DHS Issues New Framework for Public Charge Determinations

 

Effective September 18, 2026, U.S. Citizenship and Immigration Services (“USCIS”) officers will have broader discretion when determining whether an applicant for permanent residence is likely to become a “public charge”—and therefore may be inadmissible to the United States.

Under the current framework, USCIS generally considered whether an applicant was likely to become primarily dependent on the government for subsistence, as demonstrated by the receipt of certain cash assistance for income maintenance, such as Supplemental Security Income (“SSI”), or long-term institutionalization at government expense.

Under the new framework, USCIS officers will conduct a broader “totality of the circumstances” analysis to determine whether an applicant is likely to become a public charge. Officers may consider a range of factors, including the applicant’s:

  • Age;

  • Health;

  • Family status;

  • Financial status, including income, assets, and resources;

  • Education and skills; and

  • Past receipt of means-tested public benefits.

The scope of benefits that USCIS may consider is significantly broader than under the current framework and may include certain state-subsidized health-care benefits and need-based financial assistance for higher education.

The new framework places greater emphasis on whether an applicant is likely to remain financially self-sufficient in the future. Although a Form I-864, Affidavit of Support, will continue to be required in most family-based cases, submission of a sufficient Affidavit of Support will not, by itself, establish that an applicant is unlikely to become a public charge. USCIS may consider the Affidavit of Support together with the applicant’s other circumstances. When an applicant relies on a joint sponsor, USCIS may also examine the relationship between the applicant and the joint sponsor when assessing how likely the sponsor is to provide financial support.

Who Is Exempt?

Certain applicants will continue to be exempt from the public charge ground of inadmissibility, including refugees, asylees, and certain applicants under the Violence Against Women Act (“VAWA”), among others. A more complete list of exemptions is available here.

New Form I-485 Takes Effect September 18

A new edition of Form I-485, Application to Register Permanent Residence or Adjust Status, will take effect on September 18, 2026, with no grace period for use of the current edition.

The revised Form I-485 asks applicants whether they have ever received “any means-tested public benefit.” Applicants who answer yes must provide additional information regarding the benefit received, including the type of benefit, dates received, amount, and reason for receiving it.

Applicants filing Form I-485 on or after September 18 should therefore carefully review their history of receiving public benefits before completing the new form.

Public Charge Bonds

If USCIS determines that an applicant is likely to become a public charge, the applicant may, in certain circumstances, be given an opportunity to post a public charge bond rather than have the application denied on public charge grounds.

The bond serves as a financial guarantee intended to protect the government if the individual subsequently receives certain public benefits. USCIS will determine the amount of the bond based on the applicant’s individual circumstances and its assessment of the potential amount of government assistance the applicant may receive during the applicable period. If USCIS permits the posting of a bond and the applicant satisfies the bond requirements, the public charge ground of inadmissibility may be overcome.

We will monitor the implementation of the new rule, and provide updates as they become available.

This alert is for informational purposes only. Please contact us if you would like to discuss these developments further.

 
Nadia Yakoob