The Department of Homeland Security (DHS) recently announced significant changes to the public charge framework, rescinding the 2022 Public Charge Ground of Inadmissibility Regulations (“2022 Final Rule”). These changes will affect how U.S. immigration officers evaluate whether certain applicants for a visa, admission to the United States or adjustment of status are likely to become a “public charge,” which may ultimately impact the approval of their immigration benefit requests.
What is Public Charge?
Within U.S. immigration law, certain noncitizens applying for a visa, admission to the United States or adjustment of status may be found inadmissible if an immigration officer determines they are likely at any time to become a public charge, unless they fall within an exempt category. Based on statutory and regulatory authority, the public charge ground of inadmissibility does not apply to asylees and refugees, special immigrant juveniles, victims of human trafficking and victims of qualifying criminal activity, self-petitioners under the Violence against Women Act (VAWA), and others. While there is no specific definition of “public charge,” provided, by statute, officers must at least consider the applicant’s (i) age, (ii) health, (iii) family status, (iv) assets, resources and financial status, and (v) education and skills.
The new approach, as discussed below, will now enable officers to consider not only the statutory factors, but all evidence and information that the officers deem relevant when assessing an applicant’s likelihood of becoming a public charge.
How the Public Charge Framework is Changing
The soon-to-be rescinded 2022 Public Charge Rule limited the types of public benefits DHS could consider in a public charge determination; the rule strictly limited consideration to public cash assistance for income maintenance and long-term institutionalization at government expense.
Under the new framework, officers will instead make individualized, fact-specific public charge inadmissibility determinations, based on the totality of the circumstances. In addition to the mandatory statutory factors listed above, officers may consider the applicant’s receipt of means-tested public benefits, other individualized case-specific factors and circumstances relevant to the case, and empirical data relevant to the applicant’s ability to remain financially self-sufficient.
As a result, officers will have broader discretion to examine the public benefits an applicant has received, the duration and extent of that assistance, and the circumstances surrounding its use. Consequently, receipt of benefits such as Medicaid and the Supplemental Nutritional Assistance Program (SNAP) may now be considered as part of the overall analysis.
Whose Use of Public Benefits May Be Considered?
Under this new rule, public charge determinations will be made on a case-by-case basis and will focus on the applicant applying for a visa, admission to the United States or adjustment of status within the United States. However, DHS may consider receipt of these benefits by family members in certain circumstances. For example, if a spouse or child receives means-tested public benefits because the applicant’s income falls below the applicable eligibility threshold, that information may be considered as part of the “totality of the circumstances” analysis.
How the New Rule May Affect Benefit Usage
The new public charge rule may have significant effects on individuals and families seeking immigration benefits. With immigration officers evaluating each public charge determination on a case-by-case basis and being able to consider a broader range of public benefits, some applicants may become hesitant to enroll or continuing using benefits for which they are otherwise eligible, leading to disenrollment in SNAP, Medicaid, Women, Infants and Children program (WIC) and other public benefits.
Timing Considerations
This final rule will take effect on September 18, 2026, and will apply to applications for admission and adjustment of status filed on or after that date. Until then, the 2022 Public Charge Final Rule will remain in effect, limiting DHS’s consideration primarily to the receipt of public cash assistance for income maintenance and long-term institutionalization at government expense. Beginning September 18, 2026, however, officers will have broader authority to consider an applicant’s receipt of means-tested public benefits as well as other circumstances relevant to the applicant’s case.
Of note, DHS will not consider previously excluded means-tested public benefits that were received before September 18, 2026. However, if the applicant continues to receive these benefits on or after September 18, 2026, this can figure into the public charge determination.
Planning Ahead
With September 18, 2026, approaching, it is important for applicants seeking admission to the United States or adjusting status to understand the “totality of the circumstances” approach being implemented and the types of means-tested public benefits that can now be considered.
In connection with these changes, United States Citizenship and Immigration Services (USCIS) is also expected to issue a revised Form I-485, Application to Register Permanent Residence or Adjust Status. Applicants should ensure they are using the correct version of the form when the time comes and remain attentive to additional guidance issued by USCIS as the effective date approaches.
Given the expanded framework for the public charge analysis, applicants should review their individual circumstances and seek legal guidance before submitting an application.
If you have questions or need assistance with this change or related Immigration matters, our Immigration Practice Group can help. Please reach out to attorney Alexis E. Newman at (518) 701-2795 and anewman@harrisbeachmurtha.com; or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
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