USCIS public charge guidance leaves EB-5 capital treatment unresolved

US Citizenship and Immigration Services incorporated its public-charge guidance into Volume 8 of the USCIS Policy Manual on 18 September 2026, recording it as effective from that day. The guidance runs to twelve chapters at 8 USCIS-PM G, governs how officers decide Form I-485 applications, and lists investors among the categories it covers. It does not say how capital already committed to an investment should be assessed.

Issued in August, effective in September

USCIS issued the guidance by policy alert on 18 August 2026, saying it “becomes effective September 18, 2026”; the technical update of 18 September records that it “became effective”. The underlying rule at 91 FR 45324 carries the same date in the Federal Register’s own record, and it is that rule which set the filing-date tracks deciding whose application falls under the new framework, covered in this publication’s report of 29 August.

The test officers apply

Chapter 4 states the threshold. The determination is prospective and made on the totality of the applicant’s circumstances, and the officer must decide whether those circumstances “suggest that the alien is more likely than not to become a public charge”. What is being predicted is defined loosely: Chapter 2 treats a person as likely to become a public charge if they are likely to become dependent on government to meet basic needs such as shelter, food or healthcare, and notes that the statute defines neither the term nor the phrase.

The chapter adds that there is “no ‘bright-line’ test”, and allows a single exception to the totality approach: no one factor is outcome-determinative “except for the lack of a sufficient Form I-864 when one is required”. The officer weighs five statutory factors together:

• age;
• health;
• family status;
• assets, resources and financial status;
• education and skills.

Chapter 10 keeps the burden on the applicant, where it “never shifts to USCIS during the adjudication process”.

Whom the guidance binds

Chapter 3 limits it to USCIS determinations made “in the context of adjudicating” Form I-485. It does not reach:

• applicants for admission at ports of entry, who are inspected by Customs and Border Protection;
• immigrant and nonimmigrant visa applicants before the State Department;
• adjustment applications decided by the Executive Office for Immigration Review.

For an EB-5 investor whose application falls under the new framework — those postmarked or submitted on or after 18 September — this document governs the USCIS determination. An investor taking an immigrant visa at a consulate is outside it, and what applies there was not examined here.

Investors are named without qualification. Chapter 3’s table of employment-based applicants subject to the public-charge ground lists them alongside priority workers, advanced-degree professionals and skilled workers, and its footnote runs through the fifth-preference categories — every set-aside, regional-centre and non-regional-centre alike, with spouses and children. No exemption appears.

Investments and liabilities enter the assessment

Chapter 5 brings investment into the calculation. USCIS considers household assets “for example, investments or home equity”, and in the same passage household liabilities “both secured and unsecured, such as loans” — counted alongside assets, the chapter says, “to avoid artificially inflating the calculation”, since debts reduce what is actually accessible. Carrying debt is not itself a basis for inadmissibility.

For an investor who borrowed to fund the investment, both sides of that entry are in the record. What the twelve chapters do not contain is any treatment of the capital’s character: nothing addresses funds placed at risk in a new commercial enterprise, or whether capital already committed counts as a resource the applicant can reach.

Where the one exception does not reach

Chapter 6 says when Form I-864 is required, and for employment-based applicants it usually is not. The obligation arises only where the petitioner is a relative of the applicant — a spouse, parent, child, adult son or daughter, or a citizen sibling — or where such a relative holds 5 percent or more of the petitioning entity. Our reading is that an EB-5 investor, who petitions on their own behalf, ordinarily meets neither trigger; the guidance does not say so.

Where the form is not required, its absence is not a deficiency, and the exception in Chapter 4 never engages. The case is decided wholly in the totality, with the applicant carrying the burden throughout.

None of the fourteen worked scenarios in Chapter 10 depicts an EB-5 investor. An affidavit of support appears in all fourteen. USCIS says the scenarios are not exhaustive and do not dictate the outcome of any case.

The benefit line runs through 18 September

Chapter 10 says that applications for, approvals or certifications to receive, and receipt of means-tested public benefits “after September 18, 2026” will be highly relevant. A benefit is means-tested, Chapter 2 says, where eligibility turns on income or assets falling below a threshold, and public where the assistance comes from a government agency or appropriated funds. Its examples are expressly non-exhaustive and include financial aid for postsecondary education alongside cash assistance, housing, food and health coverage. Social Security, Medicare and unemployment insurance are excluded as earned benefits.

Receipt is attributed only to the person named as beneficiary, so a relative’s benefits are not the applicant’s. One qualification runs the other way: where someone the applicant is legally obliged to support receives a benefit because the applicant’s own income or assets fall below a threshold, that shortfall is weighed under the financial-status factor. For the earlier period the narrower categories survive, and the scenarios show officers disregarding benefits received before 18 September that were neither cash assistance for income maintenance nor long-term institutionalisation at government expense. USCIS also replaced Form I-485 that day with a 09/18/26 edition aligned to the rule, with “no grace period” between editions.

If the finding goes the other way

Chapter 9 states that the public-charge ground generally cannot be waived for anyone seeking permanent residence, and neither of the two narrow exceptions it lists is available to an investor.

That leaves the public-charge bond, which is discretionary and cannot be posted uninvited: USCIS must invite it, through a notice of intent to deny, and accepts none without that invitation. A condition is that the person receive no means-tested public benefits while the bond is in effect. The minimum is $1,000, set against the benefits the applicant is thought likely to draw; where the appropriate figure would exceed $100,000, the guidance treats that as a negative factor weighing against offering a bond at all.

What is unresolved

Two suits challenging the rule were filed in the Southern District of New York on 14 September, four days before it took effect: State of New York v. US Department of Homeland Security and City of New York v. United States Department of Homeland Security. The New York attorney general’s account of the states’ filing puts twenty-two states and the District of Columbia behind it, and seeks an order declaring the rule unlawful and vacating it on Administrative Procedure Act grounds. USCIS’s alerts index, read on 21 September, carried no notice that the rule had been stayed — though nothing on that index was more recent than 11 September, before either suit was filed. The docket entries were not read, and this article therefore says nothing about what any court has since done.

The other open question is the guidance’s own. It brings investors expressly within scope and counts investments among household assets, and then stops: no chapter says how an officer should weigh capital that is committed and at risk by design, and none of the fourteen scenarios reaches the question.