United States | DHS proposes to rescind 2022 public charge rule and give immigration officers broader discretion in determining admissibility

Today, the Department of Homeland Security published a notice of proposed rulemaking (NPRM) in the Federal Register that proposes to “rescind the 2022 public charge ground of inadmissibility regulations.”

Key Points:

• According to the NPRM, DHS aims to restore to immigration officers a “broader discretion to evaluate all pertinent facts” in their public charge determinations in adjustment of status adjudications.
• DHS proposes to eliminate the 2022 rule, which it describes in the NPRM as “inconsistent with congressional intent” and “unduly restrictive.”
• DHS states in the NPRM that the agency “intends, after the removal of these regulations, to formulate appropriate policy and interpretive tools that will guide public charge inadmissibility determinations while empowering officers to consider: (1) the mandatory statutory factors in section 212(a)(4)(B) of the INA … (2) all individualized case-specific factors and circumstances relevant to an alien’s case; and (3) any empirical data relevant to an alien’s self-sufficiency.”
• In a summary of the Trump administration’s immigration policies for the year to date published on Nov. 13, 2025, in reference to the NPRM, USCIS states that foreign nationals “have the burden of proof in demonstrating that they are not likely at any time to become primarily dependent on the government for subsistence.”
• The NPRM also addresses breach and cancellation procedures for public charge bonds under 8 CFR 103.6.
• According to the NPRM, “DHS is not proposing to substantively change the collection of information related to the statutory minimum factors but will continue to request information in a manner that maximizes practical utility of the information collection and relevance to the totality of the circumstances analysis.”
•  Public comments can be submitted here on or before Dec. 19, 2025.
• The State Department has separately issued guidance to consular officers regarding public charge determinations but has not yet published guidance on the issue.

Additional Information: Under President Trump’s first administration, in 2019 DHS made sweeping changes to public charge inadmissibility determinations that were later vacated in court. Under the Biden administration, on Sept. 9, 2022, DHS published a final rule to codify pre-2019 guidance related to the “public charge” ground of inadmissibility.

Publication of the NPRM is the first step in the formal rulemaking process. Changes will not take effect until DHS issues a final regulation with a specified effective date. The agency is required to consider comments from the public in formulating the final rule. BAL will continue to monitor related developments and provide updates.

This alert has been provided by the BAL U.S. Practice Group.

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