United States: DHS Initiates Rulemaking on Public Charge
November 4, 2025
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At a glance
- A Department of Homeland Security (DHS) proposed rule that would revise the public charge regulation applicable to adjustment of status applicants and nonimmigrants has been submitted to the Office of Management and Budget (OMB) for review – the first step in the federal rulemaking process.
- The exact content of the new proposed rule is not yet known, including whether it is the same or similar to a 2019 public charge rule that expanded the types of public benefits acceptance of which might negatively impact an adjustment applicant and required detailed financial information and documentation from all adjustment of status applicants and new requirements from some nonimmigrants. The rule was in effect for about a year, then invalidated by a court, and replaced with a new, more limited DHS public charge regulation in December 2022.
- When the proposal clears federal review, it will be published in the Federal Register for public feedback. The rule will not take effect unless and until it passes through the entire OMB rulemaking process, which typically takes several months.
The issue
The Department of Homeland Security (DHS) is seeking federal review of a proposed rule that would revise the public charge regulation applicable to adjustment of status applicants and nonimmigrants, which has been in effect since December 2022. Details of the new rulemaking proposal are confidential until publication in the Federal Register, so it is not yet known whether DHS will propose to revive a sweeping and significant public charge regulation that was implemented for about a year during the first Trump Administration.
Public charge is a statutory ground of inadmissibility that applies to all adjustment of status applicants and some nonimmigrants in certain circumstances. The Immigration and Nationality Act does not define “public charge” but requires a totality test of certain factors to determine if a foreign national is likely to become a public charge of the government. If deemed likely, the government can deny the immigration benefit or status sought by the foreign national.
In 2019, during the first Trump Administration, DHS issued a broad public charge regulation that expanded the possible class of individuals deemed likely to become a public charge, and required a significant amount of detailed financial information and documentation from all adjustment of status applicants (including all employment-based adjustment applicants) as well as public charge-related attestations from nonimmigrants seeking a change of status or extension of stay within the United States. The 2019 public charge rule took effect in February 2020 and was the subject of a string of judicial rulings that resulted in a back and forth of DHS’s authority to enforce it. The rule was ultimately invalidated in March 2021 and replaced with a new, more limited public charge regulation by the Biden Administration; that rule took effect in December 2022.
A closer look
Under the current public charge rule and adjustment of status application form, adjustment applicants are required to provide information on their assets, liabilities, resources, and receipt of certain public benefits, but are not required to provide credit history information and detailed financial documentation, as the 2019 Trump-era regulation had mandated.
Currently, receipt of Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) cash assistance for income maintenance, and state and local cash assistance for income maintenance may be considered in the public charge totality test in order to determine a foreign national’s likely dependence on the government. DHS may also consider long-term institutionalization at government expense as a relevant public benefit (including Medicaid used for this purpose in certain circumstances), as well as other forms of government-financed institutionalization. Other government assistance is not considered to be relevant public benefits under the current public charge rule.
The 2019 Trump-era public charge rule had an expanded the list of covered benefits that could be considered in the public charge totality test, including the Supplemental Nutritional Assistance Program (SNAP), a broader range of Medicaid benefits, and certain other federal non-cash benefits related to housing.
What’s next for the proposal
The federal rulemaking process typically takes several months or more. DHS’s public charge rule proposal is now undergoing review at the Office of Management and Budget (OMB). OMB generally has 90 days to review the regulation but could take more or less time to do so. When the proposal clears OMB review, it will be published in the Federal Register for public feedback during a period that lasts either 30 or 60 days. DHS is required to give meaningful review to public comments, though there is no minimum or maximum period for this stage of review. After the text of the rule is finalized, it will be published in the Federal Register with an implementation date, which typically falls 30 or 60 days after publication.
Comments from the business community will be important to make the Administration aware of the rule’s impact, especially for companies that experienced the impact of the 2019 public charge rule. If your organization wishes to comment on the proposed rule after it is published, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
