What’s Happening?
On October 8, 2026 the Department of Homeland Security (DHS) published a proposed rule that would impose significant new fees on Optional Practical Training (OPT) for F-1 students:
$70,000 for an initial OPT recommendation
$30,000 for subsequent OPT recommendations, including STEM OPT extensions.
As an initial matter it is important to clarify that these fees are not currently in effect, and nothing changes for F-1 students or employers currently on or applying for OPT.
Before the rule can take effect, DHS must complete the federal rulemaking process and issue a final rule before the fees could take effect. Under the proposal, any final rule would become effective 60 days after publication, with the new fees applying to DSO recommendations dated on or after the effective date.
If finalized substantially as proposed, however, the rule could dramatically alter the economics of OPT for students, universities, and U.S. employers that rely on international graduates.
How Would the Proposed Fees Work?
Under the proposed rule, an SEVP-certified school would be required to pay $70,000 before making an F-1 student’s first OPT recommendation, regardless of whether that recommendation is for pre-completion or post-completion OPT.
After the initial fee has been paid, the proposal calls for a $30,000 fee for each subsequent OPT recommendation, which could include a second period of pre-completion OPT, post-completion OPT following pre-completion OPT, or a 24-month STEM OPT extension.
The fee would be tied to the student and OPT recommendation and not to a particular employer. Accordingly, an OPT employee’s change of employer would not itself trigger another fee; a new DSO recommendation for another period of OPT would.
The costs could accumulate quickly. For example, DHS explains that a student who first uses pre-completion OPT and later seeks post-completion OPT could generate $100,000 in fees ($70,000 for the first recommendation and $30,000 for the subsequent recommendation). DHS is also specifically seeking comments on an alternative approach that would impose another $70,000 initial fee when a student first seeks OPT at a higher educational level.
Who Must Pay the Fees?
While the proposed rule requires the SEVP-certified school to make the payment before issuing a new I-20 recommending OPT, it expressly permits them to pass the costs on to students, the broader student population, or employers. Employers should therefore anticipate the possibility that universities could seek significant financial contributions from employers in connection with future OPT recommendations.
What Happens to Students Already on OPT?
The proposal is prospective, making the date of the DSO recommendation particularly important.
No new fee would be owed for an OPT period that is already approved or for which the DSO recommendation was issued before the effective date of a final rule. Any new OPT recommendation made on or after the effective date, however, would become subject to the new fee provisions.
That could make timing particularly important for employees whose post-completion OPT or STEM OPT recommendation windows overlap with the effective date of a future final rule.
The proposal also leaves an important question unanswered for students who are already on post-completion OPT and later seek a STEM OPT extension. The proposed $30,000 “subsequent” fee is drafted to apply to a student who has previously paid the initial $70,000 fee. A student whose existing post-completion OPT was recommended before the new rule takes effect would never have paid that initial fee.
Read literally, therefore, the student’s later STEM OPT extension could potentially trigger the $70,000 initial fee rather than the $30,000 subsequent fee. The proposed rule does not resolve this issue. Until DHS provides clarification, employers and affected F-1 students should be prepared for the possibility of the higher amount.
Why Is DHS Proposing the Change?
DHS states that the proposal is intended to combat fraud and abuse, strengthen oversight of the OPT program, and protect U.S. workers. Among other things, DHS cites investigations involving allegedly fraudulent employers, empty or residential worksites, shell-company employment arrangements, and “phantom employees.”
The proposal fee, however, is not limited to funding additional government oversight to combat concerns about fraud in the program. DHS also anticipates that the fees will encourage schools to be more selective about the students they recommend, thus reducing the overall use of OPT.
DHS states that the $70,000 initial fee was selected in part to make OPT costs comparable to the Administration’s separate H-1B fee policy so that OPT could not be used as an alternative to increased H-1B costs. DHS also describes the fee as a means of giving schools a greater financial stake in determining which students they recommend for OPT.
Significant Legal Challenges Are Likely
If DHS finalizes the rule substantially as proposed, significant litigation is likely challenging the rule on the following grounds:
Exceeding Statutory Authority: A central issue will be whether DHS has statutory authority to impose payments of this magnitude as a condition of OPT participation. The proposed payments bear many of the same hallmarks as the $100,000 H-1B fee that was enjoined as an unlawful tax: they are not calibrated to the government’s costs of administering the program, and the revenue would be deposited into the general U.S. Treasury rather than retained by ICE to administer OPT. These features suggest that the payments function less as administrative fees designed to recover program costs and more as a revenue-raising measure intended to influence behavior. Because the power to impose taxes rests with Congress, DHS’s authority to impose such payments without express congressional authorization is a significant legal question.
Reliance Interests: Additional potential challenges could concern the scope of DHS’s authority under INA § 214(a), the basis for selecting the $70,000 and $30,000 amounts, the treatment of existing reliance interests, and the abbreviated 30-day comment period.
At the same time, employers should not assume that successful litigation challenging the fees would necessarily preserve the OPT program in its current form. DHS states that without the proposed fees it “may shut down the program entirely,” raising the possibility of further regulatory efforts to restrict or restructure OPT even if the proposed fee regime is ultimately blocked.
What Should Employers Do Now?
While current grants of OPT and STEM OPT are not affected by the proposed rule, employers should take proactive steps to assess potential exposure and prepare for implementation. This should include:
Review incoming F-1 OPT hires and STEM-eligible OPT employees to identify potentially impacted employees. Employers should review EAD expiration dates and STEM OPT extension eligibility and recommendation windows to identify F-1 students whose OPT or STEM OPT timelines could intersect with a future effective date.
Evaluate other immigration options for employees the company intends to retain. This includes examining H-1B sponsorship, looking at citizenship-specific options like the H-1B1, TN, and E-3, and, for multinational companies, looking at potentially diverting impacted employees to work in foreign offices with the possibility of a transfer back to the U.S. on an L-1 visa in the future.
Begin assessing the potential financial impact and budget for scenarios in which they may need to cover some or all of the fee to support critical hires or retain existing employees. As part of this exercise, companies should establish a clear policy on whether they would pay the fee if a university or student seeks to pass the cost to the employer, including the circumstances, if any, in which exceptions would be permitted. A consistent approach will help employers manage costs, set expectations with employees and university partners, and avoid making case-by-case decisions under time pressure.
Timing may also be an important planning consideration. Depending on the final rule’s effective date and transition provisions, employees approaching STEM OPT extension eligibility may have opportunities to complete relevant steps before the new requirements take effect. Employers should monitor the rulemaking process and coordinate with immigration counsel and employees to assess any available options, without assuming that completing a particular step before the effective date will necessarily avoid the fee. These preparations are particularly important for 2027 campus recruiting, new-graduate hiring, and retention planning, as universities may respond to the proposed fees differently, including by absorbing the cost, passing it to students, seeking employer funding, or changing their approach to OPT recommendations.
DHS is accepting public comments through November 9, 2026. Employers may wish to consider submitting comments addressing the proposal’s anticipated impact on recruitment, workforce planning, existing international employees, and positions that could be difficult to fill if access to OPT is significantly curtailed. Comments that outline specific, quantifiable impact on employers are most impactful.
D&S will continue to closely monitor the rulemaking process, potential litigation, and any implementation guidance and will provide additional updates as developments occur.
This alert is for general informational purposes only and does not constitute legal advice. Please consult D&S immigration counsel regarding your specific circumstances. D&S Senior Associate, Paulina Baginska, assisted with the preparation of this alert.