Public Charge: What Advocates Need to Know About the November 2025 Proposed Rule

As the 1999 guidance states, “public charge” refers to an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Since the “public charge” inadmissibility provision first became part of federal immigration law in 1882, courts and administrative agencies have consistently interpreted the term “public charge” to refer to noncitizens who rely primarily on the government for subsistence. Congress has repeatedly considered and rejected efforts to expand the definition of public charge, including the efforts of the first Trump administration.

Under current regulations that are consistent with long-term policy, public charge refers to people who cannot support themselves and who depend on benefits that provide cash (such as Supplemental Security Income (SSI) or Temporary Assistance for Needy Families (TANF)) for their income or who are institutionalized with long term care paid for by the government. For purposes of USCIS’ determination, an individual who is likely at any time to become a public charge is inadmissible to the United States and may be ineligible to become a lawful permanent resident (LPR, or green card holder). The public charge test is not a part of naturalization applications.

If an individual is found inadmissible based on the public charge ground but is otherwise admissible to the United States, they may be admitted (at USCIS’ discretion) after posting a bond. The purpose of the bond is to ensure that the immigrant will not become a public charge in the future. If an individual posts a bond in the amount USCIS specifies, and they comply with all other requirements, USCIS accepts the bond and will grant the immigrant a green card despite their inadmissibility.

The public charge test does not apply to everyone, and not all benefits count for purposes of public charge. Statutorily, the test does not apply to individuals seeking green cards based on an approved petition for Special Immigrant Juvenile (SIJ) classification; an approved T or U visa; asylee or refugee status; or the Violence Against Women Act (VAWA). The public charge test is future-facing and is a totality of the circumstances test, so prior use even of relevant benefits by an individual should not be dispositive. There are other factors that the statute requires to be considered as part of this test: health; age; family status; assets, resources, financial status; education and skills. Public charge is not a public benefits policy; it is an immigration policy. This policy is separate from both historical actions under the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA) and other recent actions by Congress and the federal government to limit immigrant eligibility for health care and food aid.

On November 6, the Department of State (DOS) issued a cable to embassy and consular officials globally, providing new guidance for consular officers assessing visa applicants for purposes of public charge. See our explainer here for more information. The DOS cable provides operational guidance for visa applicants abroad and should not change USCIS’ policies or rules for green card applicants within the United States.

Nothing should change right now. This is a proposed rule. The government is describing what it intends to do. They are asking for public comments on their proposal, although they are not required to adopt the public’s suggestions (only to consider them). The NPRM provides a 30-day comment period. After the comment period, the agency will decide whether to issue the rule or rescission as originally proposed, modify it, or abandon it. If they choose to rescind the old rule as originally proposed, the NPRM will become a final rule.

The NPRM states that if the rescission or rule becomes final, until they replace the regulation with new policy, the agency will make public charge determinations “consistent with the statute and in accordance with the totality of the circumstances including those established by past precedent decisions.” The NPRM does not appear to address how applicants who detrimentally relied on the 1999 Guidance and 2022 Public Charge Rule can avoid a denial of adjustment of status based on use of any benefits not previously included in the definition of “public charge.” There is not a clear answer regarding whether the agency will consider the use of benefits even prior to publication of a final rule. DHS also proposes to impose a new interpretation that any means-tested public benefit (such as SNAP/EBT, for example) received by an applicant previously exempt from the public charge rule should still be considered in a public charge determination if they are later applying for adjustment of status under a new category that is not exempt from the public charge ground of inadmissibility. This would apply regardless of an individual’s previous exempt status (as a refugee, asylee, or Special Immigrant Juvenile for example, who later seeks to obtain a green card on another basis, like a spousal petition) or the basis for their eligibility for public benefits.

The government will be accepting comments for 30 days from the date of publication of the NPRM. We encourage advocates and anyone interested to submit comments opposing the rescission of the 2022 Rule. Comments can be submitted through regulations.gov.

A rescission as described in the NPRM would create a lot of uncertainty as to how the public charge ground of inadmissibility would be defined and applied. This proposed change is intended to cause confusion and chaos, by ending clear criteria and replacing it with no uniform guidance or regulations. Even without regulations or policy guidance, however, USCIS should follow the statute, which includes limitations on what can be considered.

This could still lead to arbitrary and discriminatory decision making, with similarly situated individuals getting different results from different officers. Actions like this function in the shadows, much like masked ICE agents, operating without transparency or accountability, with unprecedented power over people’s lives. If this proposed rule becomes a final rule, there would be no clear existing regulations governing the public charge ground of admissibility, other than provisions on bonds. Immigrants and their families would have no guidance about how to operate, with the inevitable conclusion that many eligible people would forego necessary support to avoid severe, unpredictable consequences.

Based on the language of the NPRM, the intent of the administration seems to be to issue new guidance and “tools” after the rule becomes final. The NPRM indicates its interpretation will likely depart significantly from the 1999 guidance. Any new guidance must be made publicly available.

In the absence of regulations or guidance, USCIS should be limited to applying the statute, relevant case law, and decades of established practices—none of which grant officers unlimited discretion.

NILC and other advocates will be carefully monitoring implementation. We encourage federal, state, and local officials to do the same. The first Trump administration’s public charge policy caused widespread misinformation and fear, and NILC is committed to working with community partners to defend and protect access to health care and nutrition for all.