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In November 2025, both the Department of Homeland Security (DHS) and the Department of State (DOS) signaled changes to how the U.S. government will determine whether visa applicants or those seeking permanent residence are “likely to become a public charge.” While both agencies are moving toward a broader, more discretionary approach, their guidance reveals important similarities and differences that may affect immigrants, nonimmigrants, and their advocates.

DHS Proposed Rule: Rescinding the 2022 Regulations

On Nov. 19, 2025, DHS published a Notice of Proposed Rulemaking (NPRM) indicating its intent to rescind the 2022 public charge regulations. DHS plans to withdraw the 2022 rule, which narrowly defined public charge and limited the types of public benefits considered (mainly cash assistance and long-term institutionalization) because the agency believes it is inconsistent with congressional intent and too restrictive. Officers would be guided by both statutory “minimum factors” (age, health, family status, assets/resources, and education/skills) and any additional evidence relevant to an individual’s case showing self-sufficiency. The rule would apply to applicants for admission or adjustment of status within the United States (e.g., those filing Form I-485 with USCIS).

Key Points:

  • Restores Officer Discretion: DHS officers would once again consider the “totality of the circumstances,” not just a narrow set of benefits or factors.
  • Any Means-Tested Benefits: Officers may take into account any means-tested public benefit—not just cash assistance and long-term care—when assessing self-sufficiency.
  • No Bright-Line Rule: There are no fixed criteria; instead, each case is judged on its unique facts.
  • Statutory Minimum Factors: Age, health, family status, assets/resources, education/skills, and (when required) the Affidavit of Support.
  • Forward-Looking: The determination is prospective—whether the individual is likely to become a public charge at any time.

DOS Consular Guidance: Implementing Public Charge for Visa Applicants

It appears that DOS issued new guidance to consular officers around the world, updating the way they assess whether visa applicants –both immigrant and most nonimmigrant (temporary)– are “likely to become a public charge” under Immigration and Nationality Act (INA) section 212(a)(4). An unofficial copy of the cable dated Nov. 6, 2025, offers insight into how U.S. consular officers are being instructed to implement public charge policy. This guidance marks a renewed focus on self-sufficiency for both immigrant and nonimmigrant visa applicants and clarifies what evidence officers should evaluate during visa interviews.

Key Points:

  • Broad Applicability: Most visa categories are subject to public charge review unless they fall into specific exempt categories (as listed in 9 FAM 302.8-2(B)(6)).
  • Comprehensive Review: Consular officers must review all available evidence—petitions, interviews, medical reports, affidavits, financial and employment documents, and any record of public benefits use (domestic or abroad).
  • No Bright-Line Test: No single factor (except lacking a required Affidavit of Support) is dispositive; decisions must be based on the “totality of the circumstances.”
  • Statutory Minimum Factors: Same as DHS—age, health, family status, assets/resources, education/skills, and (when required) Affidavit of Support.
  • Benefit Use—Past and Present: Both cash benefits and long-term institutionalization in the U.S., as well as similar assistance received abroad, are relevant. Officers are also told to consider use of non-cash assistance (like food, housing, or private charity) as a possible indicator of future need, even if not strictly covered by regulation.
  • Burden of Proof: Rests entirely on the applicant to prove they are not likely to become a public charge.
  • Special Guidance for Affidavit of Support: While necessary for many family-based (and some employment-based) cases, a sufficient affidavit does not guarantee approval; the credibility and ability of the sponsor is also scrutinized.

Key Contrasts of Potential DHS Guidance and Recent DOS Guidance

  • Breadth of Evidence: DOS explicitly encourages officers to consider any evidence of need—public or private, U.S. or foreign. DHS’s proposal is less explicit about foreign aid but restores broad discretion, which might include such evidence.
  • Application Frequency: At consulates, even repeat nonimmigrant applicants (e.g., tourists) may face public charge review every time they apply. In the U.S., the focus is on admission or adjustment.
  • Documentation: DOS guidance makes clear that applicants must provide and, if requested, verify financial and other supporting documents. DHS’s proposed rule might require similar evidence, but details may come in future policy guidance.
  • Affidavit of Support: For DOS, even a technically sufficient affidavit is scrutinized for credibility and the sponsor’s financial reality. DHS’s approach is similar, but with less emphasis in the proposed rule on sponsor credibility.

Conclusion: Impacts on Applicants

Both DHS and DOS are moving to a more discretionary, case-by-case approach that looks beyond a narrow list of public benefits or financial factors. Applicants—whether seeking a green card in the United States or a visa abroad—may wish to document their financial stability, health, family situation, and employability in detail. Past use of any public assistance, even outside the United States, may be considered, though it is not automatically disqualifying.

The bottom line: Self-sufficiency is the touchstone, and officers at both DHS and DOS will have broad latitude to deny applications if they find an applicant is likely to become a public charge, based on the totality of the evidence.

Applicants should monitor for new interpretive guidance from DHS and updates to the DOS Foreign Affairs Manual as these policies evolve.

On July 20, 2023, U.S. Citizenship and Immigration Services (USCIS) updated its policy manual to make it easier for green card applicants to identify who may be considered inadmissible to the United States on the grounds that they are likely to become a public charge.

The new guidance is designed to enable applicants to respond accurately to questions on the public charge ground of inadmissibility on Form I-485, Application to Register Permanent Residence or Adjust Status.

 “Public charge” refers to an individual who is likely to become primarily dependent on the government for financial support. See our January 2023 blog post for factors that determine who falls under this category. U.S. immigration law includes this ground of inadmissibility that can disqualify certain applicants for a green card.

Under the new guidance, the following adjustment of status applicants are subject to the public charge ground of inadmissibility:

Family-Based Applicants:

  • Immediate relatives (spouses, children, and parents) of U.S. citizens
  • Unmarried children of U.S. citizens and their children
  • Spouses, children, and unmarried sons and daughters of Legal Permanent Residents
  • Married children of U.S. citizens and their spouses and children
  • Siblings of U.S. citizens
  • Fiance(e)s of U.S. citizens
  • Spouses, widows, or widowers of U.S. citizens
  • Amerasians based on preference category, born on or after Dec. 31, 1950, and before Oct. 22, 1982

Employment-Based Applicants:

  • Priority workers
  • Professionals with advanced degrees or noncitizens of exceptional ability
  • Skilled workers, professionals, and other workers
  • Investors

In addition, special immigrants such as religious workers, U.S. armed forces personnel, retired employees of international organizations, and others are also subject to the public charge ground of inadmissibly.

For the full list, please see Volume 8, Part G, Chapter 3 of the USCIS Policy Manual.

USCIS has published a new Form I-485 with additional public charge questions required for use starting Dec. 23, 2022. When a nonimmigrant foreign national applies for an adjustment of status (AOS) to lawful permanent resident (Green Card holder), USCIS must determine whether that applicant is inadmissible on the grounds of being “likely at any time to become a public charge” unless exempt from this rule. See USCIS Public Charge Resources. A public charge determination is based on someone’s likelihood of becoming primarily dependent of the U.S. government for subsistence, typically through public cash assistance or long-term institutionalization at the government’s expense. Specifically, USCIS considers an applicant’s receipt of past and/or current public cash assistance including Supplement Security Income (SSI); Temporary Assistance for Needy Families (TANF) program; and state and local cash assistance programs (General Assistance programs) as well as whether the applicant has been institutionalized in a facility such as a nursing home or mental health institution when making a public charge ground of inadmissibility determination. USCIS does not generally consider noncash benefits (except institutionalization), or special-purpose cash assistance not intended for income maintenance when making public charge determinations nor will the agency consider benefits related to COVID-19 relief. See Id. If an applicant is found likely to become a public charge, USCIS can deny the AOS application.

In accordance with the requirements of the new Public Charge Final Rule, which went into effect Dec. 23, 2022, USCIS has required that all Applications to Adjust Status (Form I-485) filed on or after Dec. 23, 2022, use the latest edition of the form. The latest edition of the form, dated Dec. 23, 2022, includes additional questions responsive to the Final Rule.

When a nonimmigrant foreign national applies for an adjustment of status (AOS) to that of lawful permanent resident (Green Card holder) USCIS must determine whether that applicant is inadmissible on the grounds of being “likely at any time to become a public charge” unless exempt from this rule.[1] A public charge determination is based on an individual’s likelihood of becoming primarily dependent of the U.S. government for subsistence typically through public cash assistance or long-term institutionalization at the government’s expense. Specifically, USCIS considers an applicant’s receipt of past and/or current public cash assistance including Supplement Security Income (SSI); Temporary Assistance for Needy Families (TANF) program; and state and local cash assistance programs (General Assistance programs) as well as whether the applicant has been institutionalized in a facility such as a nursing home or mental health institution when making a public charge ground of inadmissibility determination. USCIS does not generally consider noncash benefits (except institutionalization) or special-purpose cash assistance not intended for income maintenance when making public charge determinations, nor will the agency consider benefits related to COVID-19 relief.[2] If an applicant is found to become likely to be a public charge, USCIS can deny the AOS application.

The updated Form I-485 contains approximately two pages of additional questions related to the applicant’s household size, income, and liabilities as well as the applicant’s education and skills such as certification, licenses, and work experience, etc.[3] Please contact your GT immigration attorney with any questions regarding the Public Charge Final Rule and the latest edition of the Form I-485.

[1] See USCIS.gov, Green Card Processes and Procedures – Public Charge Resources.

[2] Id.

[3] Id.

On March 9, 2021, the Supreme Court dismissed several pending appeals over the “Public Charge Rule” following the Biden administration’s announcement that it would not defend the Trump-era regulation, issued in 2019, which dramatically increased scrutiny of assessment of public charge inadmissibility. In response, U.S. Citizenship and Immigration Services (USCIS) announced on March 9, 2021, that applicants and petitioners were no longer required to provide information of public benefits and financial standing required solely by the Public Charge Rule for the benefit of a “totality of the circumstances” test assessing whether prospective immigrants were likely “at any time” to be a public charge.

Applicants for adjustment of status are therefore no longer required to provide Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485, Application to Adjust Status. This includes evidence of household assets and liabilities and applicants’ credit report, health insurance, education documentation, professional licenses and formal English education as well as information regarding receipt of public benefits. Similarly, applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status are no longer required to provide information related to the receipt of public benefits. USCIS will also cease applying the Public Charge Rule to pending applications for adjustment of status and applications/petitions for extension of nonimmigrant stay and change of nonimmigrant status adjudicated on or after March 9, 2021. In the case of pending Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) due on or after March 9, 2021, USCIS will no longer require information and documentation relating to the Public Charge Rule. However, the aspects of the RFE or NOID that otherwise pertain to eligibility for the immigration benefit sought must still be addressed.

Following abandonment of the Public Charge Rule, USCIS has reverted to solely applying the 1999 Interim Field Guidance to applicants for adjustment of status, which provides a less restrictive definition of a “public charge” as someone primarily dependent on the government for public cash assistance for income maintenance or institutionalization for long-term care at government expense. USCIS is therefore no longer considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.

The Public Charge Inadmissibility Final Rule was issued in August 2019 and was to go into effect October 2019, when a preliminary injunction with national scope was granted that prevented the Department of Homeland Security from implementing the rule. On Jan. 27, 2020, the Supreme Court stayed the national injunction, and DHS may now implement the rule, except in the state of Illinois. Continue Reading USCIS Revises Forms in Response to Public Charge Inadmissibility Final Rule

As an update to previous entries, the Office of Management and Budget has posted the conclusion of DHS/USCIS Public Charge Rule review:

Department of Homeland Security

AGENCY: DHS-USCIS RIN: 1615-AA22 Status: Concluded
TITLE: Inadmissibility on Public Charge Grounds
STAGE: Final Rule ECONOMICALLY SIGNIFICANT: Yes
RECEIVED DATE: 07/12/2019 LEGAL DEADLINE: None
** COMPLETED: 07/31/2019 COMPLETED ACTION: Consistent with Change

As further previously reported on this blog, the Department of Justice awaits conclusion of OMB review of the rule as to certain matters under its jurisdiction, but today’s action moves DHS closer to issuance of a final Public Charge rule.  This proposed rule is highly controversial and is expected to generate opposition upon issuance.

For more on the Office of Management and Budget (OMB), click here.

On July 12, the Department of Homeland Security (DHS) completed review and forwarded a final rule on a Public Charge rule to the Office of Management and Budget (OMB).

This action follows action last week as reported here wherein the Department of Justice completed review and forwarded aspects of a Public Charge final rule within its jurisdiction to OMB.

AGENCY: DHS-USCIS RIN: 1615-AA22 Status: Pending Review
TITLE: Inadmissibility on Public Charge Grounds
STAGE: Final Rule ECONOMICALLY SIGNIFICANT: Yes
** RECEIVED DATE: 07/12/2019 LEGAL DEADLINE: None

For complete reporting on the Public Charge rule please see here.

Please consult your GT attorney with specific questions and check back as this matter will be updated as information becomes available.

For more on the Office of Management and Budget (OMB), click here.

On July 3rd, the Office of Management and Budget (OMB) posted receipt of a “public charge” rule from the Department of Justice (DOJ)-

AGENCY: DOJ-EOIR RIN: 1125-AA84 Status: Pending Review
TITLE: Inadmissibility and Deportability on Public Charge Grounds
STAGE: Proposed Rule ECONOMICALLY SIGNIFICANT: No
RECEIVED DATE: 07/03/2019 LEGAL DEADLINE: None

While the text of the rule is not public, it is expected to be a companion rule similar to a Department of Homeland Security rule published for public comment in October 2018.

It is believed that the strict adherence to the public charge rule could greatly expand persons who could be deported for using public benefits, such as public welfare, food stamps or other social services without an ability to pay themselves or by their sponsors.

Current law allows deportation of immigrants that receive government social benefits within five years of U.S. arrival but the government has not made great use of the deportation method in recent years.

For more on the Office of Management and Budget (OMB), click here.

USCIS has proposed rules that could deny entry to non-immigrants seeking admission to the United States and adjustment of status to permanent residence to immigrants if they rely on public benefits for food, housing or medical care, and other forms of public assistance. The proposed rule – “Inadmissibility on Public Charge Grounds” – is published in the Federal Register. The public may comment on the proposed rule during the 60-day comment period ending on Dec. 10, 2018. USCIS will review comments to the proposed rule and then revise and issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.

Pursuant to Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”

Under 8 U.S.C. § 1601 (PDF)(1), “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

Further under 8 U.S.C. § 1601 (PDF)(2)(A), “It continues to be the immigration policy of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”

While self-sufficiency has been the guiding principle of U.S. immigration law, as indicated in the above federal regulations, “public charge” has not been defined in statute or regulations. According to USCIS, there has been insufficient guidance on how to determine if an alien who is applying for a visa, admission, or adjustment of status is likely at any time to become a public charge. In determining inadmissibility USCIS has used the definition of “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” (See, “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, USCIS considers several factors, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

The proposed rule will apply to foreign nationals seeking admission to the United States on non-immigrant and immigrant visas, as well as those non-immigrants who have availed themselves of public benefits within the United States and are seeking to seeking to either extend their stay or change their status. Under the proposed rule, USCIS would only consider the direct receipt of benefits by the individual alien applicant. Receipt of benefits by dependents and other household members would not be considered in determining whether the alien applicant is likely to become a public charge.

Factors that would generally weigh heavily in favor of a finding that an individual is likely to become a public charge include the following:

  • The individual is not a full-time student and is authorized to work, but cannot demonstrate current employment, has no employment history, or no reasonable prospect of future employment;
  • The individual is currently receiving or is currently certified or approved to receive one or more of the designated public benefits above the threshold;
  • The individual has received one or more of the designated public benefits above the threshold within the 36 months immediately preceding the alien’s application for a visa, admission, or adjustment of status;
  • The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to support himself or herself, attend school, or work, and the alien is uninsured and has no prospect of obtaining private health insurance; or
  • The individual has previously been found inadmissible or deportable based on public charge.

Alternately, factors that would weigh strongly against a finding that a foreign national is likely to become a public charge include:

  • The individual has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size; or
  • The individual is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size.

This proposed rule could have wide-reaching effects on legal immigration to the United States. The rule proposes not only to define “public charge” and the factors to be considered in making current and prospective public charge determinations, but also to add requirements for “public charge bonds” for certain applicants who are more likely to become a public charge. It is important for interested parties to comment on this proposed rule by the Dec. 10, 2018 deadline.

The U.S. State Department has announced a temporary halt on immigrant visa processing for applicants from 75 countries, effective Jan. 21, 2026. This pause comes as the department reassesses its vetting procedures under existing immigration law, specifically focusing on the public charge rule — a determination of whether an applicant is likely to require long-term financial or healthcare support from the U.S. government.

Who Does This Impact?

The full list of 75 countries comprises Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Dominica, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan, and Yemen.

Why the Pause?

The directive aims to prevent the entry of foreign nationals deemed likely to rely on U.S. welfare or public benefits. This move follows increased scrutiny of public charge rules and broader immigration policy changes under the current administration.

Key Points for Applicants and Employers

  • The government will pause visa decisions starting Jan. 21, 2026.
  • Applicants from affected countries may be able to expect delays and should consider alternative strategies.
  • Employers relying on foreign talent may need to adjust timelines and explore contingency plans.

What Happens Next?

The State Department may release more details soon. For now, applicants and businesses should stay informed and may wish to consult with immigration counsel to navigate this evolving situation.