The US Department of Homeland Security‘s rescission of the 2022 public charge regulation took effect September 18, 2026, ending a limit that had confined US Citizenship and Immigration Services officers to two kinds of government assistance when judging whether a green card applicant is likely to become a public charge. Officers may now weigh any means-tested public benefit an applicant receives, applies for or is approved to receive on or after that date, alongside five statutory factors, in every adjustment of status application subject to the public charge test and filed since then.
DHS announced the final rule, signed by Homeland Security Secretary Markwayne Mullin, on July 16, 2026, and published it July 20 at 91 FR 45324. It deletes the 2022 regulations and replaces them with none. On August 18, USCIS issued Policy Manual guidance superseding the 1999 Interim Field Guidance and all related earlier public charge guidance. USCIS said the guidance is intended to “guide but not prescribe” how officers exercise discretion in case-by-case determinations.
“The updated guidance aligns with congressional intent that aliens in the United States be self-sufficient and not dependent on taxpayer-funded government benefits.”
— US Citizenship and Immigration Services, “USCIS Issues Guidance on Making Public Charge Inadmissibility Determination,” August 18, 2026
What the 2022 Rule Did
The 2022 regulation, adopted under the Biden administration, limited the benefits officers could count to public cash assistance for income maintenance and long-term institutionalization at government expense. DHS wrote in the new rule that the 2022 approach was “inconsistent with congressional intent, unduly restrictive,” and said it is returning to the approach that guided public charge decisions “for decades before the 1999 Interim Field Guidance.” DHS received 8,846 comments on the proposal, most of them opposed, and finalized the rule as proposed.
Which Benefits Now Count
Under the rule, DHS considers “any and all public benefits funded by the government for which eligibility is determined by assessing whether the alien’s means are below a specified level.” The USCIS guidance lists cash assistance for income maintenance, housing assistance, food stamps and financial aid for college as examples. Earned benefits such as Title II Social Security, government pensions, unemployment insurance and veterans’ benefits are excluded.
The expansion is prospective. For benefits received before September 18, 2026, officers consider only the two categories the 2022 rule allowed, according to Chapter 7 of the Policy Manual’s public charge section. Applications and approvals count as well as receipt, but only from September 18 onward, and benefits approved to run past that date count unless the applicant shows disenrollment or withdrawal. The chapter states that receipt alone “is not a sufficient basis” for a public charge finding, and that an applicant who never received benefits can still be found inadmissible.
DHS wrote that it does not plan to consider benefits received by an applicant’s US citizen or permanent resident children, “as they are not the applicant for adjustment of status.” DHS added a qualification: if family members the applicant is legally obligated to support receive benefits because the applicant’s income fell below a program threshold, DHS would weigh that fact under the applicant’s assets, resources and financial status.
Who Is Subject and Who Is Exempt
According to USCIS, the test applies to most family-based applicants, including relatives of US citizens and permanent residents; to diversity visa immigrants; and to employment-based categories: priority workers, professionals with advanced degrees or aliens of exceptional ability, skilled workers, professionals and other workers, investors and religious workers.
Categories Congress exempted include refugees and asylees, special immigrant juveniles, Temporary Protected Status applicants, T and U nonimmigrants, Violence Against Women Act self-petitioners and Cuban Adjustment Act applicants, among others. Benefits received in an exempt status can be considered if the person later adjusts in a non-exempt category, though officers may give them limited weight, DHS wrote. The rule does not apply to extensions of stay or changes of nonimmigrant status, and it does not revise State Department standards for consular visa decisions.
DHS anticipates that most employment-based applicants would see “little change in the processing of their applications,” citing precedent that “a healthy person in the prime of life who is already employed in the United States or who has prospective employment generally would not be found likely at any time to become a public charge.”
Forms, Affidavits and Bonds
Officers weigh an applicant’s age; health; family status; assets, resources and financial status; and education and skills, and may consider Form I-864, Affidavit of Support, which the rule notes most family-based and certain employment-based applicants must submit.
As its July 16 news release said it would, USCIS published a revised Form I-485, Application to Register Permanent Residence or Adjust Status, dated September 18, 2026, with no grace period. It rejects the editions dated January 20, 2025, and September 4, 2026, if postmarked or electronically submitted on or after that date.
An applicant found inadmissible solely on public charge grounds may be invited, in a Notice of Intent to Deny, to post a bond on Form I-945, in cash or through a surety company certified by the US Treasury. The amount reflects the assistance the applicant could receive over five years, and uninvited bonds are not accepted. A bond posted on or after September 18 is breached if the bonded person receives any means-tested public benefit before death, permanent departure or naturalization, or otherwise violates a bond condition.
States and Cities File Suit
On September 14, New York Attorney General Letitia James led a coalition of 21 other states, including Pennsylvania through Governor Josh Shapiro, and the District of Columbia in a lawsuit in the US District Court for the Southern District of New York. The complaint in State of New York v. US Department of Homeland Security, No. 1:26-cv-07978, argues the rule violates the Administrative Procedure Act and asks the court to vacate it and, to the extent it sets operative standards, the USCIS guidance.
“Hardworking families should not be forced to go without the support they need because they fear asking for assistance will get them deported,” James said. The states contend the rule reaches benefits used by US citizen family members and cite DHS’s own estimate that disenrollment or forgone enrollment in Medicaid and the Children’s Health Insurance Program would reduce state transfer payments by about $4.05 billion USD a year.
New York City, under Mayor Zohran Mamdani, filed a separate suit in the same court with Chicago, San Francisco, Santa Clara County, Seattle, King County and the Public Rights Project. The rule took effect while both cases were pending. As of September 28, the Oregon Department of Justice’s litigation tracker for the states’ case listed no ruling or other entry after the complaint.
Jeff Joseph, president of the American Immigration Lawyers Association, said in a July 16 statement that the rule upends a framework built on factors Congress set, “replacing it with uncertainty and broad discretion that risks arbitrary decision-making without accountability.”
(Photo: Image by Sunriseforever from Pixabay)