DHS has issued a proposed rule that would rescind the public charge regulation in place since December 2022 and replace it with a significantly broader public charge framework implemented through policy guidance, rather than a formal regulation. The new approach would lower the threshold for finding an applicant likely to become a public charge and expand the factors USCIS may consider in adjustment-of-status adjudications.
The proposal will be formally published November 19, 2025, with a 30-day public comment period. The rule was not listed on the DHS regulatory agenda but moved rapidly to OMB review on November 4.
Separately, the Department of State has reportedly instructed consular posts to adopt a more expansive and stringent interpretation of the public charge ground of inadmissibility.
Statutory and Regulatory Background
- Public charge is a statutory inadmissibility ground under the INA, assessed through a totality of the circumstances.
- The term “public charge” is not defined in statute.
- The 2019 Trump-era rule broadened the definition and required extensive financial disclosures; it was invalidated in 2021.
- The 2022 Biden-era rule, currently in effect, restored a narrow definition tied to primary dependence on cash assistance or long-term institutionalization.
DHS now asserts that both the Biden and Trump rules restricted the government’s ability to make public charge findings and relies on a 1996 welfare reform statute as the legal basis for the rescission and new policy direction.
Key Policy Shifts Under the DHS Proposal
1. Lowered Standard for Public Charge Determinations
- Current: Applicant must be likely to become primarily dependent on government assistance.
- Proposed: Whether the applicant is likely to become “dependent on public resources to meet their needs,” removing the “primarily dependent” qualifier and allowing broader discretion.
2. Expanded Factors for Review
USCIS may consider any information deemed relevant, not just the statutory minimum factors (age, health, family status, assets/resources/financial status, education/skills).
3. Broad Expansion of Relevant Public Benefits
Negative factors would include receipt, application for, or approval for any public benefit, including programs not previously considered, such as:
- SNAP and other nutrition programs
- CHIP
- All forms of Medicaid
- Housing benefits
- Immunization/testing benefits
- Supplemental or special-purpose benefits
Applications or approvals, even without benefit receipt, could be weighed negatively.
4. Consideration of Dependents’ Benefits
Benefits received, applied for, or approved for a dependent could be considered against the applicant, expanding beyond the current rule, which limits analysis to the applicant’s own benefit history.
DHS states it will evaluate context and comply with the Rehabilitation Act regarding disability-related factors.
Implications for Employment-Based Adjustment of Status
- Form I-485 will be revised, though DHS states that the collection of information tied to statutory minimum factors will not materially change.
- Until a new form is issued, applicants will continue using the existing form; USCIS may issue Requests for Evidence (RFEs) to obtain information needed under the expanded
Conclusion
- Comment period: 30 days following publication on November 19, 2025.
- DHS will consider comments and may revise the proposal before issuing a final rule.
- A final rule could be released relatively quickly after the comment period closes.
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