You Have an EB-1 or EB-2/NIW RFE? Do Not Despair

What has changed recently is the environment around that RFE, and it is worth understanding before deciding how to respond.

Key Statutes

• RFE authority: 8 CFR § 103.2(b)(8)
• USCIS evidence and RFE/NOID standards: USCIS Policy Manual, Vol. 1, Part E, Ch. 6
• Updated evidence and denial-without-RFE guidance: USCIS Policy Alert PA-2026-05 (Aug. 5, 2026)
• EB-1A, Extraordinary Ability: INA § 203(b)(1)(A); 8 CFR § 204.5(h)
• EB-1A evidentiary framework: Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)
• EB-2 National Interest Waiver: INA § 203(b)(2)(B); Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)

What an RFE Actually Is

An RFE is USCIS's formal request, issued under 8 CFR § 103.2(b)(8), for additional evidence needed to establish eligibility for the benefit requested. It is not a decision. It is a pause in the decision-making process, with the officer telling you specifically what is missing or unpersuasive so that you have a defined opportunity to fix it before a final decision gets made. For EB-1A cases, an RFE commonly targets either the regulatory criteria stage, questioning whether specific evidence actually satisfies a claimed criterion under 8 CFR § 204.5(h)(3), or the broader final merits stage, questioning whether the full record shows sustained acclaim at the top of the field. For EB-2/NIW cases, RFEs most often focus on the Matter of Dhanasar framework: whether the proposed endeavor has substantial merit and genuinely national importance, whether the petitioner is well positioned to advance it, or whether the balance of factors favors waiving the labor certification requirement.

None of that means the case is weak. It often means the opposite, that the officer sees enough in the filing to engage with it seriously rather than reject it outright.

Why the Current Environment Actually Makes an RFE More Meaningful

On August 5, 2026, USCIS issued Policy Alert PA-2026-05, substantially revising the Policy Manual provisions governing initial evidence, RFEs, and Notices of Intent to Deny. The most consequential change is straightforward: USCIS officers now have restored discretion to deny a petition outright, without ever issuing an RFE or NOID, if the filing is missing required initial evidence or otherwise fails to establish eligibility on its face. USCIS has stated this change is intended to reduce frivolous, placeholder, or substantially incomplete filings that previously used the RFE process as a chance to submit evidence that should have accompanied the original petition.

That change reframes what it means to actually receive an RFE today. Under the prior approach, USCIS leaned toward issuing an RFE whenever a filing was arguably incomplete, effectively treating the RFE as a routine second chance built into the process. Under the current guidance, an officer can simply deny a deficient petition instead. A petitioner who receives an RFE rather than an outright denial has, in a meaningful sense, already cleared a threshold: the officer found enough in the initial filing to warrant engaging further, rather than concluding the case wasn't worth pursuing at all. That doesn't guarantee the outcome, but it is a real, if quiet, signal worth understanding rather than a reason for panic.

The Deadline Has Gotten Less Forgiving

The same August 2026 policy update tightened response timing in ways every EB-1A and NIW petitioner needs to know before assuming they have the maximum time to respond. Historically, USCIS routinely gave petitioners the full 12 weeks, 84 days, to respond to an RFE, with an additional 3 days added when the notice was served by mail, producing the widely cited 87-day window. Under the updated guidance, that maximum is no longer the default. Regulations still permit up to 12 weeks, but officers are no longer instructed to default to it, and case-specific deadlines as short as 30 days are now expressly permitted. NOID response periods, similarly, may now be set at less than 30 days. USCIS has also eliminated the additional 14 days it previously granted for notices mailed to addresses outside the United States, and no additional time beyond the deadline stated on the notice is available.

The practical consequence is simple and important: read the actual deadline printed on your specific RFE notice, do not assume it matches what a friend's petition received or what older articles describe, and treat that date as fixed. USCIS requires physical, complete receipt of the response by the stated deadline, not merely that it was mailed by then.

Common Reasons EB-1A Petitions Draw an RFE

A few patterns show up repeatedly. Evidence submitted for a specific criterion, a media article, a judging role, a claimed original contribution, sometimes does not clearly connect to the specific regulatory language the criterion requires, leaving the officer unable to confirm the criterion is actually met rather than merely plausible. Letters from experts are sometimes too generic, praising the petitioner in broad terms without concretely explaining the significance of specific contributions or the petitioner's standing relative to others in the field. And even where three or more criteria are facially satisfied, officers frequently issue an RFE, rather than an outright denial, seeking a more developed record before making the separate final merits determination on whether the petitioner has sustained national or international acclaim.

Common Reasons EB-2/NIW Petitions Draw an RFE

For NIW cases, the most frequent RFE target is the first Dhanasar prong: whether the proposed endeavor has genuinely national, rather than merely local or employer-specific, importance. USCIS Policy Alert PA-2025-03 sharpened this scrutiny considerably, making clear that benefits confined to a single employer, even a large one, do not establish national importance on their own. RFEs on this point typically ask petitioners to document impact, adoption, or significance reaching beyond their own employer or immediate professional circle. The second prong, whether the petitioner is well positioned to advance the endeavor, also draws RFEs when the connection between a petitioner's specific qualifications and the proposed endeavor is not made explicit, particularly where the petitioner's current job differs from the field of the endeavor.

How to Actually Respond

The single most important discipline in any RFE response is structure. USCIS lists specific concerns in the notice, and the response should address each one directly, in the same order, clearly labeled, rather than folding several points into a general narrative or skipping a concern that seems minor. An officer reviewing a response under time pressure needs to be able to match each new piece of evidence to the specific question it answers.

Beyond structure, the strongest responses share a few traits. New evidence should be independent wherever possible, meaning it comes from people or sources with no financial or professional stake in the petitioner's success, since independent corroboration answers exactly the credibility concern an RFE is usually probing. Expert letters submitted in response to an RFE should be specific rather than laudatory, addressing the exact regulatory language or Dhanasar factor at issue and explaining, with concrete detail, why the petitioner's work satisfies it. Where the RFE raises a final merits or national importance concern rather than a narrow criterion question, the response benefits from a cover brief that ties the individual pieces of evidence together into a coherent argument, rather than leaving the officer to assemble that argument from a stack of exhibits alone. And nothing in a response should overstate what the evidence shows. An officer who catches an exaggerated claim in one part of a response reasonably scrutinizes the rest of it more skeptically.

What Not to Do

Do not miss the deadline. Given the current guidance eliminating extra mailing time for international notices and permitting shortened response windows, there is meaningfully less room for error than there used to be, and a late response is treated as an abandoned petition. Do not submit a response that restates the original filing without adding anything genuinely new or responsive to the specific concern raised. Do not assume silence on a particular criterion or point in the RFE means it is fine to ignore; if the notice raises five distinct concerns, the response needs five distinct answers. And do not treat an RFE as an opportunity to introduce an entirely different theory of the case at the last minute; a response works best when it reinforces and strengthens the case already made, not when it tries to rebuild the case around new ground for the first time under a compressed deadline.

When to Bring in an Attorney

Petitioners sometimes assume that if they wrote the original petition themselves, they should be able to handle the RFE the same way. An RFE is a different task than an initial filing. It requires reading the officer's specific concerns precisely, identifying what kind of evidence actually answers each one, sometimes securing new letters or documentation on a tight timeline, and organizing all of it into a response that is persuasive rather than merely voluminous. Given how much less forgiving the current deadline environment is, and how directly a denial-without-RFE policy now underscores the importance of getting a filing right, engaging an attorney at the RFE stage, even for a petitioner who filed independently, is often the difference between a response that closes the gap and one that simply repeats the original filing's weaknesses in more pages.

FAQ

Does receiving an RFE mean my case is likely to be denied?
No. An RFE means USCIS needs more evidence before deciding, not that it has decided against you. A substantial share of approved EB-1A and NIW petitions passed through an RFE first.

How much time do I actually have to respond?
Whatever deadline is printed on your specific notice. Since the August 2026 policy update, USCIS is no longer defaulting to the maximum 12-week period, and response windows as short as 30 days are now permitted. Do not assume you have 87 days without confirming it on your own notice.

Can USCIS deny my petition without ever issuing an RFE?
Yes, under the updated guidance effective August 5, 2026, officers have discretion to deny a petition outright if required initial evidence is missing or eligibility isn't established, without first issuing an RFE or NOID.

Can I get an extension on my RFE deadline?
No. USCIS does not grant extensions beyond the deadline stated in the notice, and the current policy update removed additional time previously available for notices mailed outside the United States.

What happens if I miss the RFE deadline?
The petition is generally treated as abandoned and denied on that basis, without the merits of the underlying case being addressed.

Should I submit everything I have, even evidence not directly requested?
No. A response should be organized around the specific concerns raised in the RFE. Submitting large amounts of unrelated or loosely related material can dilute a response rather than strengthen it, and it makes it harder for the officer to see how the response actually answers the specific questions asked.

What This Means for You

An RFE is a request for more information, not a verdict, and it remains one of the more common steps in a successful EB-1A or EB-2/NIW case. What has changed is the margin for error around it: USCIS can now deny incomplete filings without offering that opportunity at all, and the response window, once when it is granted, can be shorter and less flexible than it used to be. Treat the notice's specific deadline and specific concerns as the entire roadmap for your response, answer each one directly with independent, well-organized evidence, and move quickly rather than assuming the process will bend to accommodate delay.

If you've received an EB-1A or EB-2/NIW RFE and want help building a response that directly answers USCIS's concerns, contact the Law Offices of Shawn S. Sedaghat at (818) 382-3333.

This article discusses general legal principles. It does not describe any specific client or matter. Nothing here constitutes legal advice or creates an attorney-client relationship. USCIS policy, evidentiary standards, and RFE response timeframes change; confirm current requirements, including the specific deadline on your own notice, before relying on this article.

Shawn S. Sedaghat is an immigration attorney at Law Offices of Shawn S. Sedaghat focused on deportation defense, immigration appeals, asylum, family-based immigration, and employment-based immigration. He is the firm's founder and principal attorney and has more than 30 years of experience handling U.S. immigration matters.