Definition vs Discretion: New York Leads the Fight Over America’s Vanishing “Public Charge” Test
Imagine applying for a green card and being told your case turns on whether you are likely to become a “public charge”. A fair question follows: what does that mean? Since 18 September, the regulations no longer say. Under a new Department of Homeland Security rule, the official definition has simply been deleted.
This piece examines the legal definition of “public charge”, a phrase in American immigration law since 1882 that helps decide who may stay. When a term like that loses its edges, so does the protection it offers.
The story
On 14 September 2026, New York City led Chicago, San Francisco, Santa Clara County, Seattle, King County and the Public Rights Project in filing a lawsuit in the US District Court for the Southern District of New York, the federal trial court covering Manhattan. The same day, New York Attorney General Letitia James filed a parallel suit on behalf of 22 states and the District of Columbia.
Both target the rule DHS published on 20 July. It rescinds (formally cancels) the 2022 regulations that governed public charge decisions and puts nothing in their place. Instead, USCIS guidance directs officers to weigh the “totality of the circumstances”, including use of any means-tested benefit: support available only to people below an income threshold.
The definition
The phrase sits in section 212(a)(4) of the Immigration and Nationality Act, which makes inadmissible (ineligible for a visa, entry or a green card) anyone an officer thinks “likely at any time to become a public charge”. Congress has never defined the term. Since 1996 it has simply listed minimum factors to consider: age, health, family status, finances, and education and skills.
For more than two decades, that gap was filled consistently. Federal guidance issued in 1999 treated a public charge as someone likely to become primarily dependent on the government for subsistence, shown by cash assistance for income maintenance or long-term institutional care at public expense. Food aid, health cover and housing help did not count. The 2022 rule wrote that test into regulation.
The first Trump administration tried to widen it in 2019 to include non-cash benefits such as Medicaid and food stamps. That rule met a wave of lawsuits. In New York, Judge George Daniels described it as “a new agency policy of exclusion in search of a justification.”
The shift and the debate
This time, DHS has not redefined the term. It has removed the definition altogether, stating in the rule that it is putting forth “no definition of the term ‘public charge.’”
The department’s case deserves to be put fairly. It argues that the statute never fixed a meaning, that no regulations governed public charge at all from 1882 until 2019, and that the 2022 rule tied officers’ hands. It points to Congress’s 1996 welfare reforms, which declare that immigrants should be self-reliant and that benefits should not encourage migration. And because Congress expressly barred officers from weighing benefits used by certain victims of violence and trafficking, DHS reasons that benefits must count for everyone else.
The challengers reply that a century of settled meaning is itself part of the law. Both lawsuits argue the rule is “arbitrary and capricious” under the Administrative Procedure Act (the statute requiring federal agencies to explain their decisions rationally), exceeds DHS’s statutory authority and abandons the meaning Congress adopted. “Getting help when you need it is not the same as being dependent on the government,” says Toby Merrill of the Public Rights Project in the city’s announcement.
The stakes are not abstract. DHS’s own analysis estimates that federal and state benefit payments could fall by about $13.05 billion a year as households withdraw from programmes, including US citizens in mixed-status families. According to CNN, around 588,000 applicants face public charge reviews each year. At the time of writing, no court order appears to have paused the rule.
Discretion without definition
Discretion has a proper place in immigration law, and DHS is right that Congress never pinned the phrase down. But a standard nobody can state in advance is hard to obey and harder to challenge. A parent deciding whether to accept free school meals cannot consult an officer’s future judgment.
Clear definitions are not bureaucratic fussiness. They are what let people arrange their lives around the law, and what let courts check whether officials have kept to it. Whatever the judge decides, the deeper question is whether “public charge” remains a legal test, or becomes whatever the person behind the desk thinks it is.