How Does Receipt of Public Assistance Affect My Application for an Adjustment of Status (AOS)?
Kevin Swartz • February 4, 2022
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The answer to this question changed considerably after President Biden rolled back some of former President Trump’s harsh immigration policies. In 2019, Trump had issued an executive order known as “The Public Charge Final Rule,” which caused the receipt of most public assistance programs to negatively impact AOS applications, and with few exceptions (e.g. emergency services and Medicaid recipients who were pregnant or under the age of 21).
Under the current administration, your receipt of public assistance may continue to negatively affect your AOS petition, but only under limited circumstances. It depends on 1) what your current immigration status is; 2) the type of public assistance you are receiving; and 3) what your personal circumstances are.
If your current immigration status is that of asylee or refugee, then your past or current receipt of public assistance will generally not affect your application for adjustment of status (AOS). If you are not an asylee or refugee, the following applies.
With respect to the type of assistance received, United States Customs and Immigration Services (USCIS) will evaluate whether your past or current receipt of public assistance indicates that are likely to become a “public charge,” meaning someone who is primarily dependent on the government for subsistence. Your application will be denied if, at the time of your application, USCIS finds that you are currently a public charge or will likely to become a public charge at some point in the future.
In making its determination, USCIS may consider only certain factors, however: the extent to which you relied on 1) public assistance for income maintenance; and 2) whether you have required long-term care in an institution at the government’s expense. The following types of public assistance fall within the first category (public assistance for income maintenance) and will negatively affect your application in certain situations:
- Supplemental security income (SSI);
- Temporary Assistance for Needy Families (TANF) cash assistance; state and local cash assistance programs that provide benefits for income maintenance (often called ‘general assistance’ programs);
- Programs to support applicants who are institutionalized for long-term care, e.g. in a nursing home or mental health institution)
The longer you rely on cash assistance or institutional care listed above, the more heavily USCIS will weigh it against your application. But, even if you have relied on one of the public assistance programs listed above, or required long-term institutional care for a period of time, USCIS may not necessarily deny your AOS application. USCIS is required to evaluate this information within the context of the totality of all your personal circumstances. Your personal circumstances include many different factors, including but not limited to: your age, health, family situation, financial status, the resources available to you, education, and vocational skills.
If you received non-cash benefits (other than institutionalization for long-term care) or special-purpose cash benefits that were not for income maintenance, USCIS will not weigh that against you. The following is a non-exhaustive list of non-cash benefits that will not negatively affect your application:
- Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases;
- Use of health clinics, short-term rehabilitation services, and emergency medical services (other than support for long-term institutional care;
- Children’s Health Insurance Program (CHIP);
- Nutrition programs, including food stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
- Housing benefits;
- Child care services;
- Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
- Emergency disaster relief;
- Foster care and adoption assistance;
- Educational assistance, including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
- Community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
- State and local programs that are similar to the programs listed above
How will my AOS application be affected if my family member is the one who is receiving public assistance, not me?
If your family member currently or previously relied on public assistance, but not as their sole means of financial support, USCIS will not weigh that benefit against you in evaluating your application. But if your family member currently or previously relied on public assistance as their sole means of financial support, then USCIS will make a case-by-case determination. They will evaluate your family member’s public assistance along with the totality of your personal circumstances to determine whether you are likely to become a public charge at some point in the future.
Can Trump’s old policy be reinstated if Biden loses the next election?
While it is very possible that the next republican administration may reject Biden’s current policy and once again disfavor AOS petitions from public assistance recipients, such a change will unlikely apply retroactively to AOS petitions filed during the current administration. Trump’s 2019 executive order, the “Public Charge Final Rule” applied only to applications that were filed on or after that executive order went into effect. Therefore, assuming the next Republican administration reissues the same executive order as Trump’s 2019 “Public Charge Final Rule,” that change will apply only to those petitions filed after that executive order is reissued.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
The Department of Homeland Security (DHS) published its final rule eliminating the longstanding "duration of status" (D/S) policy for F, J, and I visa holders, replacing it with a fixed period of admission effective September 15, 2026. This rule requires that those who need additional time to complete their programs must file Form I-539 with USCIS or travel abroad and seek to reenter to extend their authorized period of stay. F and J visa holders present in the U.S. and in valid status on September 15, 2026, will be allowed to remain in the United States until the Program End Date listed on their current Form I-20 (for F-1s) or Form DS-2019 (for J-1s), up to a maximum of four years (until September 15, 2030) plus a 60-day grace period for F-1s and a 30-day grace period for J-1s, without filing an Extension of Status request with USCIS. However, this safety net only applies while staying in the U.S.; international travel and subsequent reentry after September 15, 2026 will result in readmission under the new rule with an I-94 that expires on the Program End Date or Employment Authorization Document (EAD) expiration, but no later than four-years after their date of re-entry. Additionally, once re-admitted under the new rules, F-1s will only receive a 30-day grace period. Immediate Practice Tips: Any F-1 or J-1 nonimmigrant currently in the U.S. who plans to change programs, start a new degree level, or needs more time to complete their studies must work with their school or program sponsor to update their SEVIS record and receive an extended Form I-20 or DS-2019 before September 15, 2026. Eligible F-1 students should submit their post-completion OPT or STEM OPT work authorization applications (Form I-765) before September 15, 2026, to secure their status and drastically reduce the likelihood of needing a Form I-539 extension application. Any F-1 student who is eligible to apply for OPT or STEM OPT before March 18, 2027, should do so as soon as they are eligible to file their Form I-765. Since F-1s can file OPT applications up to 90 days in advance of graduation, F-1 students graduating before June 15,2027, should be able to file their OPT applications before March 18, 2027, and should do so to avoid also having to file Form I-539 to extend their stay. Thus, most F-1 students graduating in December 2026 and May/June 2027 should be able to take advantage of the transition rule’s delay in having to file Form I-539 applications and should only need to file Form I-765 to apply for OPT. Incoming F-1 and J-1 students who can enter the United States before the September 15, 2026 effective date (within the permissible 30-day window prior to their program start) should do so to benefit from the transition rules, including the full 60-day F-1 grace period and deferred extension requirements. Students (F-1 and J-1) who are planning international travel should return before the effective date if possible to preserve their transition benefits. There are many parts of the rule that are not discussed here. If you are currently an F-1 or J-1 visa holder, you should proactively coordinate with your institutions and international office to protect your status and stay informed.
U.S. Citizenship and Immigration Services (USCIS) has released updated policy guidance detailing how officers will evaluate "public charge" inadmissibility for individuals applying for green cards through adjustment of status. This update follows a Department of Homeland Security (DHS) final rule that rescinds the 2022 public charge regulations. The new policy takes effect on September 18, 2026 , and applies to all green card applications (Form I-485) postmarked or submitted on or after that date. Who Is Subject to the Public Charge Rule? Most family-based and employment-based green card applicants will be subject to the public charge ground of inadmissibility. This includes spouses, children, and parents of U.S. citizens or legal permanent residents, as well as most employment visa preference categories, investors, and diversity visa applicants. Certain categories remain explicitly exempt under immigration law. These include: Asylees and refugees Victims of human trafficking (T visa) or crime (U visa) Violence Against Women Act (VAWA) self-petitioners Special Immigrant Juveniles Temporary Protected Status (TPS) applicants Certain military-related applicants and other designated humanitarian groups How USCIS Will Make Determinations USCIS officers will evaluate whether an applicant is likely to become a public charge by reviewing the totality of their circumstances on a case-by-case basis. Key factors include: Five Statutory Factors: Age, health, family status, assets/financial resources, and education or skills. Affidavit of Support: Submission of Form I-864 executed by a sponsor. Use of Public Benefits: USCIS will look at means-tested public benefits, such as cash assistance for income maintenance, housing assistance, food stamps (SNAP), or college financial aid. Note on timing: For benefits received before September 18, 2026, USCIS will only consider public cash assistance for income maintenance and long-term institutionalization at government expense. For benefits received on or after September 18, 2026, the broader consideration of all listed means-tested benefits will apply. Public Charge Bonds If an officer determines that an applicant is inadmissible solely on public charge grounds, USCIS may issue a Notice of Intent to Deny that invites the applicant to post a public charge bond using Form I-945. If an invited applicant successfully posts the required cash or surety bond, USCIS may approve the application for permanent residence. Public charge bonds can only be submitted if explicitly invited by USCIS. Santos Lloyd Law Firm will continue to monitor immigration developments closely and provide updates as further implementation details are released. For more information, please access: https://www.uscis.gov/newsroom/alerts/uscis-issues-guidance-on-making-public-charge-inadmissibility-determination
The Department of Homeland Security (DHS) is considering a regulatory proposal that would remove the discretionary 60-day grace period currently available to certain nonimmigrant visa holders (including H-1B, L-1, TN, E, and O-1) and their dependents. The draft rule is currently undergoing interagency review by the Office of Management and Budget (OMB) and has not yet been formally published for public feedback. What This Means Right Now Nothing changes today. The 60-day grace period remains in effect while this rule goes through the approval process. Under current rules, if your job ends early, you have up to 60 days (or until your I-94 expires) to leave the U.S., find a new sponsor, or apply to change status. What Could Change If approved, foreign workers who lose their jobs would no longer get automatic time to find a new employer or change status from within the U.S. They would generally be required to leave the country immediately. Next Steps Once the OMB finishes its initial review, the proposed rule will be published in the Federal Register, opening a public comment period of 30 to 60 days. Based on feedback received during this time, DHS may decide to alter, withdraw, or proceed with the proposal. If the government decides to finalize the rule, the entire process will likely take several months before taking effect. Santos Lloyd Law Firm will continue to monitor developments closely and will share updates on our immigration blog and social media pages as more details emerge.
