I-140 and I-485 RFE Trends in 2026: What Green Card Applicants Should Know

by Niloofar Rahimi Zadeh updated on Sep 17, 2026 05:03:39 PM

Employment-based green card applicants are seeing several recurring Request for Evidence (RFE) issues involving Form I-140, while I-485 RFEs have been comparatively quieter heading into the end of fiscal year 2026.

In a September 15 update, immigration law firm Reddy Neumann Brown PC reported three notable I-140 RFE patterns from cases handled in August and September: questions about whether prior employment was full-time, comparisons between DS-160 visa applications and PERM employment histories, and employer ability-to-pay evidence. These observations reflect the firm's recent case experience rather than nationwide USCIS statistics.

For international students and professionals moving from F-1, OPT, STEM OPT, or H-1B status into an employment-based green card process, the trend highlights the importance of keeping employment records consistent and making the initial filing as complete as possible.

I-140 RFEs Are Focusing on Employment History and Employer Evidence

One issue reported in recent I-140 cases involves experience letters that do not clearly state whether a previous position was full-time or part-time.

USCIS regulations require qualifying experience to be supported by letters from current or former employers that identify the writer and provide a specific description of the duties performed. In practice, however, USCIS may also question how much qualifying experience should be counted when the letter does not make the employee's work schedule clear.

For employees whose previous experience is being used to satisfy the requirements of a PERM-based EB-2 or EB-3 petition, an experience letter may therefore be stronger when it clearly includes:

dates of employment;
the position and duties;
whether the employment was full-time; or
the approximate number of hours worked per week.

Another recent RFE issue involves USCIS comparing employment information on older DS-160 nonimmigrant visa applications with the employment history used in a PERM or I-140 case.

The records do not necessarily contain identical information. A DS-160 generally asks about employment history within a specified period, while the PERM process focuses on the experience relevant to qualifying for the sponsored position. As a result, an employer may appear on one record without appearing on the other.

A difference is not automatically evidence of a problem, but applicants may need to explain why the records differ if USCIS raises the issue.

Ability-to-Pay RFEs May Increase as 2025 Tax Returns Become Available

USCIS also requires an employer sponsoring certain employment-based immigrant petitions to demonstrate its continuing ability to pay the offered wage from the petition's priority date.

Reddy Neumann Brown PC expects additional ability-to-pay RFEs as employers that extended their 2025 federal tax filings complete their returns. Calendar-year S corporations and partnerships with valid extensions had a September 15, 2026 filing deadline. The IRS calendar confirms those extended deadlines.

For employers, this means USCIS may request updated financial documents when an I-140 has been pending while newer tax information becomes available.

Evidence used in an ability-to-pay review can include federal tax returns, annual reports, or audited financial statements, depending on the petitioner's circumstances.

Why I-485 RFEs Have Been Quieter Near the End of FY 2026

The recent decline in I-485 RFEs should not necessarily be interpreted as USCIS reducing scrutiny of adjustment-of-status applications.

The Department of State set the worldwide employment-based immigrant visa limit for fiscal year 2026 at 186,317. The fiscal year ends September 30, and visa availability can become increasingly constrained as annual, category, and per-country limits are reached.

The September 2026 Visa Bulletin specifically warned that some employment-based categories could retrogress or become unavailable before the fiscal year's end if demand reached the applicable limits.

That can reduce the number of employment-based I-485 cases USCIS is able to finalize near the end of the fiscal year, which may also contribute to fewer RFEs being issued during that period.

Visa numbers generally become available under a new fiscal-year allocation beginning October 1. Applicants with pending I-485 cases should therefore not assume that a period without an RFE indicates either approval or a problem with their individual case.

USCIS Can Deny Some Cases Without First Issuing an RFE

A separate USCIS policy change makes the quality of the initial filing particularly important.

On August 5, 2026, USCIS revised its evidentiary guidance and restored broader discretion for officers to deny certain immigration benefit requests without first issuing an RFE or Notice of Intent to Deny when the evidence in the record does not establish eligibility and another notice is not legally required.

Current USCIS guidance confirms that officers may either request additional evidence or deny an application when required evidence is insufficient, depending on the circumstances and applicable rules.

The practical lesson is that applicants should not assume USCIS will always provide another opportunity to submit a missing document after filing.

For employment-based green card applicants, that makes complete employment records, supporting financial evidence, and consistency across immigration filings increasingly important from the beginning of the case.

International students and H-1B professionals who later enter the PERM, I-140, or I-485 process should also keep copies of earlier immigration filings, including DS-160 applications and employment records. Information submitted years earlier can become relevant again when USCIS reviews a future green card petition.

Sources:

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Topics: RFE

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