFEs requiring applicants to justify why AOS is appropriate in lieu of consular processing. While practitioners around the country have reported receiving such RFEs in some cases, our office has not yet received any RFEs specifically seeking that explanation. The relatively short period since the memorandum’s issuance makes it difficult to assess whether such requests will become more common. Historically, USCIS implementation of major policy changes often varies by field office, service center, and adjudicator before more consistent practices emerge. As additional cases move through the system, we may gain greater insight into whether these RFEs represent isolated examples or the beginning of a broader adjudication trend.

      No Significant Travel Issues Reported

      Travel concerns were another area of uncertainty following the memorandum. Many applicants questioned whether travel on AP or travel in H-1B and L-1 status could become more complicated if USCIS adopted a stronger preference for consular processing. To date, we have not received reports from clients indicating unusual travel-related complications attributable to the memorandum.

      A Growing Interest in Preserving Consular Processing Options

      One practical response is increased interest in maintaining flexibility. Some individuals with approved immigrant petitions are electing to file Form I-824, Application for Action on an Approved Application or Petition, to preserve the possibility of consular processing should they decide – or be required – to pursue that route in the future. While filing Form I-824 is not necessary or advisable in every case, it reflects a broader trend among applicants seeking to keep multiple options available while the long-term impact of the memorandum becomes clearer. For certain individuals, particularly those with international travel obligations, complex immigration histories, or concerns about future policy developments, preserving optionality may be a prudent strategic consideration.

      Considerations for Employers and Foreign Nationals

      The memorandum is significant, but the implementation data available today does not support the conclusion that AOS is no longer viable or that applicants should automatically abandon pending or planned adjustment filings in favor of consular processing.

      Each case warrants careful evaluation on its own merits. Factors such as immigration status, travel needs, country of citizenship, visa availability, processing times, family circumstances, and long-term immigration objectives should continue to drive strategic decision-making. For many applicants, AOS may remain the preferred and most practical path to permanent residence. For others, preserving consular processing as a backup option may provide additional flexibility. Immigration strategy is most effective when tailored to the individual circumstances of the applicant.

      Looking Ahead

      The first two weeks following the memorandum have provided some initial data points, but many questions remain unanswered. As additional cases move through interviews and adjudication, we expect to gain greater visibility into how field offices and service centers interpret the guidance. There may also be further policy clarification from USCIS, additional stakeholder engagement, new adjudication trends, and potentially litigation that could affect implementation. For now, AOS cases continue to move forward – applications are being approved, interviews are being conducted, employment authorization and travel documents continue to be issued.

      [1] Disclaimer: The observations discussed in this blog post are based on our firm’s cases and discussions with colleagues throughout the immigration bar during the first two weeks following issuance of the memorandum. These observations are anecdotal in nature, may not be representative of all USCIS offices, adjudicators, or case types, and should not be viewed as predictive of any individual case outcome.

      The EB-2 National Interest Waiver and EB-1A Extraordinary Ability categories remain two well-established paths to a green card. They allow professionals to bypass the labor certification process and, in the case of EB-1A, to self-petition without a job offer. That has not changed.

      What has changed is the level of preparation these cases now require. USCIS Form I-140 adjudication data through the fourth quarter of FY2025 indicates that adjudicators are scrutinizing these petitions more closely than in prior years. For petitioners, the data is clarifying rather than discouraging: strong, well-documented cases continue to be approved at high rates. The data confirms that how a case is framed and documented has a meaningful effect on outcomes.

      What the Numbers Show

      Approval rates in the NIW category have declined from their pandemic-era peak. USCIS approved roughly 96% of NIW petitions in FY2022, a figure inflated in part by a much smaller pool of filings. As the category grew in popularity, the approval rate moved to approximately 80% in FY2023, roughly 71% in FY2024, and 55.2% for full FY2025, with a lower fourth quarter as the agency worked through a record backlog of filings. See USCIS Immigration and Citizenship Data.

      EB-2 NIW Approval RateBy Fiscal Year
      FY2022~96%
      FY2023~80%
      FY2024~71%
      FY2025 (full year)55.2%
      FY2025 Q435.7%

      EB-1A approval rates have remained comparatively stable. After several years in a 70–75% range, the category finished FY2025 at 66.9%, meaning approximately two of every three petitions were approved. The O-1 nonimmigrant extraordinary ability classification remained above 90% throughout FY2025.

      Category (FY2025)Approval RateQ4 FY2025
      EB-2 NIW (immigrant)55.2%35.7%
      EB-1A (immigrant)66.9%~53%
      O-1 (nonimmigrant)>90%>90%

      What Is Driving the Trend

      In NIW cases, USCIS is applying the Matter of Dhanasar framework with greater rigor, placing weight on measurable, demonstrated U.S. impact rather than forward-looking potential or broad sector-wide claims. Healthcare, core STEM, and national-security-adjacent fields continue to fare well, and well-framed cases in other fields are approved regularly. Contributions that demonstrably extend beyond a single employer, supported by concrete evidence, are better positioned under current adjudication practice.

      In EB-1A cases, adjudicators continue to apply the two-step “final merits” analysis, treating the three-criteria threshold as a starting point rather than a conclusion. That approach is now being tested in litigation. In Mukherji v. Miller (D. Neb. Jan. 28, 2026), a federal district court questioned whether USCIS properly adopted the two-step framework and ordered a petition approved after the agency conceded the petitioner met five of the 10 criteria. The decision is limited to that case and USCIS has not changed its guidance, but it represents a notable development and may provide an additional argument where a strong record has been denied on vague or conclusory reasoning.

      The shift in approval rates does not reflect the exclusion of borderline filings. It signals that the quality and specificity of the petition (the framing of the endeavor, the independence of the evidence, the clarity of the U.S. benefit) are factors in adjudication outcomes.

      What It Means for Petitioners

      For an NIW, the proposed endeavor should be framed narrowly and tied concretely to a specific, demonstrated U.S. benefit rather than a broad field or job title and paired with evidence that the petitioner’s work has already produced impact beyond a single employer. That includes adoption or citation of the work by others, deployment at scale, measurable outcomes, government or industry uptake, and independent letters from qualified individuals that address specific contributions rather than offering general praise.

      For an EB-1A, each claimed criterion should be corroborated with objective, third-party evidence. The record should articulate a consistent narrative of sustained national or international acclaim, rather than relying on meeting the three-criterion threshold alone. In both categories, independent corroboration, verifiable metrics, and a clearly articulated U.S. benefit are factors that distinguish approved petitions.

      A few practical points for those weighing their options:

      Individuals who may qualify for both EB-1A and NIW should consider filing both petitions concurrently. This approach creates multiple opportunities for approval and preserves flexibility as cases progress. If both are approved, the beneficiary can pursue permanent residence through whichever category offers more favorable visa availability and processing timelines. This can be particularly relevant for individuals born in countries subject to immigrant visa backlogs, where movement in the Visa Bulletin may differ between the EB-1 and EB-2 categories.

      Filing both petitions also allows applicants to secure a priority date as early as possible while accounting for uncertainty in either adjudication. Where a candidate is employer-sponsored and the national interest or extraordinary ability case is substantial but not conclusive, a PERM-based EB-2 or EB-3 case may serve as a parallel or alternative path — typically slower, but a reliable route for the right candidate profile.

      For self-petitioners whose work does not fit a standard job description, the NIW and EB-1A categories remain available but often the most appropriate fit. In those situations, the practical approach is to develop the strongest possible case and, where appropriate, pursue multiple pathways simultaneously.

      Conclusion

      The EB-2 NIW and EB-1A categories remain viable pathways to permanent residence for highly accomplished individuals. Well-documented cases continue to be approved, and these categories remain relevant for individuals whose work delivers significant value to the United States. Recent data does not foreclose NIW or EB-1A petitions; it reinforces the importance of selecting the appropriate category, presenting a clear and credible record of achievement, and documenting the U.S. benefit with specificity.

      In this episode of the Greenberg Traurig’s Immigration Insights Podcast, host Kate Kalmykov is joined by GT colleagues Jen Hermansky and Michael Eisenstadt to analyze the USCIS Policy Memorandum issued on May 21, 2026, which represents a shift in how the agency intends to handle adjustment of status (AOS)—the process by which foreign nationals in the United States apply for a green card without leaving the country.

      The memo reframes AOS as an “extraordinary benefit” subject to broad agency discretion, suggesting that most applicants should instead pursue consular processing at a U.S. embassy or consulate abroad. The panelists question whether this shift is operationally feasible given consulate understaffing, existing visa processing backlogs, and the ongoing pause on immigrant visa processing for nationals of 75 countries.

      Their discussion covers the memo’s discretionary balancing test, its implications for a wide range of visa holders, and the tension between the memo’s guidance and existing statutory provisions that already permit AOS filings in many of the situations the memo treats as negative factors.

      They share practical guidance, including maintaining underlying nonimmigrant status, exercising caution around international travel for advance parole holders, and building documentation of economic and national interest arguments in support of pending or anticipated AOS filings.