DHS’s new regulatory scheme governing the “public charge” ground of inadmissibility has been effective from September 18, 2026, which made the test significantly more discretionary, potentially impacting a wider swath of the population. This rule impacts adjustment of status applications filed on or after September 18.
Please note, at the time of writing (September 25, 2026), several lawsuits are ongoing challenging the legality of DHS’s promulgation of this rule and seeking to get the rule vacated, which, depending on their outcome, may end up limiting or undoing the changes made by this rule in the future.
For the time being while the rule is in place, it is worth taking a close look at the new rules because they significantly changed the way the government looks at the question whether someone is “likely to become a public charge” as a potential ground of inadmissibility.
Every applicant who seeks to adjust status to a green card holder must prove that they are not subject to any grounds of inadmissibility, including that they are “not likely to become a public charge.”
Below is a summary of some of the major changes, who it impacts and doesn’t, and what applicants should be mindful of as they prepare their cases.
- The September 18, 2026 rule makes the public charge test broader and more discretionary, using a “totality of the circumstances” standard without clear regulatory bright lines.
- Receipt of Medicaid, SNAP, and other means-tested public benefits after the effective date, including by certain household members, can negatively affect admissibility determinations.
- A sufficient Form I-864 Affidavit of Support is no longer a safe harbor; it is only one factor, and USCIS may closely scrutinize sponsors and applicants’ finances.
How the Final Rule Changes the Public Charge Ground of Inadmissibility
A Broader Public Charge Ground of Inadmissibility Test
The definition of “public charge” became more open to interpretation. The agency now uses a broader “totality of the circumstances” test to determine whether someone is likely to become a public charge, including receipt of any means-tested public benefits.
The main effect of the new rule is that it removed the regulatory provisions in 8 C.F.R. 212.20, 212.21, and 212.23 that specifically defined what it meant to be “likely … to become a public charge.”
The existing rules clarified that this meant situations where someone is likely to become “primarily dependent on the government for subsistence,” demonstrated by either having received “cash assistance” for income maintenance defined as SSI, TANF, or state and local analogues, or being institutionalized long-term in a government-funded nursing home or mental health institution.
The new rule removed these sections altogether, so there is no longer a regulatory bright-line test that guides how an agency adjudicator should find who is considered likely to become a public charge and what kinds of public benefits cut against the individual. Adjudicators now have to rely on internal agency guidance (which can be set and changed at any time), and their own discretion.
The Statute’s Minimum Factors Now Control
Without the specifying regulations, the open-ended definitions of the statute itself, the Immigration and Nationality Act (INA), now control, INA 212(a)(4), where “public charge” is not expressly defined. The statute describes five “minimum” factors to be considered, which are age, health, family status, assets/financial status, and education and skills, but does not set a limit on what other factors may be considered.
Medicaid, SNAP, and Benefits Received After the Effective Date
The practical effect of this change is that one’s record of receiving a wider range of public benefits may now cut against them in this new discretionary analysis, if those benefits were received after the rule’s effective date. For example, receipt of Medicaid and SNAP benefits, which were previously excluded from consideration, now becomes relevant if they were received on or after September 18, 2026.
But it is worth noting that the broad scope of DHS’s discretionary authority doesn’t stop there and is not limited to just adding Medicaid and SNAP into consideration. Under the new rules, there is technically no limit on what other factor can be a basis of a “public charge” inadmissibility finding, and officers are not prohibited from considering any other aspect of someone’s financial circumstances even outside of whether they received any public benefits.
Benefits Received by Household Members
Receipt of public benefits by other family members in the applicant’s household may also be considered, if the benefit was conferred based on the applicant’s own income or assets falling below a certain threshold.
Another significant change to the scope of the “public charge” inquiry under the new rules is that now, officers can even consider the receipt of public benefits by other members of the applicant’s household as a relevant factor in the “public charge” analysis, in cases where the benefits were conferred based on an assessment of the applicant’s own income or assets falling below a certain level.
The I-864 Affidavit of Support Is No Longer a Safe Harbor
Submitting I-864 affidavit of support, in the case of family-sponsored applicants, doesn’t always guarantee that the applicant will meet this requirement.
The new regulations also removed another express provision, 8 C.F.R. 212.22(a)(2), that recognized that if a family-sponsored immigrant submits a valid I-864, Affidavit of Support, that should be favorably considered by DHS in making a public charge inadmissibility determination. With the new rule and internal guidance, USCIS now takes the position that a sufficient Form I-864 is only one factor within the totality of the circumstances inquiry.
This means USCIS officers are empowered to look beyond the sufficient I-864 and look at other facts such as whether the U.S. sponsor is receiving means-tested public benefits, whether the U.S. sponsor lives with the beneficiary, the degree by which the U.S. sponsor’s income exceeds the statutorily required level, and whether the U.S. sponsor has a history of bankruptcy, etc.
Thus, submission of a sufficient I-864 will no longer be a safe harbor against a “public charge” inadmissibility finding and cases supported by an I-864 will receive more scrutiny than before.
Who the New Public Charge Rules Generally Do Not Affect
Statutory Exemptions Remain, Regulatory Exemptions May Not
The new regulation generally does not affect existing statutorily mandated exemptions for asylees, refugees, T visa, U visa, VAWA beneficiaries, who are exempt from the “public charge” ground of inadmissibility under the INA.
Because the new rules consist of changes at the regulations level, certain exemptions set out in the statute level will be left intact. This should assuage concern for certain groups such as refugees, asylees, T visa, U visa, and VAWA beneficiaries, who are exempt from the “public charge” ground of inadmissibility under the express statutory provisions of the INA itself or any other statute. These groups will continue to be exempt.
However, groups that were only exempt based on the 2022 regulations may lose their exemption.
Existing Green Card Holders
Existing green card holders are typically not subject to a re-examination of admissibility unless they are returning from a long absence or have committed a crime under INA 212(a)(2).
Existing green card holders normally would not have a reason to be re-examined on whether they continue to meet the standards for inadmissibility under the “public charge” rules, so they would likely not be affected unless a few special situations apply.
Returning After More Than 180 Days Abroad
The first situation is if the green card holder travels outside the United States, stays abroad for longer than 180 days, and tries to re-enter the United States. At that point, the green card holder is considered again an “applicant for admission,” at which point the person would need to prove that they are not subject to any grounds of inadmissibility, including that of the “public charge” requirement.
Criminal Grounds Under INA 212(a)(2)
The second situation is if the green card holder has committed a crime that falls under INA 212(a)(2). If they travel abroad and try to re-enter, they would again be considered as an “applicant for admission” and would need to prove they are not subject to any grounds of inadmissibility.
Naturalization Is a Separate Test
Inadmissibility is not a requirement for naturalization when a green card holder applies to become a U.S. citizen. For this, a separate set of eligibility criteria applies, including lawful admission as an LPR, physical presence, continuous residence, and good moral character. USCIS may still question whether an applicant met all admissibility requirements at the time they adjusted status to become a lawful permanent resident (LPR), but typically will not monitor continued eligibility under these standards after they were last admitted as an LPR.
Preparing Your Green Card Application Under the New Public Charge Rules
The public charge analysis now turns on officer discretion and the full picture of an applicant’s finances, household, and sponsorship. If you are preparing to adjust status, or you want to understand how past benefits or your sponsor’s Form I-864 may be weighed, the attorneys at Scott Legal, P.C. can review your situation and help you build the strongest possible record. Schedule a consultation to discuss your options.
