Public Charge in 2026: What the New Rules Mean for Employment-Based Green Card Applicants

What Changed

Applicants for a green card are inadmissible if USCIS finds they are "likely at any time to become a public charge" (INA 212(a)(4)). On July 20, 2026, DHS published a final rule rescinding the 2022 public charge regulations (91 FR 45324). The rule took effect September 18, 2026. In DHS's words, rescission "restores broader discretion" for officers to evaluate all pertinent facts.

USCIS then issued new guidance in Volume 8, Part G of the Policy Manual. It applies to Forms I-485 subject to public charge that are postmarked or electronically submitted on or after September 18, 2026, and it supersedes prior guidance, including the 1999 interim field guidance.

Are Employment-Based Applicants Covered?

Yes. USCIS lists the following among the categories subject to the public charge ground:

• Priority workers (EB-1, including EB-1A, EB-1B, and EB-1C)
• Professionals with advanced degrees or individuals of exceptional ability (EB-2, including NIW)
• Skilled workers, professionals, and other workers (EB-3)

The statute itself applies to any applicant who is not in an exempt category. Many humanitarian categories, such as refugees and asylees, are exempt. USCIS's announcement lists the exempt categories.

The Factors USCIS Weighs

The statute requires officers to consider, at a minimum, your age, health, family status, assets, resources, and financial status, and education and skills (INA 212(a)(4)(B)). Under the 2026 guidance, officers also consider your receipt of means-tested public benefits and any other relevant factor, in the totality of the circumstances, case by case. The burden of proof stays with the applicant (8 USCIS-PM G.10).

How the Policy Manual describes several factors (8 USCIS-PM G.5, G.8):

• Health: officers generally defer to the immigration medical exam (Form I-693) and do not make diagnoses. A disability alone is not a sufficient basis for a public charge finding.
• Family status: household size, including a spouse, children, and certain others living with you or listed as tax dependents.
• Assets, resources, and financial status: household income, assets, and liabilities. Income from means-tested public benefits is excluded from positive consideration.
• Education and skills: degrees, certifications, licenses, language skills, and skills gained through work experience.
• Employment: officers may look at the "arc" of your education, training, and employment history. A period of unemployment alone is insufficient to conclude you will become a public charge, and officers may request evidence of job offers and expected salary.
• Fee waivers: a past USCIS fee waiver may be considered, with more recent waivers likely more relevant.

Public Benefits: Before and After September 18, 2026

The date of receipt matters:

• Before September 18, 2026: USCIS considers only public cash assistance for income maintenance and long-term institutionalization at government expense, consistent with the 2022 rule.
• On or after September 18, 2026: USCIS may consider any means-tested public benefit. Its announcement lists examples such as cash assistance, housing assistance, food stamps, and financial aid for college, "or any other similar benefit."

USCIS considers the recency, amount, and duration of any receipt, and the reason for it. Benefits received by other household members are generally not attributed to you, but they can matter if they are your source of support or you are legally obligated to support that person.

Form I-864: Usually Not Required in Employment Cases

Most employment-based applicants do not file an Affidavit of Support (Form I-864). It is required only when the petitioner is your relative, or is an entity in which your relative has a significant ownership interest (INA 212(a)(4)(D); 8 USCIS-PM G.6). In those cases, failing to submit a sufficient I-864 results in inadmissibility.

Public Charge Bonds

If USCIS finds you inadmissible only on public charge grounds, the officer may invite you to post a public charge bond (Form I-945), as a cash bond or a surety bond. You may submit one only if USCIS invites you to in a Notice of Intent to Deny. To set the amount, USCIS considers how much government assistance you may be eligible for and could receive over the next five years.

What This Means in Practice

For many EB-1A, NIW, and other professional applicants, education, skills, and employment are strong positive factors. But because officers now have broader discretion and every case turns on the totality of the circumstances, the record you submit matters.

Planning Points

None of these points guarantees an outcome, but each tracks the rules and guidance described above:

• Answer the I-485 public charge questions carefully and consistently with your other records.
• Document your education, skills, and employment, including current job offers and salary.
• Show household income and assets, and account for liabilities.
• Before applying for any means-tested benefit, for yourself or someone you are legally obligated to support, consider the effect on a pending or future green card application.
• Check whether Form I-864 applies if a relative, or a company a relative significantly owns, is your petitioner.
• Expect possible requests for evidence, and respond fully.

See our guides to adjustment of status vs. consular processing, the I-693 medical exam, and responding to an RFE.

Key Takeaways

• DHS rescinded the 2022 public charge rule effective September 18, 2026; new USCIS guidance applies to I-485s filed on or after that date.
• EB-1, EB-2 (including NIW), and EB-3 applicants are subject to public charge.
• Officers weigh age, health, family status, finances, and education and skills, plus benefits receipt and other factors, in the totality of the circumstances.
• Benefits received on or after September 18, 2026 can include any means-tested benefit; earlier receipt is considered more narrowly.
• Form I-864 is usually not required in employment cases unless a relative or a relative's company is the petitioner.

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Preparing an employment-based adjustment of status application? Schedule a consultation to review your filing under the new rules.

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Sources and References

• INA § 212(a)(4) (8 U.S.C. § 1182(a)(4)): Public charge
• DHS, Public Charge Ground of Inadmissibility, Final Rule, 91 FR 45324 (July 20, 2026)
• USCIS, USCIS Issues Guidance on Making Public Charge Inadmissibility Determination (Aug. 18, 2026)
• USCIS Policy Manual, Volume 8, Part G: Public Charge Ground of Inadmissibility

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This document provides general information only and does not constitute legal advice. Immigration law is complex and individualized. Outcomes depend on specific facts and circumstances. No results are guaranteed. Always consult with a qualified immigration attorney before making decisions about your immigration case.