DHS Makes Up New Public Charge Rule, Bringing More Uncertainty for Green Card Applicants

By John W. Lawit and Madeline Carles, Paralegal Intern 

Authors’ Note: John W. Lawit is an attorney at law. Madeline Carles is a paralegal intern, not a practicing attorney. This article is written for educational purposes and informational purposes, and does not constitute legal advice.

Key Summary:

• DHS has rescinded the 2022 public charge regulations at 8 C.F.R. §§ 212.20-212.23, removing the detailed regulatory framework that had governed public charge determinations. 
• In its place, USCIS officers will rely more directly on INA § 212(a)(4), including the mandatory statutory factors, the applicant’s receipt of means-tested public benefits, other case-specific facts, and empirical data relevant to self-sufficiency.
• The people most affected are applicants for admission and applicants for adjustment of status who are subject to the public charge ground, especially green card applicants navigating adjustment of status and the affidavit-of-support framework that applies to most family-sponsored immigrants. 
• Statutory exemptions still exist for categories such as asylees, refugees, T applicants, U applicants, and VAWA-based applicants.
• In the short term, the change is likely to result in more interview questioning, more Requests for Evidence and Notices of Intent to Deny, and slower or less streamlined adjudications. Over the longer term, it is likely to produce a more discretionary and less predictable system, while increasing fear around the lawful use of public benefits, including healthcare.

What the Government Changed

The 2026 rule does more than revise a few definitions. It removes the structured 2022 framework and replaces it with a broader, more discretionary system with little definition or standards. Under the new approach, DHS officers are empowered to consider the mandatory statutory factors, the receipt of means-tested public benefits, evidence that a person applied for or was approved or certified to receive such benefits, and other case-specific evidence the officer finds relevant. DHS has said the goal is to allow officers to make more individualized decisions under the totality of the circumstances.

USCIS has also made clear that future guidance in the USCIS Policy Manual will guide, but not rigidly prescribe, these public charge determinations in adjustment cases. That guidance is expected to explain how officers may consider the receipt of means-tested public benefits by the applicant, along with other relevant information.

That shift matters because the 2022 framework gave immigrants and practitioners clearer guardrails. Under the 2022 rule, DHS defined a person likely to become a public charge as someone likely to become primarily dependent on the government for subsistence, as demonstrated either by the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. The 2022 approach also excluded various supplemental benefits from consideration, including programs such as SNAP, CHIP, Medicaid other than long-term institutional services, and housing assistance. It further tied the inquiry more closely to the applicant’s actual receipt of specified benefits, and the 2026 rescission removes that codified structure in favor of broader officer discretion. 

Who Is Most Likely to Feel the Impact?

The change is likely to be felt most directly by people applying for lawful permanent residence inside the United States through adjustment of status, because USCIS has said its Policy Manual guidance will apply to those adjudications. It will also affect immigrant and mixed-status families more broadly, especially where decisions about using public benefits may now carry more uncertainty.

What Applicants May See in the Near Term

In the short term, the biggest effect is likely to be uncertainty. Comments addressing the rule warned that rescinding the 2022 framework without a full replacement would leave immigrants, service providers, and public agencies without clear standards, making it harder to advise people reliably and increasing fear about benefit use.

Applicants may also see more case-by-case questioning and a less uniform process. With the regulatory definitions gone, similar fact patterns may be treated differently from one office to another. In practice, important rules may emerge through internal training, policy updates, interview trends, Requests for Evidence, and Notices of Intent to Deny rather than through detailed regulations published in the Code of Federal Regulations.

What This Could Mean Over Time

Over the longer term, the change points to a more discretionary system. DHS has said officers should use good judgment and broad discretion to make highly individualized, fact-specific public charge decisions based on the totality of each person’s circumstances, rather than being limited by rigid regulatory definitions and standards.

That shift is likely to make outcomes less predictable. AILA’s summary of the rule explains that adjudications will now focus on the minimum statutory factors in INA § 212(a)(4), along with individualized circumstances and even yet-undefined empirical data, making public charge decisions more subjective than they were under the 2022 rule.

The longer-term social impact may be just as important as the legal one. DHS itself projected that the rule may reduce public-benefit enrollment because some immigrants, and even U.S. citizens in mixed-status households, may choose to disenroll from or forgo benefits. The result may be a chilling effect that extends well beyond the applicants whose immigration cases are directly at issue. 

Why This Shift Matters

The core change is not that every use of benefits now leads to a denial. The change is that the government has moved away from a system with clearer written boundaries and toward one that gives immigration officers much more room to decide what evidence matters and how much weight to give it. For applicants, that can mean a more searching review of finances, health, education, work history, household circumstances, and benefit use, even where no single factor is automatically disqualifying.

This article is provided for general informational purposes only and does not constitute legal advice. Immigration laws and policies can change, and individuals should consult with a qualified immigration attorney regarding their specific circumstances. If you have questions, please call John W. Lawit, LLC at 214-609-2242.