USCIS issues strict guidance regarding public charge for green card applicants

LOS ANGELES:- U.S. Citizenship and Immigration Services (USCIS) has issued new guidance allowing for a more rigorous assessment of whether immigrants applying for green cards have received—or are likely to receive in the future—public benefits.

According to new guidance issued by USCIS on Tuesday, when adjudicating applications from individuals seeking lawful permanent resident status—or a Green Card—while remaining within the United States, various income- and asset-based public benefits may be considered in assessing the likelihood of the applicant becoming financially dependent on the government in the future.

This new guidance will take effect on September 18, 2026. The policy applies to Form I-485 filings sent by mail or submitted electronically on or after that date. The new measure follows a final rule issued by the Department of Homeland Security on July 20, which rescinded the Biden administration’s 2022 rule regarding public charge.

According to USCIS, the new guidance seeks to align its decision-making process with the congressional policy that immigrants should be self-sufficient and not rely on public benefits funded by taxpayer money.

The new rule could affect many family-based and employment-based green card applicants. This may include spouses, children, and parents of U.S. citizens; relatives of lawful permanent residents; fiancés or fiancées coming to marry U.S. citizens; Diversity Visa recipients; religious workers; skilled workers; professionals; investors; and certain special immigrants.

However, the public charge grounds do not apply to all immigrants. Refugees, asylees, Special Immigrant Juveniles, applicants for Temporary Protected Status, human trafficking victims with T visas, crime victims with U visas, self-petitioners under laws against violence against women, and individuals in other humanitarian or special protection categories are generally exempt from this provision.

For benefits received prior to September 18, USCIS will consider only benefits such as public cash assistance for income maintenance and long-term institutional care at government expense when evaluating public charge status.

However, for income- or asset-based public benefits received on or after September 18, officials may evaluate each such benefit on an individual basis.

USCIS has included public cash assistance, public or subsidized housing, food assistance, government-funded health insurance or health assistance, financial aid for college and university-level education, and other similar assistance based on income or assets among the benefits that may be considered.

However, Social Security, Medicare, and unemployment insurance will not be considered income- or asset-based public benefits for the purpose of the public charge assessment.

USCIS has stated that for a benefit to be considered as having been received by an applicant, the applicant’s name must appear as the beneficiary of that benefit. Benefits received by an applicant’s children or other relatives will generally not be considered as having been received by the applicant.

However, officials may assess the family’s financial situation if the benefit received by a relative appears related to the applicant’s income, assets, or legal obligation of support.

Similarly, USCIS may consider instances where an individual applied for, was approved for, or received certification to receive income- or asset-based public benefits in the future, even if they ultimately did not actually receive the benefits.

U.S. immigration and nationality law requires USCIS to consider five factors when evaluating the “public charge” ground of inadmissibility.

These factors include the applicant’s age, health, family status, assets and financial resources, and education and skills.

Additionally, officials may also consider Form I-864—the Affidavit of Support—when necessary. Through this form, a sponsor commits to supporting the immigrant applying for a Green Card using their own financial resources.

According to USCIS, merely having a sufficient Affidavit of Support does not guarantee the approval of an application. However, if a sufficient affidavit is not submitted when required, that fact alone could lead to the conclusion that the applicant might become a public charge.

Under the new policy, officials must evaluate the overall circumstances rather than basing decisions on a single fact. Except in cases where an affidavit of necessary financial support is missing, no single factor alone can lead to the conclusion that an applicant will become a public charge.

USCIS has stated that an applicant’s current or past receipt of public benefits based on income or assets may be considered a significant factor. However, the mere receipt of public benefits does not prove that the individual is likely to become a public charge in the future.

Officials will also assess whether the applicant is able to cover their expenses through employment, family income, savings, assets, family support, private financial assistance, or other available sources.

The new guidance clarifies that an individual cannot be deemed ineligible for entry into the U.S. or for a Green Card on the grounds of being a “public charge” solely based on their disability.

Similarly, USCIS has stated that a conclusion that an applicant is likely to become a public charge should not generally be drawn solely on the grounds that they have low income or have received public benefits in the past, provided they are of working age, healthy, capable of working, and willing to work.

If USCIS determines that a green card applicant is ineligible for permanent residence in the U.S. solely due to the likelihood of becoming a public charge, it may offer the applicant the opportunity to post a public charge bond.

Such a bond may be posted in cash or through a surety company certified by the U.S. Treasury. USCIS has stated that the bond amount will be determined based on the potential public assistance the applicant might receive over the next five years.

However, applicants cannot voluntarily submit a public charge bond on their own initiative. A bond may be submitted via Form I-945 only after USCIS specifically invites the applicant to do so by issuing a “Notice of Intent to Deny” based on public charge grounds.

USCIS has clarified that it will not accept unsolicited public charge bonds.

Applications filed between December 23, 2022, and September 17, 2026, will be adjudicated in accordance with the public charge rule implemented in 2022 and related guidance.

Applications filed prior to December 23, 2022, will be adjudicated based on the 1999 interim field guidance.

The new policy, effective September 18, will replace the previous guidance regarding public charge for Green Card applications falling within the new timeframe.

However, this new guidance will apply only to USCIS decisions regarding adjustments of status—specifically, Green Card applications—within the United States. It will not automatically apply to public charge determinations made by the State Department when issuing visas at U.S. embassies and consulates, decisions made by Customs and Border Protection at ports of entry, or rulings made by judges in immigration courts.