What’s Happening
The Department of Homeland Security (DHS) has issued a proposed regulation that would rescind the 2022 Biden Administration Public Charge Rule governing adjustment of status applications for green cards. In its place, DHS intends to rely on policy guidance - rather than a new regulation - to implement a substantially broader public charge framework. If finalized, the rescission would pave the way for a more expansive interpretation of the statutory public charge ground of inadmissibility, lowering the threshold for findings of likely public charge and significantly widening the range of benefits and circumstances considered during adjudications. The rule is currently open for a 30-day public comment period, until December 19, 2025.
“Public charge” is a U.S. immigration term used to describe someone who is likely to depend mainly on government assistance for income or long-term care and serves as a ground of inadmissibility that immigration officials may rely upon when deciding to approve or deny certain immigration benefits.
What You Need to Know
Purpose and Context of the Proposed Rescission
DHS grounds the proposed rescission in the 1996 welfare reform statute, arguing that both the 2019 and 2022 public charge regulations, passed during the first Trump Administration and the Biden Administration respectively, constrained the government’s ability to fully assess whether an individual may become dependent on public support. According to DHS, reliance on regulation has limited the agency’s ability to adjust policy in response to evolving benefit programs, public health conditions, and economic circumstances. The agency therefore intends to revoke the existing rule and replace it with internal guidance documents and evaluation tools that will offer broader discretion in applying the statutory standard.
This proposal follows reports that the Department of State (DOS) has already instructed consular posts to adopt a more comprehensive public charge analysis abroad, signaling a coordinated, government-wide intention to focus on a much broader set of factors when making a public charge admissibility determination.
Background on the Public Charge Framework
Public charge is a long-standing statutory ground of inadmissibility applicable to all adjustment of status applicants and, in limited circumstances, certain nonimmigrants. The Immigration and Nationality Act (“INA”) does not define the term “public charge” but requires officers to consider a series of statutory factors including age, health, family status, financial circumstances, and education and skills, in assessing the likelihood that an individual will become dependent on government support.
The concept has undergone substantial regulatory fluctuation in recent years. DHS issued a far-reaching public charge regulation in 2019 during the first Trump Administration, expanding the definition of public charge, increasing documentation requirements, and incorporating the receipt of certain non-cash benefits that had historically been excluded from the public charge analysis. That rule was repeatedly litigated and ultimately vacated in 2021. The Biden Administration replaced it with a narrower regulation that took effect in December 2022, limiting consideration primarily to cash assistance for income maintenance and long-term institutionalization at government expense. The newly proposed rescission would dismantle that framework and enable DHS to adopt a more expansive approach.
Key Policy Shifts DHS Plans to Implement
If the rescission is finalized, DHS intends to issue new guidance that would fundamentally change how public charge determinations are made. Among the most consequential shifts are:
Lower threshold for a public charge finding: under the expanded framework, DHS would no longer evaluate whether a person is likely to become primarily dependent on government support. Instead, adjudicators would assess whether an applicant is likely to become “dependent on public resources to meet their needs,” a significantly lower and more flexible standard.
Broader set of factors and evidence: the new policy would authorize officers to weigh any information relevant to the likelihood of future reliance on public resources - not just the statutory factors or those currently included in regulation. This would allow far more individualized, open-ended inquiries.
Consideration of a wider range of public benefits: DHS intends to consider the application for, approval of, or receipt of any public benefit - regardless of type - as part of a public charge review. This includes numerous programs not considered under the current rule or the prior 2019 regulation, such as nutrition assistance (including SNAP), all Medicaid programs, housing benefits, CHIP, and benefits related to vaccination or communicable disease testing. Applications for or approval of benefits may be weighed negatively even if the individual never actually received the benefits.
Dependents’ benefits included: benefits received, applied for, or approved on behalf of an applicant’s dependents may be considered in the applicant’s public charge assessment. This marks a significant departure from the existing rule, which limits consideration only to benefits received by the applicant.
DHS emphasizes that the mere receipt of a means-tested benefit would not automatically result in a negative finding and that adjudications involving applicants with disabilities would comply with the Rehabilitation Act. However, the policy would give officers broad latitude to weigh circumstances surrounding benefit use and additional discretion in whether such factors supported an inadmissibility finding based on public charge grounds.
Implications for Adjustment Applicants and Employers
If finalized, the new approach will likely result in more detailed inquiries during adjustment of status adjudications, even though DHS states that revisions to the adjustment of status form (Form I-485) will focus primarily on the existing statutory factors. In practice, applicants may face increased requests for evidence (“RFEs”) concerning household finances, benefit history, medical conditions, and broader circumstances indicating financial stability or risk of dependency.
Employment-based adjustment applications, previously minimally affected under the 2022 framework, may experience heightened scrutiny under the broader standard, particularly regarding household resource assessments and any prior interaction with public benefit programs by the applicant or their dependents.
What’s Next
Public comments will be accepted for 30 days from publication, until December 19, 2025. DHS may revise aspects of the proposal based on public feedback, and a final rule could be published shortly after the comment period ends. Litigation is possible, given the scope of the proposed policy shift and its implications.
D&S is continuing to monitor this developing situation and will provide updates as they become available.