Broader Discretion, Higher Stakes: How DHS’s New Public Charge Rule Reshapes Green Card Adjudication

To qualify for adjustment of status (a green card), an individual must show, barring some exceptions, that they are “admissible” to the United States. Most people have heard of common grounds of inadmissibility such as certain criminal convictions, or fraud related conduct. Recently, however, this administration has made a lesser-known ground of inadmissibility one of the main focuses in adjudicating applications for adjustment of status. That ground is commonly referred to as the “public charge” ground of inadmissibility. Generally, an individual must show that they are not likely to become a “public charge.” In other words, the individual must show they are not likely to rely on the government for basic needs and support. In the past, generally, this was established by the filing of an Affidavit of Support (I-864) from either the petitioner or a joint financial sponsor showing sufficient income to support the applicant to ensure he or she will not be likely to rely on these types of government benefits.

On July 16, 2026, DHS published a final rule significantly changing how USCIS will adjudicate adjustment of status applications in regard to the likelihood of someone becoming a public charge. The new rule goes into effect on September 18, 2026, and will apply to all adjustment applications filed on or after that date. The rule overturned the prior regulations that outlined how USCIS determined whether someone is likely to become a public charge and removes the prior framework for making these determinations. Now, there is not a clear framework for these determinations outside of the minimum statutory factors.

The statute outlines minimum factors that still must be considered when making this determination, which include:
(1) age;
(2) health;
(3) family status;
(4) assets, resources, and financial status; and
(5) education and skills.

Under the new rule, USCIS will utilize a “totality of the circumstances” approach to weigh how prior use of public benefits, including benefits that the person obtained lawfully and was eligible to receive, impacts a determination of public charge. This drastically expands an officer’s discretion in a public charge determination and will likely cause adjudications to vary widely based on the USCIS office and individual officers.

The former rule only looked at specific government benefits (cash assistance and long-term institutionalized care) in the public charge analysis. The new rule allows officers to conduct a broad review of all means-tested benefits when conducting a public charge determination, which can include CHIPS, WIC, housing assistance, school lunch program, Head Start, Earned Income Tax Credit (EITC), Child Tax Credit (CTC), and the American Opportunity Tax Credit and numerous other benefits.

Importantly, the rule does not prevent consideration of a noncitizen’s family members’ lawful use of any government benefit. For example, a noncitizen parent filing to adjust status whose U.S. citizen child receives public benefits can be impacted if USCIS determines the child’s use of government benefits has an impact on the “assets, resources, and financial status of the noncitizen.” This will not be the only factor considered in the analysis but can be used in conjunction with other factors.

The rule also allows USCIS to review any individualized factor specific to the case and “any empirical data relevant to a [noncitizen’s] self-sufficiency.”* These concepts are not further explained in the rule, and it remains to be seen how these factors will be analyzed. Documentation and information of a noncitizen’s skills, education, and prior lawful work history should also be considered as factors in a determination as to whether a noncitizen will be able to financially support themselves in the future.

While USCIS may continue to use an Affidavit of Support as a factor, it is not required to rely on an Affidavit of Support when making a public charge determination and will likely look at the other factors listed above in addition to an Affidavit of Support. The rule makes clear that an officer is not required to consider the Affidavit of Support at all, and it will be in the officer’s discretion whether or not to do so.

For adjustment of status applications filed on or after September 18, 2026, it is important to do a thorough review of all government benefits that the noncitizen and his or her family members have received, including U.S. citizen family members. Noncitizen families should ensure to keep all documentation related to any benefits received in order to assist in a well-prepared application. It is also important to document the noncitizen’s qualifications, skills, and any educational degrees to establish that he or she will be able to financially support themselves.

This article serves to provide general information on the new public charge rule. An experienced immigration attorney should be consulted for any case-specific questions. Global Immigration Legal Team is always available to prepare adjustment of status applications and supporting evidence in light of the new public charge rule. If you need specific assistance in an adjustment of status application, please feel free to contact Taylor or call our office at (610) 975-4599 to schedule a consultation today.

Be sure to mention this article when reaching out for your consultation.

*91 Fed. Reg. at 45325.