We already wrote about the return of the „public charge” test in a previous article, which was based on press reports at the time. Now, following the publication of the final rule and USCIS guidelines, the exact rules are known. The „public charge” test—which evaluates whether a green card applicant might become dependent on government assistance in the future—is returning to the U.S. immigration system in a new, looser format. On July 20, 2026, the Department of Homeland Security (DHS) published the final rule in the Federal Register (document 2026-14539, 91 FR 45324) repealing the 2022 regulation (87 FR 55472). A month later, on August 18, U.S. Citizenship and Immigration Services (USCIS) issued detailed implementation guidelines (Policy Alert PA-2026-09), which were added to the Policy Manual, Volume 8, Part G.
The end of the „hard” definition — a return to officer discretion
The key difference compared to the 2022 regulations is different than many press reports suggest. The 2022 rule used a clear threshold: an applicant was considered at risk of being a „public charge” if they were „primarily dependent” on cash public assistance or long-term institutional care funded by the government. In the new regulation, DHS explicitly writes that it „is neither promulgating definitions for the terms ‘public charge’ or ‘public benefits’ through this rulemaking”—literally: „DHS is neither promulgating definitions for the terms ‘public charge’ or ‘public benefits’ through this rulemaking”. The Department also clearly declares that it is moving away from the rigid „primary dependence” threshold in favor of a „totality of the circumstances” evaluation conducted individually by each officer.
In practice, this means less predictability, not more. Instead of a single measurable threshold, the outcome is decided by a combined evaluation of statutory factors—without a rigid formula that can be calculated in advance.
More types of assistance will be factored into the assessment
The second change concerns the scope of benefits taken into account. The 2022 regulation practically only counted cash maintenance assistance and government-funded long-term institutional care costs—most non-cash benefits (SNAP, Medicaid outside of emergency situations, housing assistance) were excluded from the evaluation. The new regulations change this: DHS recognizes that the term „benefits” from the statute includes both cash and non-cash assistance, and will consider the receipt of any means-tested benefits—without distinguishing between cash and in-kind benefits.
However, the change does not apply retroactively in a simple way. DHS introduced a clear temporal division: benefits received before September 18, 2026 will be evaluated according to the narrow 2022 rules (cash assistance and institutionalization only), and benefits received on or after September 18, 2026 will be evaluated according to the new, broader standard.
Who is affected by the change and as of when
The new rules apply to admission applications filed on or after September 18, 2026, and applications for adjustment of status to permanent residence (Form I-485) postmarked or filed electronically on or after that date. This applies to both family-based categories (including marriages to U.S. citizens, family sponsorship) and employment-based categories—which are the main pathways through which Poles apply for a green card.
The five statutory factors that an officer must consider in every evaluation remain unchanged, as they stem directly from the statute, not the regulation: age, health status, family situation, assets and financial resources, and education and occupational skills. On the other hand, the approach to Form I-864 (Affidavit of Support) is changing—submitting a correctly completed sponsor’s affidavit remains mandatory for most family-based categories, but the provision requiring automatic „favorable” treatment of a sufficient I-864 during the evaluation has been eliminated. Now it is also an element of the overall assessment, rather than a factor that predetermines the outcome in the applicant’s favor.
The regulation also tightens the rules regarding public charge bonds (bonds posted instead of a denial in certain cases)—the mere receipt of any means-tested benefit, or the violation of any bond condition, will now be considered a breach of the bond.
What this means in practice
Almost 8.9 thousand public comments were submitted to the draft (including 5,882 within the statutory 30-day consultation period), mostly critical of the change. DHS itself estimates that the new rules will reduce annual transfer spending by the federal and state governments by approximately $13.05 billion.
For anyone planning a green card application, the calendar is most important: cases filed and decided before September 18, 2026, are still subject to the previous, narrower rules. Anyone with an open family or employment case who is using—or has used—any public assistance should discuss with a licensed immigration attorney right now how to document this and how to prepare the sponsor to file Form I-864. The final evaluation still depends on the individual officer, so it is worth approaching the application with complete, organized financial documentation.
Issues related to the „public charge” test and the green card application are best consulted in advance—you can find trusted, Polish-speaking immigration attorneys in the Polish Pages directory.
Sources:
- Federal Register — „Public Charge Ground of Inadmissibility” (DHS, document 2026-14539, 91 FR 45324, published July 20, 2026): https://www.federalregister.gov/documents/2026/07/20/2026-14539/public-charge-ground-of-inadmissibility
- USCIS Newsroom — „USCIS Issues Guidance on Making Public Charge Inadmissibility Determination” (August 18, 2026): https://www.uscis.gov/newsroom/alerts/uscis-issues-guidance-on-making-public-charge-inadmissibility-determination
- USCIS Policy Manual, Volume 8, Part G — Public Charge Ground of Inadmissibility: https://www.uscis.gov/policy-manual/volume-8-part-g
This article is for informational purposes and does not constitute legal advice. Every immigration case depends on individual circumstances—consult a licensed immigration attorney before filing an application.
Author: Bartosz Karczmarski · August 20, 2026
