DHS Finalizes Public Charge Rule

A July 20 final rule from the Department of Homeland Security (DHS) provides immigration officers broad discretion to determine if an individual likely will become a public charge. The term "public charge" describes a person who is likely to become primarily dependent on the government for support. The Public Charge Ground of Inadmissibility final rule will take effect Sept. 18.

Under immigration law, individuals seeking to enter or who reside legally in the United States and apply for a green card (adjustment of status) must demonstrate they are not likely to become a public charge. The public charge ground of inadmissibility has faced significant administrative, regulatory, and judicial activity in the past several years. The 2019 final rule expanded the types of public benefits immigration officials consider when determining whether an individual is likely to become a public charge, including the addition of nonemergency Medicaid, housing benefits, and nutritional benefits.

The 2022 final rule codified long-standing 1999 field guidance and reversed several policies from the 2019 rule. The 2022 rule narrowed the types of benefits considered in public charge determinations by excluding nonemergency Medicaid and other in-kind benefits included in the 2019 final rule.

In the 2026 rule, DHS rescinds the 2022 public charge ground of inadmissibility regulations but does not propose replacing them with new language. When determining whether an individual will become a "public charge," the agency will consider past or future benefit use for any duration of time, including the use of "means-tested public benefits."

The rule also removes the definition of "receipt of public benefits," which explicitly states that applying for or receiving benefits on behalf of family members is not considered "receipt." Immigration officers are to consider every change of status application on a case-by-case basis, considering the totality of the individual's circumstances.

Contact Director of Policy Rob Nelb, MPH, at [email protected] or 202.585.0127 with questions.