Quick Hits
- USCIS has revised its policy manual section on the public charge standard ahead of the September 18, 2026, effective date.
- The new policy asks whether an adjustment of status applicant is likely, at any time, to depend on the government for basic needs such as shelter, food, or healthcare, meaning likely to rely on any means-tested public benefit.
- The guidance applies only to adjustment of status applications, covering both employment-based and family-based applicants subject to the public charge ground of inadmissibility.
Under the Immigration and Nationality Act (INA), an applicant for a visa, admission, or adjustment of status is inadmissible if the reviewing officer believes an individual is likely at any time to become a public charge. The public charge ground of inadmissibility applies to any noncitizen applying for a visa to travel to the United States (temporarily or permanently), for admission at a port of entry, or for adjustment of status to that of a lawful permanent resident. However, USCIS clarifies that the new policy manual guidance applies only to those applying for Application to Register Permanent Residence or Adjust Status (Form I-485). The policy manual guidance does not apply to applicants for admission at ports of entry adjudicated by U.S. Customs and Border Protection (CBP), or noncitizens applying for nonimmigrant and immigrant visas through the U.S. Department of State. Additionally, it does not apply to the adjudication of adjustment of status applications by the Executive Office of Immigration Review (EOIR) of the U.S. Department of Justice (DOJ).
The public charge ground of inadmissibility is based on the longstanding policy that noncitizens should not be dependent on public benefits to meet their basic needs (i.e., shelter, food, or healthcare). The INA does not define “public charge,” and this has historically been defined through policy guidance and rules. As previously reported, under the Biden-era 2022 rule, officers were limited to seven enumerated factors when determining if an applicant is more likely than not to become a public charge: age, health, family status, financial status, education/skills, affidavit of support, and receipt of specified benefits. The new guidance builds on the Biden-era rule and allows officers to consider a broader variety of factors, including:
- factors considered under the 2022 rule, including age, health, family status, financial status, education/skills, affidavit of support, and receipt of specified benefits;
- receipt of and dependence on any means-tested public benefit, including both cash and noncash benefits (examples include, but are not limited to cash assistance, public or assisted housing, financial aid for postsecondary education, food assistance, government-funded health coverage, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit); and
- any factors the officer determines are relevant to public charge (e.g., the noncitizen’s willingness and ability to work, the noncitizen serves as a primary caregiver within his or her household, the noncitizen is an active-duty servicemember or spouse of an active-duty servicemember, or the noncitizen was the victim of a crime, domestic violence, or other adverse circumstances).
The new guidance considerably broadens an officer’s discretion in determining if a noncitizen is considered a public charge. Newly relevant noncash, means-tested benefits include:
- Medicaid;
- the Children’s Health Insurance Program (CHIP),
- Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and
- the Supplemental Nutrition Assistance Program (SNAP).
Earned benefits indicated in a noncitizen’s household income are not considered means-tested public benefits, such as:
- Title II Social Security benefits,
- government pension benefits,
- unemployment insurance payments, and
- veterans’ benefits.
Officers will review public charge factors based on a “totality of the circumstances” analysis. The new policy guidance grants officers wide latitude, which USCIS acknowledges may result in divergent outcomes from one adjudicator to the next, including inconsistent requests for evidence issued on similar facts.
USCIS maintains that no single factor controls the outcome, with the exception that an insufficient Form I-864 Affidavit of Support, where required, can be dispositive on its own. The affidavit of support is generally required for family-based adjustment of status applications. When officers decide in their discretion to consider sufficiency of a Form I-864, they should give it weight based on the likelihood that the sponsor will actually provide the mandated financial support to the sponsored noncitizen. In assessing that likelihood, officers may consider:
- the sponsor’s relationship to the sponsored noncitizen, including whether the sponsor lives with or intends to live with the sponsored noncitizen;
- whether the sponsor has provided the statutorily required amount of support to any noncitizen(s) he or she has sponsored in the past or is currently sponsoring;
- the degree to which the sponsor’s annual income, assets, and resources exceed the minimum level required by the statute;
- whether the sponsor is currently receiving means-tested public benefits;
- whether the sponsor has received a fee waiver from USCIS for an immigration benefit request; and
- the sponsor’s financial history, including a history of bankruptcy or failure to meet his or her financial responsibilities.
Next Steps
The new guidance applies only to Form I-485 Application to Register Permanent Residence or Adjust Status filed on or after September 18, 2026. Any means-tested public benefit sought or received on or after September 18, 2026, may be weighed in a public charge determination and may impact the outcome of the Form I-485 application. Benefits sought or received before that date remain governed by the 2022 rule’s narrower cash-assistance and institutionalization standard.
To learn more about this development and other critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will post updates on the Immigration blog as additional information becomes available.
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