Explaining USCIS's New Public Charge Discretion: Green Card Review Changes Taking Effect in September 2026

The 'public charge' ground of inadmissibility under Section 212(a)(4) of the Immigration and Nationality Act has existed in some form since 1882. Over the past 30 years, however, its interpretation and application have swung back and forth repeatedly.

On August 18, 2026, U.S. Citizenship and Immigration Services issued a policy alert amending Part G of Volume 8 of the USCIS Policy Manual. The move implements the Department of Homeland Security's final rule rescinding the 2022 public charge regulation. That final rule dismantles the entire regulatory framework the Biden administration built around a narrow 'primary reliance' test, without substituting a new regulatory definition. Instead, USCIS officers will now adjudicate based on guidance outside the departmental regulations. The guidance directs them to apply a broad, case-by-case, totality-of-the-circumstances standard in assessing green card applicants' past and current receipt of a wider range of public benefits.

The new guidance focuses on the applicant's income, assets, occupational skills, employability, educational background, health, health insurance coverage, and age. Although the affidavit of support still plays an important role in the public charge assessment, the new guidance gives it less weight. In addition, the new guidance requires an assessment of the likelihood that the sponsor will actually provide financial support to the intending immigrant.

The new public charge standard takes effect on September 18, 2026, and applies to green card applications mailed (as shown by the postmark) or filed online on or after that date. Applications filed before that date will still be adjudicated under the 2022 rule and related guidance. USCIS also requires applicants to use the new version of Form I-485 (Application to Register Permanent Residence or Adjust Status), which asks for specific information about the applicant's receipt of 'means-tested' public benefits.

This Policy Manual guidance does not apply to applicants seeking admission at a port of entry (adjudicated by U.S. Customs and Border Protection), nor to those applying for immigrant or nonimmigrant visas with the U.S. Department of State, nor to those applying for adjustment of status with the U.S. Executive Office for Immigration Review.

This article outlines the most important changes in the 'public charge' definition as applied by USCIS, and how those changes affect low-income applicants. It also covers the contents of the U.S. Department of State's 2025 cable redefining 'public charge.'

The Shifting History of 'Public Charge' Policy

The 'public charge' ground of inadmissibility under Section 212(a)(4) of the Immigration and Nationality Act has existed in some form since 1882. Over the past 30 years, however, its interpretation and application have swung back and forth repeatedly. Before 1996, the former Immigration and Naturalization Service generally required low-income applicants to submit only a signed Form I-134 (affidavit of support) to ensure the applicant would have some form of financial support. But these affidavits had a very low threshold—only 100% of the federal poverty line—and courts held that they were not legally enforceable. In addition, the INS often asked applicants to present job offer letters from current or prospective employers.

That changed on December 19, 1997, when the agency began implementing a regulation requiring applicants to submit Form I-864 (the affidavit of support under Section 213A of the Immigration and Nationality Act). The regulation also listed five factors that must be considered in assessing an applicant: age, health, family status, assets/resources/financial status, and education/skills. From 1999 to 2019, the operative standard was the former INS's 1999 Interim Field Guidance. That guidance defined 'public charge' as being primarily dependent on the government for subsistence, as evidenced by receipt of cash assistance for income maintenance or government-funded long-term institutionalization. Non-cash benefits—such as Medicaid, the Supplemental Nutrition Assistance Program, the Children's Health Insurance Program, the Special Supplemental Nutrition Program for Women, Infants, and Children, and housing assistance—were outside the assessment.

By August 2019, the Department of Homeland Security under the first Trump administration issued a final rule that greatly broadened the standard's scope: it adopted a new 'dependency' standard, brought more non-cash benefits into consideration, introduced heavily weighted positive and negative factors, and required applicants to submit Form I-944 (Declaration of Self-Sufficiency). The rule spawned five separate lawsuits, leading to injunctions in various jurisdictions, until the Biden administration declined to defend it in March 2021, at which point the 1999 field guidance was temporarily restored.

Afterward, the U.S. Department of Homeland Security completed the full notice-and-comment process and issued the 2022 final rule, which took effect on December 23, 2022. The rule returns to the pre-2019 approach, defining "public charge" as primary reliance on government support, specifically receipt of the following benefits: (1) two federal cash assistance programs—Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF); (2) state or local general assistance; or (3) government-funded long-term institutional care (a special type of Medicaid). The rule expressly excludes the Supplemental Nutrition Assistance Program (SNAP), most of Medicaid, the Children's Health Insurance Program (CHIP), the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and housing assistance from consideration. The USCIS Policy Manual also downplays the impact of the five statutory factors in defining them, shifting emphasis to Form I-864.

The earlier lawsuits challenging the Trump administration's 2019 rule were largely successful, which explains why the current DHS chose in 2026 to fully rescind the Biden administration's rule rather than issue a new regulation to replace it. This administration's rescission of the 2022 rule does not mean a return to the 2019 rule. Rather, it removes the 'safety net' of the Biden rule and gives USCIS officers broader discretion to now consider more factors relevant to adjustment of status applicants.

Without the protections of the 2022 rule, applicants may need to provide documentary evidence on finances, taxes, education, employment, and health. The weight of the affidavit of support from the applicant/sponsor or joint sponsor will be reduced. An accumulation of minor 'negative' factors could lead officials to find inadmissibility based on a 'totality of the circumstances.' Proving economic self-sufficiency will place a disproportionately heavy burden on: retirees, low-income people, those with unstable or intermittent work histories, older individuals, people with health problems, and those lacking a high school diploma, job skills, sufficient financial assets, health insurance, or stable housing.

The change will also adversely affect applicants whose children or sponsors are receiving, or have received, 'means-tested' public benefits. DHS even claims that one purported benefit of rescinding the 2022 rule is reduced use of state and federal public benefits by low-income immigrant families. It estimates annual savings of $13.05 billion from disenrollment or forgoing enrollment. In families with members of different immigration statuses, members who are U.S. citizens will be unable to access medical, educational, nutritional, and housing benefits they urgently need and are legally entitled to. As the preamble to the proposed rescission rule acknowledged, deterring these family members from accessing benefits 'could' cause various harms to public health, community stability, and resilience.

The USCIS Policy Manual Revisions on Public Charge

The Policy Manual contains 99 pages of new guidance on inadmissibility based on 'public charge.' Below are ten key points to note:

1. The New Definition of 'Public Charge'

USCIS stresses that it has not established a precise definition of 'likely at any time to become a public charge.' At the same time, it states: 'If an alien is likely to rely on the government to meet basic living needs such as shelter, food, or medical care (typically evidenced by reliance on means-tested public benefits), USCIS will generally find the alien likely at any time to become a public charge.' In other words, in deciding whether to deny admission on public charge grounds, USCIS officers will consider the applicant's current and future reliance on means-tested public benefits.

2. Benefits Received by the Applicant

In conducting the 'totality of the circumstances' assessment, USCIS may consider any 'means-tested' public benefits the applicant receives on or after September 18, 2026. From that date, the new assessment framework requires consideration of the applicant's receipt of any means-tested public benefit in determining whether the applicant is likely to become a public charge in the future, 'without regard to time limits.' The guidance explains that 'receipt of such benefits may indicate that the applicant relies on the government to meet living needs.'

The guidance directs immigration officers, when deciding whether to deny admission on public charge grounds, to consider the applicant's receipt of 'any means-tested public benefit used to meet basic needs,' as well as potential future reliance on such benefits. At the same time, 'past or current receipt of means-tested public benefits does not necessarily mean future receipt.' In applying the totality-of-the-circumstances test, officers will assess this together with all other factors in the applicant's case.

3. Means-Tested Benefits

USCIS does not define 'means-tested' but instead provides the following guidelines:

• If eligibility for a benefit depends on whether the applicant's income or assets fall below a certain threshold, the benefit is generally considered 'means-tested';

• If the benefit's funding or assistance is provided by a government agency (federal, state, or local) or with government-appropriated funds, the benefit is generally a 'public' benefit;

• Common examples include: cash assistance, public or subsidized housing, higher education tuition assistance, food assistance, government-funded health insurance, and other similar benefits providing funds or assistance to individuals, families, or household units.

• Earned income or work-related benefits (such as Social Security retirement or disability benefits, and Medicare) are not means-tested and therefore outside the scope of consideration. Unemployment insurance and workers' compensation benefits are also excluded.

4. 'Receipt' Includes Application, Approval, and Eligibility Confirmation

In assessing the applicant's overall circumstances, USCIS will consider 'applications for, confirmation of, or approval of future benefits…' The agency will also consider relevant supporting evidence, such as the applicant withdrawing an application or notifying the benefit-granting agency of an intent to withdraw from benefits currently received or approved/confirmed for future receipt.

5. Benefits Received by Other Family Members

If a U.S. citizen or lawful permanent resident (LPR) child receives benefits, USCIS will not automatically attribute that to a parent applying for adjustment of status. Nor will the agency attribute to the applicant benefits the applicant applied for on behalf of others. However, if the applicant's child or another family member whom the applicant is legally obligated to support obtained means-tested public benefits based on the applicant's income or assets, adjudicators may find that the applicant's income or assets fall below the statutory threshold.

6. Relevant Supporting Evidence

In adjudicating adjustment of status applications, immigration officers must assess the following evidence and information:

• Form I-485;

• Form I-864;

• Form I-693 (Report of Medical Examination and Vaccination Record), and any other medical reports in the file;

• Any records of the applicant's current or past receipt of means-tested public benefits;

• The applicant's applications for means-tested public benefits, and approvals or eligibility confirmations for such benefits;

• Any empirical data relevant to the applicant's ability to be self-sufficient;

• Any other forms and evidence in the applicant's file, and statements made during interview; and

• Any supporting documents related to the five statutory factors (described below).

7. The Five Statutory Factors

USCIS officers must weigh the five minimum statutory factors set out in Section 212(a)(4)(B)(i) of the Immigration and Nationality Act: age; health; family status; assets, resources, and financial status; and education and skills. Except for a deficient Form I-864 (where one is required), no single factor is decisive.

Age: When USCIS considers an applicant's age, it assesses the potential effect of age on the other statutory factors. Children generally are not expected to support themselves, so the employment, assets, resources, and financial status of their parents or guardians become especially important. For older applicants, USCIS officers should closely examine current and future employment plans. The policy guidance states that applicants who are "older, unable to work, and have limited financial resources" are "more likely than not to become a public charge at any time." If an applicant is retired, nearing retirement, or states that they have no work plans because of age, officers should assess their "retirement plans, accounts, benefits, and family assets and resources."

On health status, U.S. Citizenship and Immigration Services officers "must not make a medical diagnosis" and should instead rely on the medical examination report completed by a civil surgeon on Form I-693. A Class A health assessment result will cause the applicant to be denied admission on other health-related grounds of inadmissibility; a Class B health confirmation indicates the presence of a medical abnormality, which is relevant to assessing the applicant's ability to work, ability to support themselves, or need for extensive medical care or institutionalization. A medical examination report containing a Class B health confirmation should describe the nature and severity of the abnormality, the extent to which the applicant is unable to carry out normal daily activities, the degree to which the condition is treatable, and the likelihood that the applicant will need extensive medical care or institutionalization.

An applicant's disability alone is not enough to find that the applicant is likely to become a public charge. However, the policy guidance states that if an applicant "needs extensive medical care or institutionalization because of a disability or medical condition, is unable to work, and has limited financial resources, then the applicant is more likely than not to become a public charge at any time."

In addition, U.S. Citizenship and Immigration Services may consider evidence that the applicant has health insurance, provided the policy is sufficient to cover the applicant's expected medical costs. Officers may also evaluate any medical reports or other information the applicant submits.

Family status: USCIS must consider all members of the applicant's household. The following persons are treated as members of the applicant's household:

• the applicant;

• the applicant's spouse, if living with the applicant;

• the applicant's parents, if living with the applicant;

• the applicant's unmarried siblings under 21, if living with the applicant;

• the applicant's children, if living with the applicant;

• any other individual listed as a dependent on the applicant's federal income tax return; and

• any other individual who lists the applicant as a dependent on a federal income tax return.

The size of the applicant's household affects both the baseline for assessing family status and the assessment of the applicant's assets, resources, and financial status.

Assets, resources, and financial status: USCIS must consider the annual income of the applicant's household. This may include employment or self-employment income (including income earned without work authorization), alimony or child support, and cash benefits received (such as Social Security retirement benefits, government pension benefits, unemployment insurance, and veterans' benefits). Income from public benefits subject to a means test is not counted, nor is income from illegal activities or sources (such as illegal gambling or drug trafficking). Immigration officers may also weigh evidence of expected future income, such as a job offer or proof of a raise.

USCIS also considers the household's assets and resources, including funds in bank and retirement accounts, investments, home equity, vehicles, and other significant personal property. Household liabilities may include mortgages, car loans, secured and unsecured loans, alimony, and child support.

The applicant's household may include people who live with the applicant but do not necessarily provide financial support, as well as certain relatives who do not live with the applicant but do provide financial support. When assessing the applicant's assets, resources, and financial status, USCIS may also take into account financial support from these non-resident household members.

Education and skills: USCIS may consider "any degrees, certificates, licenses, educational credentials, and skills the applicant has obtained through work experience or educational programs." These may include "job skills, training, licenses for a particular occupation or trade, language skills (including English proficiency), and certificates showing proficiency in a skilled trade or completion of an apprenticeship."

USCIS may also assess the applicant's willingness and ability to work through their employment history, periods of unemployment, educational background, and employment prospects, "to determine whether the applicant has the skills needed to re-enter the labor market in the short term and earn enough income to maintain basic living." USCIS may therefore request evidence of expected employment, including a job offer stating an estimated salary.

If the applicant is the primary caregiver for the family, they may be unable to work outside the home and therefore lack a current or recent employment history. USCIS may give "positive consideration" to their unpaid contributions in caring for the family, which may offset shortcomings in education, skills, and lack of work experience.

8. USCIS Fee Waivers

In addition to the five statutory factors, receipt of means-tested benefits, and the affidavit of support, USCIS officers may consider any other relevant evidence, including "applying for, obtaining, or being approved for a fee waiver for an immigration benefit." This includes when the fee waiver was approved, the amount waived, and the basis for eligibility for the waiver. USCIS gives more weight to fee waivers the applicant obtained recently.

9. The Reduced Weight of the Affidavit of Support

Submitting a qualifying Form I-864 alone does not establish that the applicant has passed the public charge assessment. Rather, it is only a minimum requirement and one factor in a holistic analysis. After determining that the sponsor's income reaches 125% of the poverty line, USCIS officers must still focus on the other five statutory factors, specific circumstances, information, and evidence in the record.

10. Stricter Scrutiny of I-864 Sponsors

Even where the affidavit of support meets the minimum requirements, U.S. Citizenship and Immigration Services may still examine "whether the sponsor is genuinely willing to provide financial support to the applicant." To that end, immigration officers may weigh the following factors:

• the relationship between the sponsor and the applicant, and whether they live together or plan to live together;

• whether the sponsor provided the legally required amount of support when sponsoring any immigrant in the past or at present;

• the extent to which the sponsor's annual income and assets exceed 125% of the poverty line;

• whether the sponsor is currently receiving means-tested public benefits;

• whether the sponsor has ever applied for and obtained a fee waiver for an immigration benefit from USCIS; and

• the sponsor's financial history, including bankruptcy or a record of failing to meet financial obligations.

Public Charge Bonds Under the New Framework: By Invitation Only

If USCIS determines that an adjustment of status applicant is inadmissible as a "public charge" but is otherwise eligible, the agency may approve the application after the applicant pays a bond. However, before paying a public charge bond via Form I-945, the applicant must receive an invitation from an immigration officer. That invitation is typically issued only after USCIS formally serves a Notice of Intent to Deny (NOID) on Form I-485.

Immigration officers have broad discretion over when to exercise this option and how much bond to set. Under amended 8 C.F.R. § 103.6(c), the USCIS Policy Manual provides a framework for officers to set bond amounts and to handle bond maintenance, breach, and cancellation. The regulatory minimum bond amount is $1,000, but USCIS has authority to require a much higher amount based on the specific circumstances. The greater the likelihood that the applicant will become a public charge and the more public benefits expected to be received, the higher the bond amount. It should be noted that the Department of State has piloted its own public charge bond program for immigrant visas at certain consulates, operating under separate authority and procedures. Some applicants' bonds under that program have reportedly reached six figures.

USCIS will cancel and refund a bond if any of the following occurs: no breach within five years, the applicant naturalizes, the applicant dies, the applicant permanently departs, or the bond is replaced by an approved new bond. For bonds paid on or after September 18, 2026, a breach occurs if the bonded immigrant receives any means-tested public benefit before the bond is canceled.

The New Form I-485 and Instructions

Starting September 18, 2026, applicants must use the new version of Form I-485. The only public charge-related change is in Part 9, Question 63. That question no longer asks whether the applicant received Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), or state cash general assistance; instead, it asks: "Have you ever received any means-tested public benefit?" If the answer is "yes," a new Question 64 requires the applicant to list the specific name of each benefit received, the start and end dates, the amount received (if applicable), and the reason for receiving it.

The form instructions do not define the term "means-tested public benefit" and instead direct applicants to the public charge definition section of the USCIS Policy Manual. As for supporting documents submitted with Form I-485, the new instructions retain the language of the current form:

According to the form instructions, with one exception, applicants do not need to submit any initial supporting documents related to inadmissibility on public charge grounds when filing for adjustment of status. If USCIS needs more evidence to determine whether the applicant is inadmissible as a public charge, it will issue a Request for Evidence and evaluate all response materials submitted.

Adjustment of Status Is a Discretionary Decision

In a policy memorandum issued in May 2026, U.S. Citizenship and Immigration Services specifically emphasized that adjustment of status under Section 245 of the Immigration and Nationality Act is an administrative grace rather than a right. Although these two policies operate independently, together they give U.S. Citizenship and Immigration Services more opportunities to scrutinize applicants' financial circumstances closely.

The Consular Processing Channel

The Department of State operates under its own public charge definition. That definition appears in 9 Foreign Affairs Manual § 302.8 and is not directly bound by the Department of Homeland Security's interpretation. Although the Department of State has not amended the Foreign Affairs Manual in the past two years, a cable sent to all consulates in November 2025 greatly expanded the public charge-related factors and evidence consular officers must consider when adjudicating immigrant visa applications. The cable directs consular officers to remain "vigilant" during both immigrant and nonimmigrant visa processing and to refuse a visa application if the applicant cannot clearly establish that they will not become a public charge "at any time" after admission.

The cable requires consular officers to comprehensively review the applicant's personal, financial, medical, and family circumstances. The burden of proof rests entirely on the applicant, and consular officers may request any additional supporting documents they deem relevant. The cable directs consular officers to interpret the five statutory factors as follows:

• Age: Applicants who are elderly or under 16 must demonstrate a reliable plan for financial support. According to the guidance, immigration officers need to assess whether the applicant can work long enough to fund their own retirement and avoid costly long-term care expenses.

• Health status: For chronic illnesses or conditions with high treatment costs—including cardiovascular disease, diabetes, cancer, neurological disorders, or serious mental health problems—immigration officers must assess the applicant's ability to pay for lifetime care without resorting to public assistance. Officers should pay close attention to remarks written by the designated physician in the medical examination report or conditions noted in a Class B certification. However, officers may also consider health conditions beyond that list, such as whether the applicant appears obese, which has been listed as a potential risk factor for becoming a public charge. In addition, if the applicant plans to rely on employer-provided health insurance to cover these costs, the officer must assess whether the applicant can find and keep a job that offers such benefits. After the applicant retires, the officer must also assess how and whether they will be able to maintain that insurance.

• Family circumstances: The number of minor children, elderly parents, or dependents may become a significantly unfavorable factor for the applicant. Even if the applicant has no dependents to support, the immigration officer must assess their ability to care for themselves in old age and whether they can avoid entering a government-funded nursing facility.

• Assets and financial status: The applicant must demonstrate documented liquid assets sufficient to cover an interruption in income, a sudden medical condition, or the costs of long-term institutional care. Applicants should be prepared to explain how they plan to handle possible unemployment, major vehicle repairs, a sudden medical condition, or even an accident occurring "during a two-week trip to the Grand Canyon." Immigration officers are instructed to request bank records, retirement accounts, and life insurance, and to independently verify the authenticity of financial documents when appropriate.

• Education and skills: English proficiency has become a core consideration. According to the instructions, immigration officers must conduct interviews in English whenever possible. For applicants who do not speak English, officers must assess how long it would take them to reach fluency, because "a lack of the necessary English proficiency may raise doubts about whether the applicant can achieve or maintain self-sufficiency within a reasonable time after entering the United States." Officers must predict the applicant's likelihood of finding and keeping a job in the United States, whether their professional credentials will be recognized in the United States, and whether obstacles to re-obtaining professional licenses will hinder their employment.

• Use of public assistance: The immigration officer's consideration is not limited to whether the applicant has ever received benefits under the three federal means-tested benefit programs or a state general assistance program. They may also consider "any other form of public assistance, social welfare, or private charitable activity... intended to help low-income people... whether in the United States or in any country." The cable suggests that officers may consider not only the applicant's own possible use of benefits but also their dependents' use of benefits. ["Current or past receipt of public cash assistance... indicates that the applicant is or was unable to support themselves or their dependents and may become a public charge in the future."]

For applicants required to file Form I-864, the cable stresses that meeting the minimum income threshold is only a starting point. Immigration officers must closely examine the sponsor's stability, financial history, use of public benefits, and the genuineness of the relationship between sponsor and applicant. They must determine whether the affidavit of support can ensure that the applicant will avoid reliance on public assistance for the applicant's expected lifespan.

Joint sponsors will face stricter scrutiny, and officers are encouraged to verify their employment, assets, and residence. Officers must also investigate the sponsor's credibility—that is, 'the nature of the relationship between the applicant and [the sponsor]'—and whether the sponsor is genuinely willing to make income and assets available to the applicant. The National Visa Center's initial documentary review of Form I-864 is not binding on consular officers.

The practical effects of these sub-regulatory changes to public charge policy have not yet fully emerged. The reason is that, effective January 21, 2026, the U.S. Department of State has halted the issuance of all immigrant visas to nationals of 75 countries while it reassesses its public charge screening mechanism. At present, both this visa suspension and the change in the public charge determination standard are being challenged in Catholic Legal Immigration Network, Inc. v. Rubio (Case No. 1:26-cv-00858 (S.D.N.Y. 2026)).

Conclusion

DHS's July 2026 repeal of the public charge rule and the State Department's November 2025 cable together push public charge assessment back to a broad, discretionary, and deliberately vague standard. That standard is implemented through internal guidance rather than formal regulations or the Foreign Affairs Manual. DHS frames this as restoring the 'case-by-case' mechanism Congress originally envisioned and enforcing the self-sufficiency policy established in the 1996 law (which mandates Form I-864). In practice, however, it replaces policy predictability with discretion that is difficult to hold accountable, and it creates a strong 'chilling effect' on the use of benefits by family members who are U.S. citizens. Its practical effect—clearly one of this administration's goals—is likely to reduce family-based immigration (especially among low-income applicants) and lower participation in benefit programs that require asset testing.

Immigration practitioners need to prepare for these changes as soon as possible. Specifically, they should develop new checklists and screening forms, gather supporting documents to file with the revised Form I-485, and coach applicants on questions USCIS officers may ask during interviews.

In addition, practitioners need to conduct a comprehensive and systematic assessment of the applicant's financial situation and future prospects for self-sufficiency.

Before the new rule takes effect on September 18, 2026, this one-month window should be put to good use. At the same time, until the specific implementation details at local field offices become clearer, there is no need to overreact to these changes.