Effective September 18, the receipt time is the baseline.
The Department of Homeland Security (DHS) published a final rule in the Federal Register on July 20 to repeal the 2022 public charge rule. The public charge test is a procedure to determine if a green card applicant is likely to depend on government welfare in the future. The new rule takes effect on September 18, and the history of receiving non-cash benefits such as Medicaid or food stamps (SNAP) may be considered in the review for applications submitted on or after that date. Since it has been repeatedly observed in the past that people discontinued benefits due to rumors rather than the actual content of the rules, we will clarify exactly what is changing and what is not.
What has been abolished?
“Section 212(a)(4) of the Immigration and Nationality Act provides that aliens who are likely to become a public charge are inadmissible, and requires that the examiner consider at least age, health, family status, assets and finances, and education and skills.”
The public charge determination itself has long been a part of immigration law. The issue has always been ‘which benefits are viewed unfavorably,' and the answer has changed with each administration. The Trump administration, in its first term, created a regulation in 2019 that broadly considered benefits such as Medicaid, food stamps, and housing assistance. However, this regulation was abolished by the Biden administration in 2021 after legal challenges in federal court. Subsequently, a regulation enacted by the Biden administration in September 2022 (Federal Register 87 FR 55472) narrowed the scope of consideration to two categories: cash-like income assistance and government-funded long-term care. This explicitly stated that non-cash benefits such as Medicaid, food stamps, and housing assistance would not be considered in the determination.
This final rule completely repeals the 2022 regulations. DHS explained the reasons for the repeal as “not in line with Congressional intent and overly restrictive.” The proposed rule was issued on November 19th of last year, comments were received until December 19th, and now it has been finalized. Instead of limiting the list of benefits considered, the direction is to broaden the discretion of individual adjudicators. Broader discretion also means there is a greater chance of differing assessments depending on the adjudicator, even when reviewing the same documents. This marks the third reversal of regulations in seven years, meaning that from the applicant's perspective, the criteria applied will vary depending on ‘when the application is filed.".
The direction itself is not unfamiliar. This year, USCIS has continued its policy of emphasizing case-by-case discretionary judgment across all aspects of adjustment of status reviews, and this rule is an extension of that trend. The stance of scrutinizing each application more meticulously and with broader discretion has now been extended to the public charge area.
What benefits are considered, and from when do they count?
“The original rule stipulates that benefits received before the effective date only consider cash income assistance and government-funded long-term care, while all asset-tested public benefits received after the effective date are considered.”
Starting with benefits received after September 18, all public benefits that are means-tested, meaning they are paid after an income and asset review, may be subject to consideration. Medicaid, food stamps, and housing assistance are prime examples. The new rule does not provide a separate list of benefits to be considered. Instead of a list, the structure allows the reviewer to look at the overall situation on a case-by-case basis. On the other hand, benefits for which eligibility is earned through taxes paid from work, such as Social Security retirement benefits or Medicare received after retirement, are different in nature because they are not benefits paid based on an income review.
Cash income assistance here refers to cash support for the purpose of subsistence. Representative examples include Supplemental Security Income (SSI) for low-income elderly and disabled individuals, Temporary Assistance for Needy Families (TANF) for low-income families, and cash-based subsistence assistance from state or local governments. Government-funded long-term care facility placement refers to long-term placement in facilities such as nursing homes at government expense.
In other words, Medicaid or food stamps received before September 18th will only be considered based on the 2022 standards. This means that non-cash benefits legitimately received in the past that qualified you will not retroactively work against you. This grandfather clause is specified in the original text of the rule and is also the most important safeguard for applicants in this change. However, if you continue to receive the same benefits after the effective date, subsequent receipts will be taken into account. The rule states that USCIS (U.S. Citizenship and Immigration Services), which is in charge of immigration reviews, will provide further guidance on the weighting of benefits and the specifics of their application.
Who is affected and who is not
“Every time the public assistance regulations change, inquiries from those who are not eligible for review increase first at the office. The order of things is to first check if you are eligible.”
The public charge review applies to individuals seeking to enter the United States and those applying for Adjustment of Status (I-485) to become permanent residents within the U.S. This includes many family-sponsored and employment-based green card applicants. However, there is no public charge review for green card renewals (I-90) or naturalization applications (N-400) for existing green card holders. We sometimes see green card holders delaying their citizenship applications out of concern for past receipt of benefits, but this factor is not considered in the naturalization review. Categories of individuals exempted from this review by Congress through statute, such as refugees and asylum seekers, will continue to be exempt regardless of these changes.
One misunderstanding needs to be clarified. Having received benefits in the past does not automatically lead to rejection. The legal review process is based on an overall assessment of the situation. Your history of receiving benefits is just one of many factors, and it is evaluated alongside your current income, employment, and your family's ability to provide support. It's not something to give up on solely based on past history, nor is it something to take lightly.
The Affidavit of Support (I-864) for family-based green cards remains mandatory and is a factor considered in the review process. However, simply having the affidavit does not guarantee approval, and the immigration officer will make an overall assessment based on legal factors such as age, health, family situation, assets and financial status, and education and skills. DHS estimates that this change could reduce federal and state welfare spending by approximately $13.05 billion annually. A significant portion of this figure comes from eligible individuals voluntarily foregoing benefits out of concern about the review process. In fact, during the public comment period, several concerns were raised about the chilling effect of people who are not subject to review deciding to forgo benefits.
◆ Before and After September 18th - Submission Time Makes the Difference
“USCIS has announced that it will release a revised Form I-485, and that any older versions of Form I-485 that are postmarked or electronically filed after the effective date will not be accepted.”
The new rules will apply to immigration examinations after September 18 and to applications for adjustment of status that are postmarked or electronically submitted on or after the same date. The point of receipt is the baseline. Applications received before the effective date will be subject to the old criteria, even if reviewed afterward. This creates an incentive to file before the effective date for cases with ready documentation, and conversely, for filings after the effective date, you must use the revised I-485 form. Submissions with the old version will be rejected at the filing stage, regardless of content. For mail-in applications, the postmark date will be the determining factor, and for online applications, the date of completed submission will be used. Therefore, it is safer to act with some lead time rather than rushing just before the deadline.
If your household is currently receiving public benefits, there are two things you need to check before you become anxious and cut off your benefits. First, you need to determine if you are in a position to be assessed for public assistance, and second, whether the benefits you are receiving are subject to consideration. For instance, benefits received by a child who is a U.S. citizen based on their own eligibility have historically been treated separately from their parents' assessments. Conversely, if you, who are undergoing status adjustment, continue to receive asset-tested benefits after the effective date, that portion will require explanation in your assessment. Since the conclusions vary depending on the situation, a uniform judgment is prohibited.
The weight of financial documents also increases. In discretionary reviews, documents ultimately speak for themselves. If there are any years where you skipped tax filings, get them in order. Preparing employment verification, income proof, and asset-related documents to submit with your application is a way for the applicant to provide materials for the reviewer's judgment. Proof of health insurance also serves as a document showing your financial status. It is also basic to cross-check the information on the application with the actual records before submission to ensure there are no discrepancies. This is because, in discretionary reviews, small inconsistencies can become the starting point for requests for additional documents or unfavorable judgments.
Closing remarks
To summarize, there are three points. First, if you have a case where the adjustment of status documents are ready, please consider submitting them before September 18th. Submissions before the effective date will be reviewed under the old standards, even if the review occurs later. Since the postmark date and the electronic submission date are the basis, it is safe to allow for some buffer time for last-minute submissions. Second, if you are currently receiving public benefits, please confirm whether you are subject to review and whether those benefits are being considered before deciding to discontinue them. Naturalization applicants and green card renewal applicants are not subject to review from the outset, and benefits received before the effective date will only be considered under the old standards. This has been a recurring issue where individuals make assumptions unrelated to the review process and forgo benefits whenever regulations change. Third, if you plan to submit after September 18th, please check if the revised I-485 form has been released, and prepare to strengthen your financial documents such as tax returns, income, and employment verification in advance. As discretionary review broadens, the prepared documents will determine the outcome. Additional detailed guidance is expected to be released, so it is recommended to reconfirm the latest information just before submission.
Disclaimer: This column is for general information purposes only and is not legal advice for your specific case. You should always consult with an attorney who specializes in immigration law for your individual case.
Law Offices of Jin D. Cho
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