US public-charge rule creates three tracks by Form I-485 filing date

The United States Department of Homeland Security will change the framework used for public-charge determinations on 18 September 2026. For EB-5 investors inside the United States, the relevant dividing line is not the date of the investment petition. It is the date on which Form I-485 is postmarked or electronically submitted.

The final rule rescinds the 2022 regulatory framework and restores broader discretion to officers applying the statutory totality-of-the-circumstances test. It does not change the EB-5 investment requirements, and it does not govern visa decisions made by the Department of State.

The filing date selects the framework

The transition provisions produce three tracks for adjustment applications that reach USCIS:

• Applications filed before 23 December 2022 remain governed by the 1999 Interim Field Guidance.
• Applications filed from 23 December 2022 through 17 September 2026, accepted and still pending when the new rule takes effect, remain under the 2022 final rule.
• Applications postmarked or electronically submitted on or after 18 September 2026 fall under the new framework.

That sequence comes from the 2026 final rule, which preserves the 2022 rule for pending pre-effective-date applications and notes that applications predating the 2022 rule continue under the 1999 guidance. The 2022 final rule took effect on 23 December 2022.

The postmark attached to the application currently before USCIS controls. DHS says it will not use the postmark on an earlier submission that USCIS rejected under its filing rules.

What broad discretion means here

The statute itself has not changed. Section 212(a)(4) of the Immigration and Nationality Act requires, at a minimum, consideration of five matters: age; health; family status; assets, resources and financial status; and education and skills.

The new rule removes definitions and provisions that DHS says constrained that analysis. From 18 September, officers may consider the applicant’s receipt of means-tested public benefits, other case-specific evidence and empirical information relevant to self-sufficiency, alongside the five statutory factors. DHS describes this as a return to a more discretionary assessment, not a formula in which one item carries a fixed score.

Receipt of a benefit is not by itself a finding of inadmissibility. The rule says weight may depend on the type, recency, duration and amount of support, the circumstances in which it was received, whether more than one benefit was involved, and the rest of the applicant’s record.

Earlier benefit history has its own cutoff

The effective date also divides the benefit history that may be considered. For periods before 18 September 2026, DHS says it will follow the 2022 rule. That means previously excluded means-tested benefits are not brought back into the analysis for the earlier period; the relevant benefit categories remain public cash assistance for income maintenance and long-term institutionalisation at government expense.

The treatment can change if receipt continues on or after 18 September. Post-effective-date receipt may enter the broader analysis even when the same benefit was excluded for the earlier period.

The inquiry is centred on the applicant. DHS says benefits received by other people are generally not relevant, except where the facts bear on the applicant’s own assets, resources or financial position. The rule therefore does not convert a family member’s benefit receipt into an automatic negative factor.

Where EB-5 fits — and where it does not

USCIS’s Form I-526E instructions allow an investor to file Form I-485 concurrently with or after the petition when approval would make an immigrant visa immediately available. It is that adjustment application, rather than Form I-526E itself, that brings the public-charge filing cutoff into the EB-5 process.

An investor’s capital may form part of the assets, resources and financial-status factor. It is not a statutory safe harbour and does not displace the other factors. DHS has said that most employment-based adjustment applicants may see little change, but the rule creates no EB-5 exemption.

The distinction matters for the route taken. The DHS rule does not govern visa determinations made by the State Department. It does, however, apply to applications for admission made on or after 18 September. The separate uncertainty around immigrant-visa interview scheduling and EB-5 is covered in The Legation Times’ 28 August analysis.

What the rule leaves to guidance

USCIS said it would issue subregulatory guidance by the effective date. That guidance may describe examples and evidentiary treatment, but DHS said it would not use it to impose an exhaustive list of benefits or prevent officers from considering other relevant circumstances.

For a pending adjustment file, the public record therefore answers the first question by date: which framework applies. It does not decide the outcome. The result remains an individual inadmissibility determination made from the record under the governing track.