At Civitas, prospective investors regularly ask what happens if U.S. Citizenship and Immigration Services (USCIS) has questions about their petition. The familiar answer has long been that the agency would issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), giving the investor a chance to respond. A policy change USCIS announced on August 5, 2026, makes that assumption unsafe, and it arrives during the busiest filing season the EB-5 program has seen in years.
Policy Alert PA-2026-05, titled Evidence, Requests for Evidence, and Notices of Intent to Deny, updates Volume 1 of the USCIS Policy Manual. Its premise is a rule that has long been on the books: “The burden is on the requestor to establish that he or she is eligible for the requested benefit at the time of filing the benefit request and that he or she continues to be eligible through adjudication.” What changed is the consequence of falling short of it. USCIS found that its prior guidance, which instructed officers to issue an RFE or a NOID before denying a deficient filing, “created opportunities for frivolous or substantially incomplete filings.” The agency is therefore acting “to restore USCIS officers’ full discretion to deny such benefit requests without first issuing an RFE or NOID, as allowed by the regulations.”
The guidance is effective immediately and applies to benefit requests “pending or filed on or after” August 5, 2026, except where regulations or other USCIS policies provide otherwise.
What This Means for EB-5 Investors
EB-5 petitions are document-intensive by nature. An I-526E petition filing may call for extensive documentation establishing the lawful source and path of funds, drawn from bank records, tax filings, employment and compensation records, property transactions, gifts, loans, business proceeds, and other relevant evidence. Under the prior approach, an ambiguity or a missing document in that record often meant an RFE and a delay. Under the current policy, it may instead mean a denial. A NOID may still be appropriate under 8 CFR 103.2(b)(8)(iii), which addresses filings where the required initial evidence was submitted but does not establish eligibility; the new discretion to deny outright is aimed squarely at records that are incomplete at filing.
Two further changes deserve attention from investors abroad. First, the standard 12-week RFE response window is gone. 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,” so a shorter deadline is now possible. USCIS has also eliminated the extra 14 days it previously granted for notices mailed outside the United States, leaving only the 3 days the regulations allow for service by mail. For an investor gathering certified translations, foreign bank confirmations, or older tax records from another jurisdiction, that compression is significant. Second, USCIS will now treat any response to an RFE or NOID, “even if the evidence only partially responds,” as a request for a decision on the record as it stands. A partial answer does not buy time.
The timing also matters. Many investors are working to file ahead of the September 30, 2026 grandfathering deadline, and the two pressures pull in opposite directions: filing quickly to meet a date, and filing a record complete enough to withstand an adjudication that may offer no second round. USCIS addressed this dynamic directly, describing the update as discouraging “unfair advantages accruing to some benefit requestors who submit incomplete benefit requests while others wait to obtain all necessary evidence ensuring that priority dates and other benefits are accorded fairly.” A denied EB-5 petition does not preserve a filing date. That alone is reason to treat completeness rather than speed as the governing priority in the weeks ahead.
Preparing a Filing That Stands on Its Own
The practical response is to treat the initial filing as the only opportunity to establish eligibility. That means working with experienced immigration attorney to identify every item of required initial evidence before submission, reconciling inconsistencies and gaps in the source and path of funds rather than leaving them to be explained later, and developing legal arguments before filing instead of reserving them for an RFE or NOID response. It also means responding promptly to immigration attorney’s document requests, since international records, older tax filings, and business ownership histories can take weeks to assemble. Above all, it argues against filing primarily to meet a deadline while key evidence remains outstanding.
EB-5 fund issuers, for their part, need to stay on top of the immigration risks involved in their offerings, as a change of this kind bears on project-level documentation and investor outcomes alike.
If you have questions about the EB-5 program, contact our Investor Relations Team to learn more or to discuss your options with an experienced advisor.
This article is provided for informational purposes only and reflects conditions as of August 2026. It does not constitute legal advice. Immigration timelines and program details are subject to change. Please consult a qualified immigration attorney for advice specific to your circumstances.
