Guidance related to the regulation of the public charge rule has been updated by DHS. As per the latest guidance, public charge inadmissibility will be determined using the totality of the facts test by USCIS adjudicators.
Regarding the nonimmigrants in highly skilled classifications such as the H-1B, L-1, and O-1 visa, any changes to the law will always create confusion about the possible impact on those applications for employment-based adjustment of status (I-485 form).
This memorandum presents an examination of the changes in the law that are effective September 18, the scope of the law, and considerations for employment-based filers.
What Is Changing with the Public Charge Rule 2026?
- Public Charge Analysis under the 2022 Framework involved assessment of only those benefits that directly provided income support or institutional long-term care at government expense.
- With effect from September 18, adjudicators implementing the USCIS public charge determination rule will have increased authority to review additional supplemental non-cash benefits such as SNAP, housing benefit programs, or Medicaid provided on or after the effective date.
- Statutory Scope: Officers shall, under statutory requirements, consider certain mandatory factors, including age, health, family ties, finances, and skills of the applicant.
- Effective Cutoff Date: This rule will be applicable to all I-485 applications which are mailed or electronically filed starting from September 18. The petitions filed before this date will still be considered according to the 2022 regulations.
- Edition Requirement: USCIS will need the new edition of Form I-485. Those petitions postmarked on or after September 18 but using previous editions will be rejected.
Are Employment Filers Subject to the Rule?
Yes, Employment-based applicants (EB-1, EB-2, EB-3) are legally not exempt from being classified as public charges. However, being subjected to a test is vastly different from the possibility of being denied admission into the country.
Legal Analysis for Corporate & Tech Applicants
For professional employees, corporate transfers, and technologists, the probability of adverse decision is relatively low under the standard of review.
Public Charge determination depends upon the overall circumstances of the case. Employment-based applicants tend to show positive aspects, satisfying the statutory standard:
- Verifiable Income: Applicants have employed positions which provide salaries based on prevailing wages or competitive market rate salary.
- Skill and Advanced Education: Degrees or advanced skills are a sign of future earning capacity.
- Health Insurance: Corporate employees have private insurance provided by their employers.
Active Employment, skills and market-based salary, and private health insurance are signs of a person whose financial situation inherently meets public charge standards.
However, while the standard of law favors gainfully employed applicants in the general scenario, a more detailed analysis is required in cases of atypical income sources or employment gaps.
Scenarios Requiring Strategic Assessment
Certain factual scenarios warrant targeted evidentiary preparation prior to filing:
| Edge Case Scenario | Potential Issue | Recommended Step |
|---|---|---|
| Dependent Benefit Use | Non-citizens who are dependent on state assistance for their healthcare and/or housing benefits. (Remember that the assistance used by citizen children will not count towards your parentage.) | Review your household use of benefits and any sources of income before filing. |
| Extended Employment Gaps | Long-term unemployment with little or no personal financial resources. | Gather financial information such as liquid funds, investment funds, or any severance funds to prove financial independence. |
| Early-Stage Startup Founders | Founders opting for lower or no salaries to invest back in the growth of the company. | Present evidence of funding from venture capitalists, capital resources, or business valuation. |
Procedural Considerations for Submission
- Form Version Verification: Make sure that any forms filed after September 18 are in the current version of USCIS Form I-485 to avoid procedural denial.
- Evidence for Documents: Give direct evidence of your income such as pay slips, W-2 form and letter from the employer.
- Legal Disclosure Requirements: Complete fully all the public charge questions in the USCIS Form I-485. Failure to do so is an independent basis for refusal of adjustment of status.
FAQs:
1. What does public charge mean?
The concept of public charge is a term applied by U.S. immigration officials to evaluate the likelihood that an immigrant would rely mainly on the government as a source of support.
2. Is Medicaid a public charge?
Under the new rule of September 18, Medicaid benefits are considered as part of the totality of circumstances, except where exceptions apply.
3. Which benefits are included?
Besides the usual cash benefits, decision-makers may take into account non-cash supplemental benefits such as food stamps, housing assistance, and Medicaid provided on or after September 18.
4. How does it affect employment-based filings?
Yes, employment-based immigrants are subject to the public charge test, but most successfully pass the test because of their income and employer-provided benefits.
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