Public Charge 2026: What Changes for the EB-2 NIW and Other Employment Visas
- Martha Salgado
- Aug 24
- 7 min read
Updated: 3 days ago
Updated August 31, 2026 to reflect the latest developments regarding the immigrant visa suspension affecting nationals of 75 countries.
UPDATED - August 31, 2026
The U.S. Department of State has officially confirmed that the January 2026 pause on immigrant visa issuance for nationals of 75 countries is no longer in effect as of August 21, 2026, in accordance with the court’s order in CLINIC et al. v. Rubio.
Nationals of the previously affected countries may submit immigrant visa applications, attend interviews, and the Department of State will continue scheduling immigrant visa interviews.
This change ends the 75-country immigrant visa pause, but it does not eliminate the individual public charge determination or other immigration restrictions that may apply in a particular case.
Public Charge is a ground of inadmissibility for those applying for a visa or adjustment of status in the United States, and hence its importance to the Donald Trump administration.
The Public Charge policy allows determining whether a person applying for a visa, admission to the United States, or adjustment of status is likely to become primarily dependent on the government for their livelihood in the future .
The principle of Public Charge has existed within immigration law since before 1999. Inadmissibility due to public charge is established in INA §212(a)(4) .
Since 1996 , Congress amended that section to require that factors such as age, health, family situation, economic resources, education, and skills be considered.
In 1999 , the former INS published the Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds . That guidance clarified how officers should interpret and apply the concept of public charge, including the idea that a person would be considered a public charge when they were likely to become primarily dependent on the government for their subsistence .
In 2020, on February 24, USCIS incorporated for the first time a comprehensive and specific section on public charge within the USCIS Policy Manual , to implement the public charge rule of the first Trump Administration. This rule was struck down by the courts in 2021, removed from the Policy Manual, and the 1999 interim guidance was reinstated.
On December 19, 2022, USCIS reincorporated a comprehensive public charge guidance into the Policy Manual, which is the current guidance, and which will change as of September 18, 2026 .
Public charge 2026: But what changes?
The new guidance takes effect on September 18, 2026 , and replaces the previous guidance, including the 1999 Interim Field Guidance . USCIS will assess whether an individual applying for adjustment of status is likely to become a public charge, considering all the circumstances .
The five factors identified in the document are:
age;
health;
family situation;
assets, resources and financial situation;
education and skills.
In addition, USCIS may consider other relevant factors and certain public benefits received by the applicant. The decision will be made on a case-by-case basis .
And what about employment-based visas?
Employment-based categories were already subject to public charge rules. That's not new, but the new guidance introduces and emphasizes it.
In the “Categories Subject to Public Charge” column, it directly indicates:
Priority workers → category EB-1;
Professionals with advanced degrees or aliens of exceptional ability → EB-2 category;
Skilled workers, professionals and other workers → EB-3;
Investors → EB-5.
Does that include the EB-2 NIW?
Yes. A person who obtains their permanent resident status through an EB-2 NIW may be subject to a public charge assessment when applying for adjustment of status if the application for Adjustment of Status is filed or submitted electronically on or after September 18, 2026. However, it clarifies that, for benefits received before September 18, 2026 , USCIS will only consider:
cash assistance for income maintenance; and
long-term institutionalization paid for by the government.
And beginning September 18, 2026 , USCIS will be able to consider a much broader range, including housing assistance, food stamps, college financial aid, and other similar benefits.
What happened to the immigrant visa pause for the 75 countries?
When I originally prepared this article, one of the questions I raised was whether the developing public charge framework could be a sign that the 75-country immigrant visa pause was approaching its end. At that time, the policy was still being challenged in several federal courts.
Since then, the situation has changed. A federal court set aside the policy, and on August 28 the Department of State itself confirmed that the January 2026 pause is no longer in effect as of August 21, 2026. Nationals of the previously affected countries may again submit immigrant visa applications, attend interviews, and continue with the applicable immigrant visa process.
This does not mean that public charge has disappeared. Public charge remains a ground of inadmissibility that may be evaluated individually. What ended was the general 75-country pause on immigrant visa issuance.
For a more detailed explanation of the court decision and what changed afterward, you can read our updated article on the 75-country immigrant visa suspension here: Visa Suspension for 75 Countries Overturned | 2026
We must be attentive to the decisions of the State Department, which will have to harmonize or have its own Public Charge framework for immigrant visas.
On January 21, 2026, the issuance of immigrant visas for citizens of 75 countries was suspended because the State Department said it was conducting a comprehensive review of its public charge policies, regulations, and guidelines . Currently, most consulates continue to perform individual public charge assessments, except for nationals of those 75 countries, which include Colombia, Guatemala, Haiti, Nicaragua, and Uruguay.
And this is particularly important: the policy itself instructed consulates to continue doing individual public charge analysis, but at the same time ordered that immigrant visas not be issued to nationals of those 75 countries.
If the stated reason for the pause was to allow the government to review and strengthen the public charge assessment system, and we are now seeing that new framework begin to take shape, it is reasonable to wonder if the justification for indefinitely maintaining the pause is beginning to disappear.
Before the pause ended, there were three important signs:
The first is precisely the new policy that comes into effect on September 18. We now have a much clearer definition of how this administration intends to analyze public charge within the United States.
The second is even more interesting: On August 5, 2026 , the State Department announced it is using a pilot program for Public Charge Bonds for immigrant visa applicants . If a consular officer determines that someone is inadmissible under INA §212(a)(4), in certain cases, the officer may allow them to apply for a bond with USCIS to overcome that issue.
This shows that DOS is already developing mechanisms to address public charge individually in the consular process .
And the third is judicial.
Ullah v. Lafave of June 2, 2026, and De Moura Gomes v. Rubio of July 31, 2026. In these cases, a federal judge determined that the policy of the 75 countries was contrary to the INA because it required visas to be rejected based on a general policy instead of allowing the consular officer to make the individual determination required by law.
In De Moura Gomes v. Rubio , the court noted that the law states that it is the Consular Officer who must determine whether that applicant is likely to become a public charge, considering at least age, health, family situation, assets, resources, financial situation, education, and skills.
The court even pointed out that the suspension forces the officer to keep the case rejected under 221(g), even though the applicant presented sufficient evidence to overcome a public charge determination.
Therefore, the judge concluded on July 31 that, in this case , the policy was contrary to the INA because it substituted a mandatory outcome based on the general policy for the individual analysis mandated by Congress. He ordered that the plaintiff's EB-5 application be individually re-adjudicated.
This case is also especially interesting to us because the applicant was an EB-5 , that is, an employment-based immigrant visa.
On August 7, 2026, in Sayani v. US Department of State , the U.S. District Court for the Northern District of California granted a preliminary injunction against the application of the 75-country policy to the applicants in that case. Specifically, the court ordered that the State Department could not apply the 75-country policy to the immigrant visa applications of Khosrow Sayani and Yafa Rahimian Esfahani . The court found persuasive the prior decisions of Ullah and De Moura Gomes , which had already challenged the legality of applying the public charge suspension across the board.
The important thing is that we no longer have a single isolated decision. Several federal courts are reaching the same conclusion: policy cannot replace the individual public charge assessment required by the INA. In Sayani , the judge expressly ordered the State Department not to apply the pause to the plaintiffs' immigrant visa applications.
In summary: the general 75-country immigrant visa pause is no longer in effect. However, public charge remains a ground of inadmissibility, and the analysis again centers on the individual circumstances of each applicant.
For applicants going through employment-based consular processing, including EB-2 NIW applicants, it remains important to follow the Department of State’s public charge policies and any individual assessment made by the consular officer.
Resources and documents
Reference document
Here is the document I used as a reference to prepare this article. There you can review the new public charge guidelines, the categories that are subject to or exempt from the requirement, the factors USCIS will evaluate, and information about public charge bonds.
You can download the full document here:
Official sources
USCIS — New Guidance on Public Charge Determinations (August 18, 2026) https://www.uscis.gov/newsroom/alerts/uscis-issues-guidance-on-making-public-charge-inadmissibility-determination
USCIS — Official Policy Alert in PDF, August 18, 2026 https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20260818-PublicChargeFinalRule.pdf
USCIS Policy Manual — Chapter 3: Who Is Subject to the Public Charge Ground https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-3
USCIS Policy Manual — Chapter 5: Factors Considered in the Public Charge Assessment https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-5
This content is for educational and informational purposes and does not constitute legal advice.
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