Immigrants looking to apply for green cards will face a larger hurdle in an already arduous application process: a deregulated public charge test. Late last month, United States Citizenship and Immigration Services (USCIS) finalized a new rule broadly expanding the types of public benefits that, if used, would cause a green card application to be denied. The new public charge rule will be effective later this fall on September 18.
“Public charge” first emerged as a concept in immigration law under the Immigration Act of 1882. The law expanded the ranks of excludable immigrants to include convicts, lunatics, and “any person unable to take care of himself or herself without becoming a public charge.” The law, however, did not explicitly define what factors would render someone a public charge.
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The lack of a clear definition meant that, for over a hundred years, determinations of whether an immigrant was a public charge were made solely at an immigration officer’s discretion on a case-by-case basis. The winds shifted, however, when the now-defunct Immigration and Naturalization Service (INS) published the first official public charge guidance in 1999.
The 1999 guidance only considered two types of public benefits as grounds for inadmissibility—that is, a reason to deny a green card application: cash assistance for income maintenance, which includes programs like Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF), and long-term institutionalization at the government’s expense. For around two decades, the 1999 guidance provided clarity for both INS adjudicators and prospective green card applicants without barring applicants from using other forms of public assistance that they are entitled to.
Every single kind of public benefit could now be considered in a public charge determination.
Then in 2019 came the Trump administration’s first attempt to change the public charge rule. The 2019 rule, unlike the 1999 guidance, formally required USCIS officers’ public charge determinations to follow the regulation exactly. But in practice, the rule gave USCIS adjudicators more discretion in making public charge determinations by increasing the types of public benefits that could count against someone’s green card application.
Almost immediately, lawsuits from multiple states against the 2019 rule were filed, resulting in its invalidation in lower courts. The Biden administration subsequently dropped its defense of the 2019 public charge rule in the appellate courts and constrained public charge determinations to the two public benefits listed in the 1999 guidance.
This brings us to today, where the 2026 rule rescinds the Biden-era public charge regulation. Instead of only considering the two aforementioned public benefits, every single kind of public benefit—on both the state and federal level—could now be considered in a public charge determination. In what it calls a “totality of the circumstances analysis,” the new rule allows USCIS adjudicators to count age, health, family status, finances, educational background, and even the use of public benefits by an applicant’s dependents, regardless of that dependent’s status, against that applicant’s chances for approval. Just about any immigrant can be said to fit that qualification.
The Prospect talked to Sarah Krieger, health and economic support senior policy counsel at the National Immigration Law Center (NILC), an organization advancing the rights of low-income immigrants and their families. “What this newest rule does is very unusual and is designed to cause maximum chaos and harm to immigrant families and our communities at large because it gets rid of all regulation,” she states.
A CHILLING EFFECT WILL be felt by millions of immigrant families across the nation. Immigrant families where one or more individuals are looking to apply for a green card will be forced to choose between their status in the U.S. and public benefits that they and their families rely on. Still, many of these families will choose to forgo their benefits.
USCIS itself acknowledges its approach will cause 1.3 million people to leave Medicaid, the Children’s Health Insurance Program (CHIP), SNAP, TANF, SSI, federal rental assistance, and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). But this number is likely an underestimate, as a 2026 analysis from the Kaiser Family Foundation found that between 1.4 million and 4.1 million Medicaid and CHIP enrollees living in households with a noncitizen might quit the program due to the new public charge rule. Even this analysis does not consider disenrollment from other programs.
According to 2024 data from the Urban Institute, nearly 24 percent of mixed-status families—where at least one family member has legal status, and another is undocumented—avoided using public benefits to preserve green card eligibility. What’s alarming, however, is that families who will never face the public charge test are also experiencing the chilling effect. Twelve percent of families where everyone is either a green card holder or a U.S. citizen, and 7 percent of families where everyone is a U.S. citizen, also avoided using public benefits because of confusion surrounding who the public charge rule applies to.
“The chilling effect is not just on the people who are subject to public charge. The research has shown pretty definitively that these policy changes lead to decreased participation in vital programs among a much broader group of people, particularly U.S. citizen children,” Krieger explains. The policy will hit immigrants from China, Mexico, India, and the Philippines harder, as those countries have high demand for visas through family-based immigration pathways.
The Department of Homeland Security (DHS) and USCIS are aware the policy has a chilling effect on U.S. citizens: “Individuals who might choose to disenroll from or forgo future enrollment in a public benefits program include aliens as well as U.S. citizens who are members of mixed-status households.”
Tonya Somesh, a community organizer at South Asian Network, a community-based organization advancing the health, emotional and mental well-being, and civil rights of South Asians in Southern California, shared with the Prospect that before the new rule was finalized, families were requesting to sign up for federal and state-level public benefits programs, causing their public benefits unit to reach capacity.
“Since the public charge news has been announced, we’ve been having two to three families a week drop out [of public benefits]. On average, we’re having 12 to 18 people refuse or not sign up for medical services, resources, and health insurance out of fear [of] public charge,” she explained.
MORE DISCRETION EQUALS more discrimination. According to the USCIS website, the 2026 rule will allegedly restore “broader discretion for DHS officers to evaluate all pertinent facts and aligns with long-standing policy that aliens in the United States should be self-reliant and government benefits should not incentivize immigration.”
But allowing USCIS officers to consider virtually any factor about a green card applicant in a public charge determination only adds more confusion, making discrimination all the more likely. “You could have two very similar cases with similar benefits, needs, and circumstances, and one officer would make the decision to grant the green card [while] another officer would make the decision to deny it,” Krieger explains.
Unlimited discretion creates the “perfect storm of inconsistent, arbitrary, and discriminatory adjudication,” she adds. It’s worth mentioning that other government subsidies only available to rich people, like the carried interest loophole for hedge fund managers, are not mentioned as a public charge consideration.
USCIS noted that it would later send out subregulatory guidance to assist officers in adjudicating green card applications. The key issue here, however, is that the subregulatory guidance will not be binding, so USCIS officers are still free to make public charge determinations based on the factors they deem relevant. Indeed, USCIS adjudicators are not medical experts nor are they public benefits experts.
Krieger told the Prospect, “Without substantial guidance and guardrails, you’re going to have officers deciding things based on their assumptions about people’s ability to support themselves. So I think we’re very likely to see that people who have used public housing, people who are elderly, people with disabilities, people of color are going to be unfairly judged. Because there is no limit to what an officer can consider.”
If a USCIS officer decides to deny an application due to a public charge determination on a discriminatory basis, there isn’t much room for recourse, since green card application decisions are not appealable under those circumstances.
Since the rule was published, Democratic members of Congress have not hesitated to voice their dismay. The Congressional Hispanic, Asian Pacific American, Black, and Democratic Women’s Caucuses released a joint statement on July 23, 2026, condemning the new public charge deregulation.
Officials from states with large immigrant populations, such as Nevada, particularly are voicing their concerns. Over 19 percent of Nevada’s population is made up of immigrants, and the new rule could have serious implications for Republicans’ chances in the Southwestern battleground state this November, where they are attempting to upset three Democratic representatives and re-elect Gov. Joe Lombardo to a second term.
Sen. Catherine Cortez Masto (D-NV) told the Prospect, “This administration continues to do everything it can to spread fear and confusion in the immigrant community. This decision will lead to entire immigrant families, including U.S. citizen children, forgoing critical support they need.”
