Every year brings its own spike in Requests for Evidence on one issue or another. Sometimes the cause is a government edict or a formal change in policy. Sometimes it is a new round of officer training, and sometimes it is nothing more than an internal audit to confirm that the mice have not been playing while the cat was away. Whatever the cause, the pattern is consistent enough that employers and beneficiaries can plan around it. The past several weeks have produced a recognizable cluster of issues on the I-140 side and, for reasons that have far more to do with arithmetic than with policy, an unusually quiet stretch on the I-485 side.

I-140: Experience Letters and the Full-Time Question

Last year we saw a brief run of Requests for Evidence questioning whether a beneficiary’s documented prior experience was full-time or part-time, and that run appears to have returned. These RFEs are not issued because the letters fail to say what the regulation requires them to say. They are issued because the letters do not state, in words, whether the employment was full-time.

The regulatory requirement is narrower than the RFEs suggest. Under 8 CFR 204.5(g)(1), evidence relating to qualifying experience must be in the form of letters from current or former employers giving the name, address, and title of the writer and a specific description of the duties performed, and for skilled workers and professionals 8 CFR 204.5(l)(3)(ii) requires letters documenting the requisite training or experience. Neither provision enumerates a full-time or part-time designation among the required contents.

The agency’s underlying interest, however, is not frivolous, and it is worth understanding rather than simply resisting. Qualifying experience is measured against the requirements stated on the certified ETA Form 9089, and a stretch of part-time work does not translate into an equivalent stretch of qualifying full-time experience. An officer who cannot determine from the face of the letter how to count the months has a defensible reason to ask. The practical answer is therefore to foreclose the question rather than to litigate it. Experience letters should state the dates of employment, state plainly that the position was full-time or identify the hours worked per week, and describe the duties in terms detailed enough to map onto the certified job requirements. Where a former employer has dissolved or refuses to sign, 8 CFR 103.2(b)(2) permits secondary evidence, and an affidavit from a former colleague with personal knowledge, supported by pay records or tax documents, is a far better posture than a letter that invites the question in the first place.

I-140: DS-160 “Discrepancies” Measured Against the PERM

A second and considerably more aggravating trend involves the DS-160. We have seen an uptick in Requests for Evidence in which USCIS locates information on a previously submitted nonimmigrant visa application and asks the petitioner to reconcile those earlier statements against the contemporary record. The usual version runs like this: the beneficiary listed Company A for a defined period on a DS-160 filed years ago, that employment does not appear on the certified ETA Form 9089, and the officer wants to know why. The inverse version also appears, in which experience claimed on the PERM never showed up on any DS-160 and the officer treats the omission as a contradiction.

Both versions rest on a mistaken premise about what the DS-160 is and what it is capable of capturing. It is a nonimmigrant visa application. It asks for employment history over the preceding five years, and it does so through a fixed set of fields with limited entries and essentially no room for narrative explanation. The ETA Form 9089, by contrast, is concerned exclusively with the experience relevant to the offered position and the requirements certified by the Department of Labor. An employment period that appears on a DS-160 but not on the 9089 is therefore entirely expected: the position was not relevant, or it was not the experience being used to qualify. The inverse is equally unremarkable. Experience that predates the five-year window, or that could not be entered because the form’s structure did not accommodate it, never had a place on the DS-160 at all. In substance, the agency is expressing confusion that an applicant failed to fully detail a work history in a portal that was never designed to let them do so.

That said, the right response to these RFEs is to reconcile the record affirmatively rather than dismissively. Inquiries of this kind sit uncomfortably close to the territory governed by INA § 212(a)(6)(C)(i), and a response that treats the question as beneath answering gives an officer room to conclude that the discrepancy was never explained at all. A short, documented timeline accounting for each period of employment, paired with a plain explanation of what each form was asking for and over what look-back period, resolves these RFEs cleanly and closes the issue for the balance of the case.

I-140: Ability to Pay and the Extended Tax Deadline

The third trend is the most predictable, because it is driven by the calendar. Under 8 CFR 204.5(g)(2), a petitioner filing for an employment-based immigrant must demonstrate the continuing ability to pay the proffered wage from the priority date onward, and that showing must be made through annual reports, federal tax returns, or audited financial statements. Petitioners employing 100 or more workers may instead submit a statement from a financial officer.

For companies that filed for an extension on their 2025 returns, the finalization deadline is upon us. The extended deadline for calendar-year partnerships and S corporations falls on September 15, 2026, with calendar-year C corporations following on October 15, 2026. USCIS is well aware of that schedule, and we expect a corresponding increase in Requests for Evidence seeking updated, finalized 2025 returns through the remainder of the quarter. Employers should have those documents ready to produce on short notice. It is also worth remembering that ability to pay is a totality analysis rather than a mechanical test; net income and net current assets are where the inquiry starts, not where it necessarily ends, and the reasoning of Matter of Sonegawa, 12 I&N Dec. 612 (Reg’l Comm’r 1967), remains available to employers whose figures in a single year do not tell the whole story.

I-485: A Quiet Stretch, and Why

On the adjustment of status side, the news is comparatively good. Requests for Evidence have been limited over the past several weeks. The likeliest explanation is not a change in agency posture but the ordinary arithmetic of the federal fiscal year. Immigrant visa numbers are allocated annually under INA § 203(b); the Department of State calculated a worldwide employment-based limit of 186,317 for Fiscal Year 2026, and that year closes on September 30. As categories approach or reach their annual and per-country limits, adjudications slow and, in some categories, effectively pause. Fewer adjudications produce fewer Requests for Evidence. Numbers replenish on October 1, and the pace typically recovers with them.

This is a seasonal slowdown rather than a freeze. We are still seeing interviews scheduled and I-485s approved. Applicants who have waited through the summer should read the current quiet as a function of the calendar rather than as a signal about their own case.

I-485: The New Policy on Denials Without an RFE or NOID

The question we have fielded most often from clients in recent weeks concerns the new USCIS guidance permitting denials without a Request for Evidence or a Notice of Intent to Deny. On August 5, 2026, USCIS updated Volume 1, Part E of the Policy Manual and announced that it had restored to officers full discretion to deny a benefit request without first issuing an RFE or a NOID. The regulation itself did not change. 8 CFR 103.2(b)(8) has long given officers that discretion; what changed was the internal instruction that had directed officers to ask before denying. The agency states that the guidance is effective immediately and applies to requests pending or filed on or after August 5, 2026, which means it reaches cases already sitting in the queue and not only cases filed going forward.

Our general assessment for our own clients is that the practical exposure is low, and the reason is straightforward. The denial this policy most plainly contemplates is the denial of a filing that is missing required initial evidence altogether: no civil documents, no birth certificate, no marriage certificate, no I-140 approval or receipt notice, no medical examination. Those are basic documents, our clients already have them, and we submit them. Where the documents are in the file, the most likely application of this policy never reaches the case.

For more information, or for a detailed conversation regarding a Request for Evidence in your I-140 or I-485 matter or other issues arising during your permanent residency process, please schedule a time to speak here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effectively.

We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089) and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.