John Nicelli & Associates: USCIS Reinstates Stricter Public Charge Test for Green Card Applicants — NYC Immigration Attorney Explains What Changed September 18
As of September 18, 2026, U.S. Citizenship and Immigration Services has been applying a significantly stricter public charge test when deciding whether to approve a green card application. The change follows a final rule published by the Department of Homeland Security on July 20, 2026, rescinding the more lenient 2022 public charge regulations, with USCIS issuing updated guidance to officers on August 18, 2026. New York immigration attorney John A. Nicelli, of John Nicelli & Associates, says the shift has already caught some applicants off guard.
What's Actually Changing
The public charge ground of inadmissibility, found in the Immigration and Nationality Act, allows USCIS to deny a green card if an applicant is likely to become primarily dependent on the government for support. Notably, the INA does not actually define “public charge” or what it means to be “likely at any time to become a public charge”; instead, Congress directs USCIS officers to weigh five statutory factors on a case-by-case basis: age, health, family status, assets and financial resources, and education and skills. Under the new guidance, officers now consider a broader range of public benefits than under the 2022 rule, weighing an applicant's full circumstances rather than a narrower set of factors. A properly completed Form I-864 affidavit of support remains important, but USCIS guidance makes clear it is not necessarily sufficient on its own to overcome public charge concerns.
Who This Affects
The public charge test applies to most people adjusting status to a green card through a family member or, in many cases, an employer, unless their immigration category is specifically exempted, such as refugees, asylees, and certain applicants under the Violence Against Women Act or U and T visa categories.
“A lot of my clients assume this only affects people who are currently receiving benefits,” said John Nicelli. “In reality, this is about how an officer evaluates your entire financial picture across factors like age, health, family status, assets, and education, not just whether you've used a specific program.”
John Nicelli said the timing details matter most: guidance indicates that public benefits received on or after September 18, 2026, receive broader consideration than benefits received before that date, making the exact timing of any benefit use an important factor in cases still pending.
What Applicants Should Do Now
John Nicelli, an immigration lawyer based in Manhattan, NY, recommends that anyone with a pending or upcoming green card application review their household's benefit history with an immigration attorney rather than making assumptions, ensure their Form I-864 is as complete and well-documented as possible, and avoid abruptly dropping benefits without legal guidance, since some programs and applicant categories remain exempt from consideration entirely. A New York City immigration lawyer can help applicants weigh their specific circumstances before filing.
Frequently Asked Questions
Does the new public charge rule apply to every green card applicant?
No. Certain categories, including refugees, asylees, and many applicants under the Violence Against Women Act or U and T visa provisions, are exempt from the public charge ground of inadmissibility regardless of this change. An immigration attorney can help confirm whether a specific case qualifies for an exemption.
Will benefits received before September 18, 2026, count against my application?
Guidance indicates that public benefits received on or after September 18, 2026, may receive broader consideration under the new standard than benefits received before that date.
Is a sufficient Form I-864 enough to avoid a public charge denial?
Not necessarily. USCIS guidance states that a properly filed affidavit of support is an important factor but is not automatically sufficient on its own; officers may weigh it alongside other aspects of an applicant's circumstances.
About John Nicelli & Associates
John Nicelli & Associates is a New York City immigration law firm founded by NYC immigration attorney John A. Nicelli in 1985. The firm has been recognized among the Best Immigration Lawyers in New York City by Expertise.com and as a Top Attorney of North America. John Nicelli began his career focused exclusively on deportation defense before building a practice spanning family immigration, employment immigration, green cards, citizenship and naturalization, waivers of inadmissibility, and immigration litigation. The firm offers consultations in English, Spanish, Portuguese, Polish, and Italian, welcomes LGBTQ+ clients, and provides same-day appointments for urgent matters.