United States: New USCIS Public Charge Policy Guidance – What Foreign Nationals and Employers Need to Know

The Immigration and Nationality Act (INA) has long permitted the government to find a foreign national inadmissible to the United States if the government determines the foreign national is likely at any time to become a “public charge.” There is no definition of public charge in the INA. Under the Biden-era 2022 public charge rule, the term was interpreted to mean a person likely to become primarily dependent on the U.S. government through receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.  

The new guidance directs adjudicating officers to determine whether an adjustment of status applicant is likely to become dependent on the government to meet their basic needs (for example, shelter, food, or healthcare), i.e., whether they are likely at any time to depend on any means-tested public benefit. A benefit is generally considered to be means-tested if eligibility for the benefit is determined based on the applicant’s income or assets falling below a certain threshold.

The new policy expands the types of benefits and factors that may be considered and grants wider discretion to USCIS officers in making a public charge determination.

The INA requires that USCIS officers, at a minimum, consider several factors in public charge review – the foreign national’s age; health; family status (generally meaning household size); assets, resources, and financial status; and education and skills, as well as a Form I-864 affidavit of support, where required (generally for family-based adjustment applications). Under the Biden-era and prior public charge frameworks, USCIS could only consider a narrow set of public benefits when making a public charge determination: cash assistance for income maintenance and the receipt of public benefits for long-term institutionalization.

The new policy will permit officers not only to consider these enumerated factors and public benefits, but to also consider any mean-tested benefit, whether cash or non-cash, as well as nearly any factor in the foreign national’s record the officer deems relevant to public charge, such as the adjustment applicant’s willingness and ability to work, or their role as the caregiver of a household member, among others.

According to USCIS, no one factor in a public charge review is determinative (except for lack of a sufficient Form I-864, where required); public charge review will continue to be a prospective totality of the circumstances analysis.

However, due to the high degree of discretion accorded to adjudicators under the new policy, interpretations may vary widely from case to case.

Under the new framework, any mean-tested public benefit sought or received on or after September 18, 2026 can be considered in a public charge analysis, whether cash or non-cash. Means-tested public benefits sought or received prior to September 18 that are covered under the Biden-era public charge regulation – meaning cash assistance for income maintenance or benefits for long-term institutionalization – will continue to be considered in public charge review. A public benefit is generally considered to be means-tested if eligibility for the benefit is determined based on the applicant’s income or assets falling below a certain threshold.

Some examples of non-cash, means-tested public benefits that may newly be considered for public charge include: Medicaid, including for pregnant women and children; Supplemental Nutrition Assistance Program (SNAP); Children’s Health Insurance Program (CHIP); and Women, Infants, and Children program (WIC).

According to USCIS, however, any newly covered means-tested public benefit sought or received after September 18 will be reviewed in the full context of the foreign national’s personal circumstances and the other public charge factors in order to determine how impactful the benefit may be to the applicant’s overall self-sufficiency.

Earned benefits such as Title II Social Security and Medicare benefits, government pension benefits, unemployment insurance benefits, and veterans’ benefits will continue to be excluded from consideration under the new public charge policy because they are not means-tested.    

The new public charge framework will only be applied to adjustment applications postmarked or electronically submitted on or after September 18, 2026. Applications submitted before that date will continue to be reviewed and adjudicated under the prior public charge standard.

The new policy is scheduled to take effect on September 18. Foreign nationals planning to submit adjustment of status applications on or after September 18 should familiarize themselves with the newly covered means-tested benefits and the overall public charge framework and consult with immigration counsel to determine whether, in light of the facts of their particular case, any aspects of the new framework may require further explanation in their adjustment of status application.

Prospective adjustment applicants should also be aware that the broad discretion given to adjudicators under the new policy could result in inconsistent application of the new public charge standard and inconsistent evidentiary requests. Applicants may receive varying levels of Requests for Evidence or no request at all based on the same facts presented to different USCIS officers. Fragomen will monitor the level of USCIS consistency in the months following implementation of the new public charge policy, and issue further guidance as appropriate.

It is possible that the new public charge policy will be challenged through litigation. Fragomen would closely monitor any litigation activity and provide updates.