On October 8, 2026, DHS (through ICE/SEVP) is publishing a proposed rule that would require schools to pay $70,000 the first time they recommend an F-1 student for any Optional Practical Training (OPT), and $30,000 for every later OPT recommendation for that student. A student who completes initial post-completion OPT and then a STEM OPT extension would therefore trigger $100,000 in fees.
The fee is paid by the school, not the employer or the student, but DHS expects the cost to be passed along. A DSO could not enter an OPT recommendation in SEVIS until the fee is paid. USCIS would be barred from granting OPT employment authorization where the fee has not been paid.
- Comments due: 30 days after Federal Register publication
- Effective date if finalized: 60 days after publication of the final rule
- Impact: Litigation expected to prevent implementation if the rule is finalized
What DHS Proposed
The proposal creates two fees, both owed by the SEVP-certified school before the DSO recommends the student for OPT.
- Initial fee, $70,000 (proposed 8 CFR 214.13(i)(1)). One-time, per student, triggered by the first DSO recommendation for any type of OPT, pre-completion or post-completion.
- Subsequent fee, $30,000 (214.13(i)(2)). Owed for each later recommendation, including further pre-completion or post-completion OPT and the 24-month STEM OPT extension. The text conditions it on the student having “previously participated in OPT and paid the initial OPT fee.”
- Not employer-specific. The fee attaches to the school’s decision to recommend OPT, not to a particular employer or a change of employer.
- Payment gate (214.2(f)(11)(i)-(iii)). The DSO must confirm payment and record it in SEVIS before issuing the recommendation. The new Form I-20 must show payment information. USCIS “may not grant employment authorization” where the recommendation preceded payment or the fee went unpaid.
- Refunds. Discretionary and case by case, available only if no OPT EAD has been issued, and only after the DSO withdraws the recommendation in SEVIS. Once an EAD issues, the fee is not refundable “under any circumstances.” SEVP’s refund decisions are final and not appealable.
- No exemptions. There is no carve-out for small schools, public institutions, or any student category, and no distinction based on how the student obtained F-1 status or an extension of stay. Curricular Practical Training (CPT) is outside the rule.
- Who pays. The school. DHS places no limit on how schools fund the fee and expressly acknowledges they may pass the cost to the student, to all students, or to employers.
- Where the money goes. Treasury, as miscellaneous receipts. ICE and SEVP cannot retain the fees.
Effective Date and Transition
If finalized, the rule takes effect 60 days after the final rule is published. The $70,000 fee would apply to any OPT recommendation dated on or after that effective date (proposed 214.13(i)(3)).
DHS says it would not charge the fee for a student who, before the effective date, is engaged in approved OPT, has been approved for OPT, or has received a DSO recommendation. DHS adds, however, that a subsequent OPT request made on or after the effective date would be subject to the fee provisions.
Open question on the $30,000 trigger. The regulatory text imposes the $30,000 fee on students who “previously participated in OPT and paid the initial OPT fee.” A student whose first OPT predates the effective date never had the $70,000 paid. The proposal does not say whether that student’s later STEM OPT recommendation triggers $70,000, $30,000, or no fee. This is a clear candidate for clarification in the comments.
Because the fee turns on the date of the DSO recommendation, the timing of recommendations before the effective date will matter.
DHS’s Stated Rationale
DHS frames the fee as a program-integrity and U.S.-worker-protection measure, and says that without it the agency “may shut down the program entirely.”
- Fraud. DHS cites an HSI investigation that identified more than 10,000 F-1 students working for highly suspect OPT employers, including shell companies, residential addresses listed as worksites, and “pay-to-stay” arrangements. It also points to OPT growth, from 160,627 participants in 2023 to 194,554 in 2024, against limited SEVP field resources.
- H-1B circumvention and U.S. workers. DHS ties the rule to concerns that OPT is used to bypass H-1B caps, fees, and prevailing-wage requirements. It sized the $70,000 initial fee to be comparable to the H-1B fee in Proclamation 10973.
- Why a fee. DHS considered extending STEM OPT safeguards (Form I-983 training plans, site visits, reporting) to all OPT and rejected that as slower, resource-intensive, and reactive. It calls the fee a “first step” and reserves the right to add regulatory requirements later.
- Mechanism. DHS expects the fee to push schools to scrutinize OPT recommendations more closely and shrink the participant pool, and it treats the fee as a deterrent whether or not funds are appropriated for enforcement.
- Small schools. DHS considered and rejected an exemption for small institutions, noting that 56 percent of regulated SEVP-certified schools are small entities.
Legal Authority and Likely Points of Challenge
DHS grounds the rule in its authority over the “time and conditions” of nonimmigrant admission under INA 214(a)(1), together with INA 103(a), Homeland Security Act section 102, IIRIRA section 641, and INA 274A(h)(3).
Issues that commenters and litigants are likely to press:
- No express fee authority. The proposal cites no statute that authorizes DHS to charge a fee for OPT, and DHS concedes ICE cannot retain the money because the statute does not authorize it to.
- Fee as condition of admission. Whether a $70,000 charge, which DHS itself calls “not nominal,” can be characterized as a condition of status rather than a revenue measure.
- Proportionality. DHS benchmarks the fee to one or two years of tuition and to the H-1B fee, rather than to any cost of administering OPT.
- Reliance interests. DHS dismisses reliance by students, schools, and employers as “speculative” and outweighed. That analysis will be tested under State Farm.
What This Means for Employers and Global Mobility Teams
Nothing changes today. This is a proposal, and the fee would not apply until 60 days after a final rule is published. Even then, a final rule is sure to be subject to litigation that will further pause implementation.
The fee is charged to schools, but employers would feel it if implemented.
- DHS does not charge employers directly. It does expect schools to pass the cost to students, to all students, or to employers.
- Expect schools to ask employers to contribute to or reimburse the fee, and some schools to limit or decline OPT recommendations altogether.
- The effect may be uneven. Smaller and less well-resourced schools, and programs whose graduates are not STEM-eligible, are the most likely to restrict recommendations, because DHS’s own low-participation scenario assumes schools will not pay $70,000 for a single year of OPT.
Recruiting and workforce planning
- Flag offers and start dates that depend on OPT authorization that has not yet been recommended. A DSO recommendation dated on or after the effective date would carry the fee.
- Revisit offer-letter and campus-recruiting language that assumes OPT work authorization will be available.
- Employees already on OPT, or already holding a DSO recommendation before the effective date, are not charged for that OPT. The treatment of their later STEM OPT recommendation is unclear (see above).
H-1B and long-term status planning
- OPT and STEM OPT give many employers up to three years to try for an H-1B cap selection. Fewer or shorter OPT periods mean fewer lottery opportunities for the same candidate.
Engage in the rulemaking
- Employers, industry groups, and universities can submit comments through regulations.gov. DHS says comments are most helpful when they cite the specific section, explain the reason for a change, and include supporting data. Employer data on OPT hiring volumes, conversion to H-1B, and the cost to the business would be especially useful to DHS.
Our Perspective
The administration is taking a rinse and repeat strategy toward creating unlawful fees. Step 1: scare the public, Step 2: propose a likely unlawful fee, Step 3: implement the fee, Step 4: litigate the unlawful fee. The impact is on foreign nationals who are choosing where to go to school. The policy doesn’t have to be lawful or implemented to scare prospective students away from the US. This, like the $100,000 H-1B fee, the F-1 duration of status rule, and the overall immigration climate, will scare foreign nationals away from choosing US schools, impacting the overall talent pipeline.
US employers should evaluate their global footprints and where they will continue to look for talent over the next two to four years, as talent pools from US universities may shrink in both size and quality.
Comment Deadline and Next Steps
Comments are due 30 days after Federal Register publication. With publication scheduled for October 8, 2026, that is November 7, 2026, a Saturday.
We are monitoring the rulemaking and will update clients when a final rule is published. If you would like to discuss how the proposal affects your OPT and STEM OPT population, or to coordinate a comment, please contact your Meltzer Hellrung LLC attorney.
