The U.S. Department of Homeland Security (DHS) issued a proposed rule, titled the “Public Charge Ground of Inadmissibility”, to amend the public charge regulations to repeal provisions promulgated by the Biden administration’s 2022 public charge rule (also titled “Public Charge Ground of Inadmissibility”). DHS stated that it was removing the existing public charge inadmissibility framework because both the 2019 public charge rule and the 2022 public charge rule provided overly “narrow” and restrictive lists of factors that officers were required to consider and are “in significant tension with the inherently discretionary nature” of the public charge inadmissibility statute.
The public charge statute, at INA § 212(a)(4), makes any alien inadmissible if they are “likely at any time to become a public charge”. The statute requires immigration officers to consider “at minimum” the alien’s age; health; family status; assets, resources, and financial status; and education and skills when making a public charge determination, but does not otherwise define what the term means.
The concept of denying admission to individuals who are likely to become dependent on government assistance is not new. It has been part of U.S. immigration law for more than a century. The federal government adopted the standard in the Immigration Act of 1882, which barred the entry of “any person unable to take care of himself or herself without becoming a public charge”. Moreover, if an alien who is already in the United States wants to adjust status to another lawful immigration status but is determined to be inadmissible under INA § 212(a)(4), their application will generally be denied.
What Changes Does This Rule Make to Public Charge Policy?
This proposed rule would make a handful of significant changes to public charge policy. Most importantly, the rule would repeal the Biden administration’s “primarily dependent” standard, which was modeled on Clinton administration guidance and allows aliens to receive a broad range of public benefits so long as they do not become “primarily dependent”. Instead, DHS would allow officers to assess dependence on any public resources to meet needs, under a more flexible “totality of the circumstances” framework. This will effectively eliminate any “bright-line” test in making a public charge inadmissibility determination.
In furtherance of this standard, the proposed rule would also repeal the regulatory limitations on public benefit types that an immigration officer is permitted to consider when making a public charge determination. These regulatory limitations were issued by the Biden administration’s 2022 public charge rule.
By repealing the 2022 regulation, this rule expands immigration officer discretion by allowing them to consider all factors and information they deem relevant. In contrast, the Biden administration’s 2022 regulation limited officer’s discretion to only the five factors mandated by statute.
In the preamble to the rule, DHS explained that it was making these changes because the rules in place are “overly restrictive” and inconsistent with federal law and national policy. DHS stated that the current policies “discouraged officers from considering relevant evidence essential to making an accurate and valid public charge inadmissibility determination that is consistent with statute, the spirit of PRWORA, and past precent decisions”.
This proposed rule does not aim to revise U.S. Department of State or U.S. Department of Justice standards or processes related to public charge inadmissibility determinations. Further, this rule does not propose to interpret or change DHS's application of the public charge ground of deportability at INA § 237(a)(5).
A Brief, Recent History of the Public Charge Policy
The public charge ground of inadmissibility was reaffirmed by Congress repeatedly in the 1990s. First, the Immigration Act of 1990 retained the ground of inadmissibility in law. Second, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) mandated that immigration officers at least consider five specific factors (age; health; family status; assets, resources and financial status; and education and skills) when making a public charge determination. Third, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which declared a national policy that aliens should not depend on public resources and that the availability of public benefits should not constitute an incentive for immigration to the United States. The act also limited eligibility for federal, state, local, and tribal public benefits.
In response to IIRIRA and PRWORA, the Clinton administration proposed a public charge regulation, but never finalized that proposal. The legacy Immigration and Naturalization Service (INS) published interim field guidance (a policy memorandum that never went through the notice and comment process required by the Administrative Procedure Act) in 1999 to dictate a standard to officers applying the statute. The INS guidance defined public charge as an individual who is “primarily dependent on government for subsistence”, either through case assistance for income maintenance or long-term institutionalization at government expense. This standard, as CIS research would later show, allowed for a significant degree of welfare use by aliens without triggering the ground of inadmissibility.
In 2019, under the first Trump administration, DHS issued its first-ever regulation to define the term “public charge” and provide guidance to immigration officers regarding how to apply the statute. Compared to the 1999 interim field guidance, this standard expanded the definition of the term “public charge” by including a wider range of non-cash benefits. The regulation also gave guidance on how officers should weigh consideration of the mandatory factors required by statute. This rule was challenged in court and was ultimately vacated when the Biden administration took over in 2021.
In 2022, the Biden administration issued its own public charge rule. This rule largely codified the 1999 interim field guidance into regulation and revived the “primarily dependent” standard that permitted some public benefits use by aliens subject to the ground. Notably, this rule prohibited officers from considering public benefits used by an alien’s dependents or receipt of any non-cash benefits when making a public charge determination.
On September 4, 2025, U.S. Citizenship and Immigration Services issued a memorandum, titled “Reaffirming Guidance on Public Charge Inadmissibility Determinations”, that reminded USICS officers to strictly adhere to the INA when making inadmissibility determinations, including under the public charge ground. Specifically, the memorandum directed officers to apply a “totality of the circumstances” standard when considering whether an alien is likely to become a public charge. The memorandum clarified that, “No one factor, other than the lack of a sufficient Affidavit of Support Under Section 213A of the INA, if required, can be the sole criterion for determining if an alien is likely at any time to become a public charge.” This guidance will remain in place if DHS finalizes its proposed rule as written.
Public Participation Opportunity
Anyone can take part in this rulemaking process by submitting a public comment. The comment period for this proposed rule will be open until December 19, 2025. During this time, members of the public can submit feedback, including support, opposition, or relevant policy alternatives, through regulations.gov — "DHS Docket No. USCIS-2025-0304". Generally, all comments are publicly available for review, and agencies must review and respond to all relevant comments before they can finalize the regulation.