U.S. Immigration and Customs Enforcement published a notice of proposed rulemaking on October 8, 2026 that would charge $70,000 for an F-1 student's first Optional Practical Training recommendation and $30,000 for every later one, including a STEM OPT extension. Optional Practical Training Fees, 91 FR 64566 (Oct. 8, 2026), DHS Docket No. ICEB-2026-0100, RIN 1653-AB01. The fee would be paid by the SEVP certified school, not by the student and not by you, and no designated school official could enter an OPT recommendation in SEVIS until it was paid. Comments close November 9, 2026.
Why this reaches your hiring plan and not just a university budget
Optional Practical Training is how you hire a new graduate in the spring and put them to work in the summer, before the cap-subject H-1B calendar can do anything for you. Cap-subject H-1B employment cannot begin before October 1, the first day of the federal fiscal year, and only for a registration that was selected. OPT is the bridge across that gap, and for STEM graduates the bridge runs up to three years.
The proposal prices that bridge at $100,000 per person. A student who takes twelve months of post-completion OPT and then a twenty four month STEM extension generates two recommendations: $70,000 for the first and $30,000 for the second. Pre-completion OPT counts as the first recommendation, so a company whose F-1 pipeline starts with a summer internship spends the $70,000 on the intern and the $30,000 on the graduate.
The decision is not yours to make. Under the proposal, payment is a condition of the SEVIS entry, and USCIS "would not grant employment authorization to any student prior to payment of the applicable OPT fee." That places a third party you have no contract with, the school, between your offer letter and your start date. You cannot indemnify your way past a SEVIS gate, and a side agreement to reimburse a school does not oblige it to recommend anyone.
What actually triggers the fee, and who is outside it
Two dates govern.
The first is the effective date. This is a proposal, not law. If a final rule issues, it would take effect sixty days after its own publication, and the fees would attach to recommendations dated on or after that date. Nothing is payable now.
The second is the recommendation date. The preamble states that the fees apply to requests submitted on or after the effective date, and that students already engaged in approved OPT, already approved, or already recommended before that date would not owe the fee. That is the whole of your planning window: every F-1 whose recommendation is already in SEVIS sits outside this rule permanently, and so does every recommendation entered between now and whatever effective date a final rule sets.
Refunds are narrow. A school may seek a refund of the initial fee if the student does not receive the employment authorization document the payment was made for, under proposed 8 CFR 214.13(i)(1). A school that pays $70,000 for a student who receives a card and then declines your offer has bought nothing and gets nothing back. Expect that risk to be priced into whatever a school is willing to do.
The number that will decide this is not $70,000
It is the number of schools that decline to recommend at all.
The rule permits a school to pass the cost to students or employers but does not require it, and it does not require any school to recommend OPT in the first place. DHS reports roughly 6,186 SEVP certified institutions as of June 2026 and estimates that 56 percent of regulated institutions are small entities. For a small college, a single $70,000 payment is a line item that has to come from somewhere before a student can take a job. The rational response for many of them is to stop recommending, or to recommend only where a student or an employer has already wired the money.
Read that against DHS's own population figures. In 2024, 194,554 F-1 students in pre-completion and post-completion OPT reported working for an employer, up from 160,627 in 2023, and 165,524 were in STEM OPT. Only about 20 percent of the roughly 1.4 million F-1 students in higher education participated in OPT at all. Whatever share of that population loses access, it comes out of entry-level technical hiring first, because that is where the population sits.
The rationale, and the gap a comment can use
DHS states that it set the initial amount at a figure "comparable to the fee for H-1B visas," in order to deter fraud and to reduce the use of OPT to avoid H-1B fees. Two features of the proposal are worth a comment.
First, the benchmark is not currently operative. The $100,000 H-1B fee was vacated by the U.S. District Court for the District of Massachusetts in State of California v. Mullin, No. 1:25-cv-13829, by order of June 8, 2026; after a temporary stay the First Circuit declined on July 24, 2026 to disturb the vacatur, and the fee is not being collected while the government's appeal proceeds. A fee calibrated to a policy under vacatur invites the question of what the calibration is measuring.
Second, the money does not go to fraud detection. The preamble states that the fees would be deposited in the Treasury as a miscellaneous receipt under 31 U.S.C. 3302, and that "the statute does not provide legal authority for ICE to retain the funds collected." The authority claimed is the time and conditions power at INA 214(a)(1), 8 U.S.C. 1184(a)(1), together with INA 103(a) and INA 274A(h)(3), rather than user fee authority tied to the cost of providing a service. So the amount is not a cost recovery figure and the agency has said as much.
OMB designated the rule economically significant under section 3(f)(1) of Executive Order 12866. An agency must respond to significant comments supported by data, and a failure to consider an important aspect of the problem is the classic defect under Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29 (1983). Comments that supply your own conversion numbers are worth more than comments that supply sentiment.
What to do
- Inventory every F-1 you employ on OPT or STEM OPT now, with the date the designated school official entered the recommendation and the validity dates on the employment authorization document. Anyone already recommended is outside the fee as proposed.
- For any 2027 start you are counting on, write to the school now and ask two questions: will it continue to recommend OPT if this rule finalizes, and will it pass the fee through. Ask the school, in writing, and keep the answer.
- Where a candidate is already eligible for a recommendation, ask that it be entered before any final rule takes effect. The grandfathering runs off the recommendation date, and the earliest possible effective date is sixty days after a final rule publishes.
- File a comment by November 9, 2026 through regulations.gov under Docket No. ICEB-2026-0100. Comments sent by email or letter are not treated as comments and receive no response. Use your own figures: OPT hires per year, offer acceptance and H-1B conversion rates, and the cost of a role you cannot fill.
- Rebuild the 2027 entry-level plan on cap-subject timing rather than on OPT, and identify which requisitions can tolerate an October 1 start.
- Do not survey your workforce by immigration category to find exposure. Reverification and planning run off dates already in your records, and category questioning creates both a discoverable record and exposure under 8 U.S.C. 1324b.
Sources
- Optional Practical Training Fees, 91 FR 64566 (Oct. 8, 2026), DHS Docket No. ICEB-2026-0100, RIN 1653-AB01, notice of proposed rulemaking, comments due November 9, 2026
- Federal Register text as published, FR-2026-10-08, document 2026-20660
- Regulations.gov docket ICEB-2026-0100-0001
- Proposed 8 CFR 214.2(f)(11) and 8 CFR 214.13(i), as set out in the notice
- INA 214(a)(1), 8 U.S.C. 1184(a)(1); INA 103(a)(1) and (3), 8 U.S.C. 1103(a)(1), (3); INA 274A(h)(1) and (3), 8 U.S.C. 1324a(h)(1), (3); 31 U.S.C. 3302
- State of California v. Mullin, No. 1:25-cv-13829 (D. Mass.), order of June 8, 2026 vacating the $100,000 H-1B fee policy; First Circuit declined to stay that order on July 24, 2026
- Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29 (1983)
Accurate as of October 21, 2026.
This article is provided for general informational purposes only and does not constitute legal advice, nor does it create an attorney-client relationship. Immigration law and agency policy change frequently; the analysis above reflects our understanding as of the date noted. Readers should consult counsel regarding their specific circumstances.
Kloss Martino, the firm's business advisory collaborator, is a separate business advisory firm and not a law firm.
Founder and Managing Attorney of Samper Law, Lidice leads the firm's uncompromising litigation standards with relentless advocacy and strategic precision honed across federal and state courts.
Kloss Martino is a separate business advisory firm, not a law firm. Its engagements and fees are independent of Samper Law's, and legal advice comes only from Samper Law attorneys.
