The Department of Homeland Security’s new “public charge” rule, which took effect on September 18, 2026, expands the benefits that immigration officers may consider when adjudicating green‑card applications. The rule now allows any means‑tested assistance—such as food stamps (SNAP), Medicaid, housing aid, and college financial aid—to be weighed alongside the five statutory factors (age, health, family status, finances, and hardship) in determining whether an applicant is likely to become a public charge.
Scope of the rule
- Applies to adjustment‑of‑status applications and admission petitions with a postmark or online submission date on or after September 18, 2026.
- Benefits received before that date are still evaluated under the 2022 standard, which counted only cash assistance for income maintenance and long‑term institutional care.
- USCIS guidance (issued August 18, 2026) lists examples of “any means‑tested benefit,” including SNAP, Medicaid, housing assistance, and college aid.
DHS rationale
- The agency cites a long‑standing policy that immigrants should be self‑reliant and that public benefits should not incentivize immigration.
- DHS projects that reduced enrollment in these programs could lower federal and state transfer payments by approximately $13.05 billion per year.
- DHS did not provide an estimate of how many applicants might be denied under the new standard, stating the impact cannot be quantified because each case is fact‑specific.
Legal challenges
- September 14, 2026 – New York Attorney General Letitia James filed a complaint in the U.S. District Court for the Southern District of New York, joined by attorneys general from 20 other states and the District of Columbia, as well as Pennsylvania’s governor.
- The suit alleges the rule is “arbitrary and capricious” under the Administrative Procedure Act and exceeds DHS’s statutory authority.
- The complaint argues the policy forces families to forfeit legally entitled benefits such as food assistance and health care.
- A separate city‑level suit led by New York City Mayor Zohran Mamdani includes Chicago, San Francisco, Seattle, Santa Clara County, and King County.
- A third action, filed on September 18, 2026 (the day the rule became effective), was brought by the Legal Aid Society, Democracy Forward, and the Center for Constitutional Rights on behalf of four nonprofits, including Make the Road New York.
Impact on investors
- Employment‑based applicants, including EB‑5 investors, remain subject to the public‑charge ground. EB‑5 investors must already demonstrate a lawful source of at least $800,000, satisfying the self‑sufficiency requirement before the new rule is applied.
- “Gold Card” applicants must show a $1 million gift plus a $15,000 processing fee.
- For investors adjusting status inside the U.S., the rule is procedural: USCIS now accepts only the 09/18/26 edition of Form I‑485; older editions are rejected with no grace period.
- The 08/24/26 edition of Form I‑864 (affidavit of support) now includes a privacy release authorizing USCIS to obtain credit reports and scores. EB‑5 investors who self‑petition do not file an I‑864.
Public‑charge bonds
- Under the 2022 framework, only receipt of cash assistance or long‑term institutional care could breach a public‑charge bond. The 2026 rule expands this to any means‑tested benefit, automatically breaching the bond.
- A State Department pilot launched August 5, 2026 allows consular officers in the Dominican Republic to direct certain applicants refused on public‑charge grounds to apply for a bond with USCIS.
- DHS removed the provision that permitted USCIS to cancel a bond at any time if the holder was deemed likely to become a public charge; the agency seeks to keep that deletion separate in case the broader rule is struck down.
Practical considerations for applicants
- Document the whole picture – Because any means‑tested benefit can now be a factor, applicants should compile a comprehensive evidentiary record covering employment, assets, health, and family circumstances.
- Use the correct forms – Submit the 09/18/26 edition of Form I‑485 and the 08/24/26 edition of Form I‑864 (if required). Older forms will be rejected and lose their filing date, which can affect age‑out deadlines for dependent children.
- Be aware of bond implications – Receipt of any means‑tested benefit after September 18, 2026, may invalidate a public‑charge bond, potentially eliminating a pathway for admission that some applicants rely on.
- Monitor the litigation – A court order vacating the rule would restore the narrower 2022 standard. Until then, the expanded criteria remain enforceable.
The lawsuits led by New York and its partners seek to halt the rule pending judicial review, arguing that it unlawfully expands the public‑charge ground and threatens access to essential benefits for lawful permanent‑resident applicants.
Source article: www.imidaily.com
