DHS Rescinds 2022 Public Charge Regulation in Favor of Policy Guidance
On July 20, 2026, the Department of Homeland Security (DHS) published a final rule that revises the public charge ground of inadmissibility. This new final rule rescinds the Biden era’s 2022 Final Rule regarding the public charge ground of inadmissibility and provides DHS officers with broader discretion to deem a foreign national to be inadmissible to the United States.
Background
Any foreign national seeking to enter the US is inadmissible if they are likely to rely on government assistance while in the US. This “public charge” ground of inadmissibility applies to both temporary nonimmigrants and permanent or “green card” status holders in the US.
In December 2022, the Biden administration implemented a new rule that provided specific clarifications on how the government will apply this public charge ground of inadmissibility — especially for applicants for Adjustment of Status (permanent residence) in the US, as well as applicants for an Immigrant Visa abroad. The 2022 rule also clarified some exemptions to this ground of inadmissibility. This 2022 rule resulted in changes to the I-485 adjustment application form and clarified the circumstances under which the receipt of public benefits by a foreign national would or would not be considered inadmissible as a “public charge.”
Final Rule
On July 20, 2026, DHS published a new rule that will rescind the 2022 rule. This new rule will take effect on September 18, 2026.
DHS asserts that this new rule is needed to provide adjudicators with flexibility for individual determinations of public charge inadmissibility. Rather than relying on specific regulatory guidance, DHS claims that this new rule is more consistent with a “totality of circumstances” review, which is the intent of the public charge statute passed by Congress. Once this new rule is effective, adjudicators will review a range of factors such as education, skills, age, health, family status, and receipt of any public benefits in determining public charge grounds of inadmissibility.
On its face, this may seem like a positive step. However, DHS confirms that implementation of new factors to determine public charge inadmissibility will be through non-regulatory policy guidance. This guidance is expected to expand adjudicator discretion and, within that discretion, outline which government benefits can be considered in triggering public charge inadmissibility. This agency discretion and specific government benefits that can be considered will increase the likelihood of denial of permanent residence applications based on public charge grounds.
DHS, and more specifically US Citizenship and Immigration Services (USCIS), is expected to issue new policy guidance following this final rule. This will include a revised Form I-485 adjustment of status application with questions the applicant must answer related to public charge factors.
Stay tuned for updates on these policies and please contact a member of the Mintz Immigration team for more information.
Author
