The Department of Homeland Security has finalized a rule that expands the factors USCIS officers may consider when evaluating whether green card applicants will become a “public charge.” The new final rule restores the broader discretion USCIS had during the first Trump administration, so that officers can conduct case-by-case reviews that consider an applicant’s age, health, family status, assets, financial resources, education, skills and whether the person has received means-tested taxpayer-funded benefits.
What changed
The Biden-era rule, issued in 2022, limited the benefits DHS could consider to primarily cash welfare payments meant to cover basic living expenses and long-term institutional care paid for by the federal government. Under the new rule, those benefits can include food stamps, Medicaid and even housing assistance.
The rule is expected to be filed for public inspection Thursday and is slated to take effect early next week. For applications filed before the rule goes into effect, USCIS officials say they will only assess means-tested public benefits received on or after that date.
Importantly, USCIS officials told CBS News that benefits received by an applicant’s family members will not be treated as the applicant’s own, though officers may still consider them when assessing the applicant’s finances. For instance, those benefits may factor in if they suggest the applicant cannot financially support the household or if the benefits are helping to support the applicant.
Why it matters
The public charge test has long-standing roots in immigration law, but its scope has shifted with administrations. The public charge test has been enshrined in U.S. immigration law for generations, but the high-profile battle over which benefits should be considered has bubbled over in recent years. Prior to the first Trump administration, DHS followed 1999 guidance that defined a public charge as someone “primarily dependent on the government for subsistence,” and officers generally focused on cash welfare and long-term government-funded institutional care instead of benefits like Medicaid, food stamps, or housing aid.
For practitioners advising clients on green card eligibility, this rule significantly broadens the universe of evidence officers may use to make unfavorable determinations. Applicants who have received even temporary assistance with food, medical care, or housing now face increased risk during adjudication.
In that same proposal, DHS determined that changes to the public charge policy could create a “chilling effect,” leading about 950,000 people in immigrant households to disenroll from or forgo public benefits altogether. The final rule could simply make food, health and housing assistance feel too risky on the tenuous path to permanent legal status in the United States.
Way forward
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Review past benefit use with clients. Determine whether your client or any household member has received SNAP, Medicaid, housing vouchers (Section 8), or other means-tested assistance. Document the dates, amounts, and reasons for receipt.
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Strengthen the financial narrative. If benefits were received, prepare affidavits, tax returns, bank statements, and employment letters that show current financial independence and ability to support the household without future reliance on public assistance.
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Consider the I-864 sponsor. Ensure that Form I-864 (Affidavit of Support) reflects a sponsor with substantial income and assets that clearly exceed 125% of the federal poverty guideline for the household size.
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Monitor the effective date. Track when the rule officially takes effect and confirm which applications will be subject to the new criteria. Those filed before the effective date should still be evaluated under the prior standard (1999 guidance).
Disclaimer
This article is for informational purposes only and does not constitute legal advice. We are a software company, not a law firm. Immigration law is complex and changes frequently. You should consult with a licensed immigration attorney to understand how this rule may apply to your specific situation and to obtain personalized legal advice. The policy described here may be subject to legal challenge or modification. Verify all details against the primary source materials and current agency guidance before relying on them in an immigration matter.