DHS Rescinds 2022 Public Charge Rule; New Discretionary Framework and New Form I-485 Required on Sept. 18, 2026

The Department of Homeland Security (DHS) has issued a final rule officially rescinding the 2022 Biden-era regulation regarding public charge determinations.   The now-rescinded Biden-era regulation restricted which public benefits DHS could consider, limiting officers’ ability to review all relevant factors as intended by Congress. With this final rule, USCIS officers are instructed to evaluate all pertinent facts and make individualized, case-by-case public charge inadmissibility determinations.

Key Changes Under the 2026 Rule

• Effective Date: The rule will officially take effect on Sept. 18, 2026.

• Mandatory New Form I-485: To implement these changes, USCIS will publish a revised Form I-485, Application to Register Permanent Residence or Adjust Status. Older versions of Form I-485 postmarked or submitted electronically on or after Sept. 18, 2026, will not be accepted.

• Removal of the “Primary Dependence” Standard: The 2022 rule defined a public charge as someone primarily dependent on the government for subsistence. The new rule removes this strict definition, restoring broad officer discretion.

• Consideration of “Any” Means-Tested Public Benefit: While the 2022 rule limited DHS to considering only public cash assistance for income maintenance and long-term institutionalization, the new rule allows officers to consider the receipt of any means-tested public benefits, including non-cash benefits, on or after the effective date.

• Broad Totality of the Circumstances Test: Officers will evaluate the statutory minimum factors (age, health, family status, assets/resources/financial status, and education/skills), the receipt of means-tested public benefits, and any other case-specific factors relevant to self-sufficiency.

• Public Charge Bonds: The rule amends bond provisions to clarify that the receipt of any means-tested public benefit, or noncompliance with any bond condition, results in a breach of a public charge bond.

Important Protections for Past Benefit Use

To address reliance interests on the 2022 rule, DHS has explicitly stated that the new consideration of non-cash means-tested public benefits will only apply prospectively.

• If an individual received means-tested public benefits before the Sept. 18, 2026 effective date, DHS will evaluate that receipt consistently with the 2022 rule (see our alert).

• For periods before Sept. 18, 2026, DHS will only consider the receipt of public cash assistance for income maintenance (such as SSI or TANF) or long-term institutionalization at government expense.

Exemptions

The new rule removes the regulatory text listing exemptions and waivers, but this does not eliminate the exemptions themselves, which are statutory. Classes of immigrants historically exempt from the public charge ground—such as refugees, asylees, VAWA self-petitioners, Special Immigrant Juveniles, and T/U visa applicants—remain exempt.  DHS will maintain a list of these exemptions on its website and in the USCIS Policy Manual.

Top 10 Frequently Asked Questions (FAQs) on the 2026 Public Charge Rule

1. When does the new public charge rule take effect? The final rule officially takes effect on Sept. 18, 2026.

2. How does this rule change the Form I-485 filing process? USCIS will publish a revised Form I-485. If you are filing an adjustment of status application on or after Sept. 18, 2026, you must use the new edition of the form. Older versions postmarked or submitted electronically on or after Sept. 18, 2026, will be rejected.

3. Will receiving non-cash public benefits (like Medicaid, SNAP, or housing assistance) make me a public charge? Under the new rule, DHS officers can consider the receipt of any means-tested public benefit (including non-cash benefits) when evaluating your case. However, receiving a benefit is not solely outcome-determinative. Officers will weigh it alongside your age, health, education, and financial status in the totality of your circumstances.

4. What if I used non-cash benefits before the Sept. 18, 2026 effective date? DHS will not penalize you for non-cash benefits received before the rule’s effective date. For benefits received prior to Sept. 18, 2026, DHS will only consider public cash assistance for income maintenance or long-term institutionalization at government expense, consistent with the 2022 rule.

5. Will my U.S. citizen children’s use of public benefits be held against me? The public charge determination focuses on the individual applicant. DHS will generally not consider the receipt of public benefits by an applicant’s family members. However, if your family member receives means-tested benefits because your income falls below a certain threshold, and you are legally obligated to support them, DHS may consider that as part of evaluating your overall financial status.

6. Does this rule change who is exempt from the public charge test? No. Statutory exemptions remain fully in place. Refugees, asylees, Special Immigrant Juveniles, T and U nonimmigrants, and VAWA beneficiaries are among the categories that remain exempt from the public charge ground of inadmissibility.

7. Do I still need to submit an Affidavit of Support (Form I-864)? Yes. The requirement to submit a sufficient Affidavit of Support Under Section 213A of the INA remains unchanged for most family-based immigrants and certain employment-based immigrants. The Form I-864 will continue to be considered as a factor in the totality of the circumstances.

8. How will immigration officers make their decisions if the strict definitions are gone? Officers will rely on a “totality of the circumstances” test, evaluating all relevant information rather than a rigid checklist. USCIS will issue nonbinding subregulatory guidance in the USCIS Policy Manual to guide officers on how to weigh statutory factors and public benefit receipt.

9. If I am pregnant and use Medicaid for prenatal care, will it hurt my green card application? DHS will consider the receipt of any means-tested public benefits that provide prenatal care if received on or after Sept. 18, 2026. However, officers will consider the fact that pregnancy is a temporary condition, along with the duration and amount of the benefit, within the totality of your circumstances.

10. How does the new rule affect public charge immigration bonds? The rule strictly amends bond provisions to clarify that receiving any means-tested public benefit constitutes a breach of a public charge bond. Additionally, it eliminates previous language that allowed USCIS to cancel a bond at any time upon determining the alien was no longer likely to become a public charge.

Conclusion

The rescission of the 2022 public charge rule and the shift to a broad, discretionary framework marks a significant change in how USCIS will evaluate adjustment of status applications.  Because officers will now consider the totality of an applicant’s circumstances without the predictability of rigid regulatory definitions, applicants must be prepared for more comprehensive scrutiny regarding their financial status, self-sufficiency, and any prior or current use of means-tested public benefits.

We will continue to closely monitor the implementation of this final rule and any upcoming subregulatory guidance issued by DHS. Please do not hesitate to contact us if we can be of any help with a specific case filing or with a phone consultation.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.