New Lawsuit Challenges 'Sweeping' DHS Public Charge Regulation
By Hugh T. Ferguson, NASFAA Managing Editor
The U.S. Citizenship and Immigration Services (USCIS) recently issued updated guidance concerning its public charge regulation, which would give immigration officers more discretion in determining an individual's eligibility for a green card, visa, or admission to the United States.
For immigration purposes, a “public charge” refers to a noncitizen whom the U.S. government determines is likely to become primarily dependent on the government for subsistence. USCIS considers a number of factors in making a public charge determination, including previous reliance on public benefits.
According to the guidance, USCIS officers will now consider “any other factor” relevant to a green card applicant’s “receipt of means-tested public benefits, such as cash assistance for income maintenance, housing assistance, food stamps, financial aid for college, or any other similar benefit.”
For any means-tested public benefits received before September 18, 2026, a USCIS officer will only consider receipt of public cash assistance for income maintenance and long-term institutionalization at the government’s expense. For any means-tested public benefits received on or after September 18, 2026, USCIS officers will have expanded discretion to consider “any and all benefits” to assess an applicant’s likelihood of becoming a public charge.
On September 14, prior to the rule’s effective date, New York Attorney General Letitia James, along with a coalition of 21 states and the District of Columbia, filed a lawsuit seeking to halt the administration’s guidance, arguing that it offers immigration officers “sweeping discretion” to deny green card applicants, which could also put a noncitizen parent's green card application at risk if their child participated in a public benefit program.
The legal challenge to the rule argues that USCIS’ new rule violates the Administrative Procedure Act and exceeds the Department of Homeland Security’s (DHS) statutory authority.
When the Trump administration put forward a similar rule in 2020, another legal challenge, led by James, resulted in the U.S. Court of Appeals for the Second Circuit upholding a preliminary injunction against the rule.
Stay tuned to Today’s News for more information about this final rule and the ongoing legal challenge.
Publication Date: 10/2/2026
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