In November 2025, both the Department of Homeland Security (DHS) and the Department of State (DOS) signaled changes to how the U.S. government will determine whether visa applicants or those seeking permanent residence are "likely to become a public charge." While both agencies are moving toward a broader, more discretionary approach, their guidance reveals important similarities and differences that may affect immigrants, nonimmigrants, and their advocates.
DHS Proposed Rule: Rescinding the 2022 Regulations
On Nov. 19, 2025, DHS published a Notice of Proposed Rulemaking (NPRM) indicating its intent to rescind the 2022 public charge regulations. DHS plans to withdraw the 2022 rule, which narrowly defined public charge and limited the types of public benefits considered (mainly cash assistance and long-term institutionalization) because the agency believes it is inconsistent with congressional intent and too restrictive. Officers would be guided by both statutory "minimum factors" (age, health, family status, assets/resources, and education/skills) and any additional evidence relevant to an individual's case showing self-sufficiency. The rule would apply to applicants for admission or adjustment of status within the United States (e.g., those filing Form I-485 with USCIS).
Key Points:
- Restores Officer Discretion: DHS officers would once again consider the "totality of the circumstances," not just a narrow set of benefits or factors.
- Any Means-Tested Benefits: Officers may take into account any means-tested public benefit—not just cash assistance and long-term care—when assessing self-sufficiency.
- No Bright-Line Rule: There are no fixed criteria; instead, each case is judged on its unique facts.
- Statutory Minimum Factors: Age, health, family status, assets/resources, education/skills, and (when required) the Affidavit of Support.
- Forward-Looking: The determination is prospective—whether the individual is likely to become a public charge at any time.
DOS Consular Guidance: Implementing Public Charge for Visa Applicants
It appears that DOS issued new guidance to consular officers around the world, updating the way they assess whether visa applicants –both immigrant and most nonimmigrant (temporary)– are "likely to become a public charge" under Immigration and Nationality Act (INA) section 212(a)(4). An unofficial copy of the cable dated Nov. 6, 2025, offers insight into how U.S. consular officers are being instructed to implement public charge policy. This guidance marks a renewed focus on self-sufficiency for both immigrant and nonimmigrant visa applicants and clarifies what evidence officers should evaluate during visa interviews.
Key Points:
- Broad Applicability: Most visa categories are subject to public charge review unless they fall into specific exempt categories (as listed in 9 FAM 302.8-2(B)(6)).
- Comprehensive Review: Consular officers must review all available evidence—petitions, interviews, medical reports, affidavits, financial and employment documents, and any record of public benefits use (domestic or abroad).
- No Bright-Line Test: No single factor (except lacking a required Affidavit of Support) is dispositive; decisions must be based on the "totality of the circumstances."
- Statutory Minimum Factors: Same as DHS—age, health, family status, assets/resources, education/skills, and (when required) Affidavit of Support.
- Benefit Use—Past and Present: Both cash benefits and long-term institutionalization in the U.S., as well as similar assistance received abroad, are relevant. Officers are also told to consider use of non-cash assistance (like food, housing, or private charity) as a possible indicator of future need, even if not strictly covered by regulation.
- Burden of Proof: Rests entirely on the applicant to prove they are not likely to become a public charge.
- Special Guidance for Affidavit of Support: While necessary for many family-based (and some employment-based) cases, a sufficient affidavit does not guarantee approval; the credibility and ability of the sponsor is also scrutinized.
Key Contrasts of Potential DHS Guidance and Recent DOS Guidance
- Breadth of Evidence: DOS explicitly encourages officers to consider any evidence of need—public or private, U.S. or foreign. DHS's proposal is less explicit about foreign aid but restores broad discretion, which might include such evidence.
- Application Frequency: At consulates, even repeat nonimmigrant applicants (e.g., tourists) may face public charge review every time they apply. In the U.S., the focus is on admission or adjustment.
- Documentation: DOS guidance makes clear that applicants must provide and, if requested, verify financial and other supporting documents. DHS's proposed rule might require similar evidence, but details may come in future policy guidance.
- Affidavit of Support: For DOS, even a technically sufficient affidavit is scrutinized for credibility and the sponsor's financial reality. DHS's approach is similar, but with less emphasis in the proposed rule on sponsor credibility.
Conclusion: Impacts on Applicants
Both DHS and DOS are moving to a more discretionary, case-by-case approach that looks beyond a narrow list of public benefits or financial factors. Applicants—whether seeking a green card in the United States or a visa abroad—may wish to document their financial stability, health, family situation, and employability in detail. Past use of any public assistance, even outside the United States, may be considered, though it is not automatically disqualifying.
The bottom line: Self-sufficiency is the touchstone, and officers at both DHS and DOS will have broad latitude to deny applications if they find an applicant is likely to become a public charge, based on the totality of the evidence.
Applicants should monitor for new interpretive guidance from DHS and updates to the DOS Foreign Affairs Manual as these policies evolve.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
