USCIS's new public charge rule took effect on September 18, 2026. It rescinds the 2022 regulation and broadens what the government can evaluate before granting a green card. If you are pursuing permanent residence through an EB-1A or an EB-2 NIW, the question is simple: does this change your chances? The answer is that the impact is far more limited than the headlines suggest.
Who Does the New Public Charge Rule Apply To?
The rule applies only to people applying for adjustment of status (Form I-485) from inside the United States. For EB-1 and EB-2 cases, this means the public charge analysis is not part of the I-140 petition review. It comes into play only later, once the applicant has an approved petition (or one filed concurrently), is physically in the United States, and applies for permanent residence without leaving the country.
Key Changes Introduced by the Rule
Officers still weigh the five statutory factors (age, health, family status, financial circumstances, and education and skills). However, they may now consider any means-tested public benefit received on or after September 18, 2026, such as food stamps, housing assistance, or college financial aid. For benefits received before that date, only cash assistance and long-term institutionalization count. Decisions are made case by case. If public charge is the only obstacle, USCIS may invite the applicant to post a bond (Form I-945) so the adjustment can be approved.
How the Public Charge Rule Affects EB-1 and EB-2
Stage One: The I-140 Petition Is Unchanged
The current administration has not changed the substantive criteria for approving an EB-1A (extraordinary ability) or EB-2 NIW (national interest waiver) petition. Officers still evaluate the I-140 based on three things: the evidence submitted, whether the petition meets the legal requirements of its category, and their own discretion. The public charge rule plays no role in that analysis.
This point deserves attention. Both the "national interest" required under Matter of Dhanasar and the "sustained acclaim" required for EB-1A are highly subjective concepts. The law does not define them with mathematical precision. In practice, the petition gives these concepts their meaning through its strategic preparation, its choice of evidence, and the strength of its arguments. A well-built petition does more than meet the requirements; it explains them and makes them evident.
Stage Two: Adjustment of Status
Only at this stage does the public charge rule become relevant. One practical detail matters here. Most EB-1A and EB-2 NIW self-petitions do not require Form I-864 (Affidavit of Support). That form applies to employment-based cases only when a relative is the petitioning employer or holds a significant ownership interest in the company. As a result, the analysis will rest mainly on the applicant's own profile: education, income, assets, health, and history.
What About Consular Processing?
The USCIS guidance does not govern consular processing, which falls under the Department of State. That does not mean applicants who process their immigrant visa abroad escape public charge review. The law requires this analysis for every immigrant visa, and the Department of State applies its own standards. In November 2025, consular officers received expanded public charge guidance that broadened the health, financial, and personal factors they consider. Anyone planning consular processing should evaluate their case under those standards and any restrictions currently in place for their nationality.
The Nature of EB-1 and EB-2 Works in Your Favor
People often overlook one point. By design, the EB-1A and EB-2 NIW categories already address many of the factors the public charge rule examines. To qualify, applicants must show advanced education or exceptional ability and verifiable achievements in their field. NIW applicants must also present a concrete, viable plan for their future work in the United States.
In other words, the same record that proves someone is well positioned to advance their proposed endeavor also helps demonstrate self-sufficiency. The stronger the education, documented achievements, and plans, the less likely an officer is to question the applicant's ability to support themselves at the adjustment stage. The analysis doesn't disappear, but these applicants start from a considerably stronger position than applicants in many other categories.
Even so, applicants should review in advance any public benefits they or their household have used since September 18, 2026. They should also prepare solid financial evidence for the adjustment stage.
Considering an EB-1A or EB-2 NIW?
Shifts in immigration policy create uncertainty, and they call for clarity. At CALAM Immigration Law, we focus exclusively on employment-based self-petitions (EB-2 NIW and EB-1A), and we have guided hundreds of people through this journey. Contact us for a case evaluation to learn how your profile fits and which strategy best suits your petition and your future adjustment of status or consular process.
