- within Employment and HR topic(s)
The Department of Homeland Security (DHS) has rescinded the 2022 public charge rule and, for applications filed on or after September 18, 2026, will apply a broader, discretionary standard when making public charge determinations. No new guidance for public charge assessment has been issued; instead, officers will evaluate the totality of the circumstances without the limitations the Biden-era rule imposed.
Who is Impacted?
Applicants for admission to the United States are subject to the public charge ground of inadmissibility under Section 212(a)(4) of the Immigration and Nationality Act (INA) unless specifically exempted. The public charge ground of inadmissibility requires adjudicating officers to determine whether an applicant is likely to become primarily dependent on the U.S. government for subsistence. It is most relevant in family-based immigrant visas and some employment-based cases where an affidavit of support is required. Under the current regulations, the applicant is generally assessed based on their age, health, income/assets, education/skills, and whether they have a financial sponsor to provide support in the United States. If an officer finds that an applicant will likely become a public charge, they must deny their application for a green card, visa, or admission into the U.S.
Under the 2022 regulation, DHS officers could not consider benefits received for food, health, and housing. Officers would only consider primary dependence on cash-assistance programs, such as SSI (Supplemental Security Income), TANF (Temporary Assistance for Needy Families), and state or local General Assistance, as well as long-term institutionalized medical care paid for by the government, and statutory factors such as age, income, and education/skills. Under the new rule, the Biden-era limitation on the types of benefits considered is eliminated. Instead, USCIS officers are given broad discretion in assessing any benefits the applicant received.
The new rule will become effective September 18, 2026, and will impact applications filed on or after this date. Applications filed before September 18, 2026, will be assessed under the 2022 rule.Likewise, benefits received before September 18, 2026, will be evaluated under the 2022 rule. USCIS announced it will issue a new edition of Form I-485 application form in light of the new rule.
What Should Green Card Applicants Do?
Applicants pursuing immigrant visas (green cards) through consular processing abroad should keep in mind that, in February 2026, the Department of State (DOS) issued guidance on public charge determinations which already expanded health, education, and past receipt of public assistance considerations beyond those reflected in the INA and previous Foreign Affairs Manual guidance. The DOS guidance can be found here.
Additionally, applicants should also consider if they are subject to the travel ban proclamation issued in January, which prevents individuals from a list of 75 countries from applying for a green card from outside the U.S because it is the government’s view that they are at “high risk” of becoming a public charge. For further information on the travel ban, please review our client alert, which includes the full list of countries impacted. A lawsuit challenging this ban is currently pending, CLINIC et al. v. Rubio et al, filed by the National Immigration Law Center (NILC) and others.
We expect this new rule to face legal challenges. The Executive Director of the American Immigration Lawyers Association, Benjamin Johnson, has issued a statement criticizing the new rule and warning that it could result in arbitrary public charge determinations and discourage immigrants from seeking public benefits.
If you have questions or concerns about the information in this alert, please reach out to a Klasko attorney or request a consultation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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