Think Immigration: Why We Have Concerns About What the Trump Administration Considers a Public Charge

The Department of Homeland Security (DHS) is once again proposing major changes to how immigration officers decide whether someone is likely to become subject to the “public charge” ground of inadmissibility by obtaining certain public benefits. The framework officers use in making that decision is an important element in the determination of whether a person is permitted to enter the United States or obtain lawful permanent residence (i.e., a green card).

What is the Public Charge Ground of Inadmissibility?

In simple terms, the proposed public charge rule concerns how DHS officers will evaluate whether someone is likely to use public assistance in the future, a question that impacts a person’s ability to obtain a variety of immigration benefits. Section 212(a)(4) of the Immigration and Nationality Act (INA) provides that, with certain exceptions, a foreign citizen is ineligible for a visa and cannot be admitted into the United States if a State Department consular officer (for purposes of a visa) or a Department of Homeland Security officer (for purposes of admission) believes the individual is “likely at any time to become a public charge.” The law requires officers to consider specific factors in determining whether someone is likely to become a public charge, including the person’s age, health, family status, financial status and resources, and education and skills. At its core, the law aims to prevent people from entering the United States if they are likely to depend on certain public benefits.

The problem is that Congress didn’t define what it means to be a “public charge.” The law doesn’t explain which benefits count or how much assistance is too much. Although Congress laid out factors to consider and took pains to describe who is entitled to different types of public benefits when it enacted the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA) (most foreign citizens aren’t entitled to most benefits), the Executive Branch is left to fill these gaps.

History of the Public Charge Inadmissibility Ground in a Nutshell

Laws to prevent individuals from entering the United States on public charge-type grounds have a tortured history extending more than 140 years into the past. A bird’s eye view of that long-and-winding road looks like this:

• Pre-1999 / Case-by-Case Decisions without Clear Guidance: Prior to enactment of the INA, and then after its enactment through 1999, public charge inadmissibility decisions were generally made one case at a time based on broad-stroke agency guidance. That guidance largely derived from decisions issued across the decades by the Department of Justice’s Board of Immigration Appeals (BIA), along with a splattering of decisions handed down by various federal courts.
• 1999-2019 / INS Issues Guidance: In 1999, the former Immigration and Naturalization Service (INS) first issued formal guidance to guide officers in determining whether an individual is likely at any time to become a public charge. The 1999 guidance remained in place for two decades, up until the first Trump Administration issued a final rule in 2019.
• 2019-2021 / DHS under Trump 1.0 Issues More Restrictive Regulations: That rule, for the very first time, defined “public charge” by regulation and instituted a detailed framework for evaluating whether someone is subject to the public charge inadmissibility ground. The rule breathed new life into that provision and, as you might expect, expanded the factors an officer must consider in determining who is subject to it. The 2019 rule went into effect, but only briefly. Several federal courts enjoined the rule, meaning they barred it from going into effect for several months.
• 2021 / DHS under the Biden Administration and a Federal Court Eliminate the Trump 1.0 Rule: After Joe Biden assumed the presidency in January 2021, his administration refused to continue to defend the 2019 rule in federal court, ultimately leading to a decision by a court to strike it down. The Biden Administration subsequently issued a rule to remove the 2019 regulations from the books.
• 2022 / DHS Restores the Narrower Approach: Thereafter, in 2022, DHS issued a new public charge rule that largely resumed the narrower policies that had been outlined in the earlier 1999 INS guidance and enshrined those policies in regulation.
• 2025 / DHS under Trump 2.0 Proposes Rolling Back the Rules again: Never to be outdone, last November, less than a year into the second Trump Administration, DHS issued yet another proposed public charge rule. The agency took public comment on that rule until December 19, 2025, and we are now awaiting issuance of a final rule.

What Does the New Public Charge Rule Propose to Do?

In its new rule, DHS plans to take us back to the future. The rule would eliminate the public charge regulations from the Biden era, replace them with nothing, and harken back to the pre-1999 era when officers evaluated public charge questions against a backdrop of old BIA decisions. Worry not, they say…if and after the rule becomes final and effective, DHS will “formulate appropriate policy and interpretive tools” to guide DHS officers in making decisions in individual cases. Adding a veneer of mystery appreciated by no one, they give no hint of what those policies and tools will look like, but they do declare that DHS officers will no longer be improperly “straitjacketed” by regulations that limit the factors and benefits they can consider.

Central to the proposal is DHS’s determination to remove regulatory definitions of “public charge,” “public benefits,” and related terms, as well as the list of public benefits that may be considered. DHS argues that the current rules, instituted during the prior administration, prevent officers from considering relevant evidence and making accurate, individualized determinations. DHS proposes that officers should instead consider any and all relevant, “case-specific factors,” informed by data about the foreign citizen’s self-sufficiency and the promised policy guidance. In particular, DHS asserts that the 2022 Final Rule’s (and by extension, the 1999 guidance’s) narrow focus only on certain public benefits that provide cash assistance and long-term institutionalization at government expense fails to fully reflect whether someone is self-sufficient or dependent on public benefits.

As with the 2019 rule, DHS largely justifies its policy by citing PRWORA’s “statement of policy” that noncitizens should rely on their own capabilities and family or private resources rather than public benefits. According to DHS, restoring broad discretion is necessary to align public charge determinations with congressional intent and historical practice.

Notably, DHS acknowledges that eliminating the current rules would result in reduced participation in public benefit programs to the amount of nearly $9 billion each year. This fear- and confusion-induced reduction would largely impact individuals who are eligible for the benefits, a great many of whom aren’t subject to the public charge ground. DHS also admits that the reduced participation in public benefits could have harmful effects on public health, community stability, and economic outcomes. To their mind, however, these significant effects and costs are inherent to the statutory scheme and do not outweigh the benefits of the “flexibility” they seek to set in place.

DHS estimates that almost 588,000 applicants to adjust status to lawful permanent residence (i.e., to obtain a green card) would be subject to public charge review each year under the proposed approach. But this figure does not account for the millions of foreign nationals seeking admission at ports of entry each year who could be denied entry to the United States on public charge grounds. So the true costs of the rule appear to be dramatically undervalued. (As an aside, it is fairly safe to assume that the State Department will quickly adopt a new DHS public charge policy, with significant implications for immigrant and nonimmigrant visa applicants who are generally incapable of challenging an unfavorable decision on their application. The rule does not account for these costs either.)

AILA's Comment on the Public Charge Proposed Rule - Is AILA Concerned?

Yes—very concerned. I was privileged to participate in drafting the AILA comment on the NPRM as a member of the Benefits Litigation Committee. The comment is long and dense, but some of the highlights of AILA’s arguments are summarized below:

• Overview: Generally, the proposed rule would unjustifiably eliminate the public charge regulatory framework without replacing it with clear and reasoned standards; undermine decades of precedent; violate administrative law requirements under the Administrative Procedure Act (APA); and lead to widespread confusion, inconsistent decisions, and fear-based “chilling effects” on the use of benefits that will harm immigrant families and U.S. citizen households.
• Arbitrary Officer Decisions Due to Lack of Clarity: The existing regulatory framework defines key terms and establishes clear limits on what benefits may be considered in public charge determinations, whereas the proposed rule would create a vacuum without any regulatory standards at all. In this vacuum, adjudicators would be permitted to consider an almost limitless range of factors, including past or future receipt of benefits, with no clear instructions how much weight any factor should receive. AILA warns that this open-ended approach invites arbitrary and capricious decisions, increases the risk of bias, and will lead to inconsistent outcomes.
• Lack of Transparency and Accountability: Relying on future policy assertions that are not subject to formal public input is incompatible with the Administration’s asserted goals of transparency, accountability, and the rule of law.
• Improper Reliance on Antiquated Laws: DHS’s reliance on antiquated immigration statutes from the late 19th century, such as the Immigration Act of 1882, to justify its public charge interpretations is flawed and troubling. According to AILA, these statutes are rooted in prejudice and bear little relevance to today’s carefully structured public charge provisions (or, we might add, to our current and far more complex public benefits system writ large).
• “Chilling Effects”: The proposed rule does not adequately address the rule’s likely “chilling effects” that will discourage individuals from obtaining public benefits which they or their family members (including U.S. citizens in mixed-status households) are entitled to receive. AILA warns that this failure will undermine public health, family stability, and economic resilience.
• Public Health and Welfare Impacts: Because the proposed rule does not clearly define which benefits may be considered in future public charge determinations, DHS’s estimate the downstream impacts on healthcare access, nutrition assistance, housing stability, and child welfare of millions of people is unreliable. The failure to grapple with these foreseeable harms violates requirements under the APA.

Having laid out its thoughts and arguments, AILA urges DHS to withdraw its proposed rule in its entirety. If the Department wishes to modify public charge policy, AILA insists it should do so through clear, evidence-based rules that appropriately limits discretion and aligns with the longstanding interpretations of the law.

Why This Matters

If the proposed rule is finalized as drafted, it is likely to have several important repercussions for non-citizens, their family members, and American communities generally:

• Greater Cost and Complexity for Green Card Applicants: The process to obtain a green card is likely to become more complex and more costly for all applicants.
• Less Certainty for Green Card Applicants: Eligibility for a green card would likely become less certain for many individuals due to increased officer discretion and lack of clear standards, particularly low-income individuals who are seeking a green card based on a family member or the diversity visa lottery.
• Potential Obstacles for Nonimmigrant Visa Applicant and Holders: The obstacles to individuals entering the country as nonimmigrants (e.g., as tourists, visitors for business, students) or obtaining nonimmigrant visas at a Department of State consular office may become more challenging and complex.
• Ripple Effects for Public Health and Welfare: Many individuals who require public benefits or assistance to sustain themselves and are entitled to them, including U.S. citizens and households with U.S. citizens, may be deterred from obtaining them, with potentially significant adverse economic, public health, and public welfare consequences for American communities.

What's Next?

At some point in the not-too-distant future, DHS is likely to issue a final rule that responds to comments and establishes a new policy. In the meantime, it is unclear how actions taken today might impact a future determination of whether an individual is likely to become a public charge and therefore ineligible for adjustment of status.