OPT Fee Rule: Comments Close Nov. 9 on $70,000 School Fee

The public comment period on the OPT fee rule, the Department of Homeland Security’s plan to charge schools $70,000 for a student’s first Optional Practical Training recommendation and $30,000 for each later one, closes at 11:59 p.m. Eastern time on Monday, Nov. 9. Once the window shuts, the fight moves from public pressure to the administrative record, where DHS must answer significant objections before it can finalize a rule reaching F-1 students, the colleges that recommend them for OPT and the employers that hire them.

The deadline matters because comments are the one stage of rulemaking where outsiders shape the record a court would later review, and arguments not raised now are harder to press in a lawsuit. U.S. Immigration and Customs Enforcement, which runs the Student and Exchange Visitor Program, published the proposal on Oct. 8 (91 FR 64566) and allowed 30 days for substantive comments, half the 60 days Executive Order 12866 generally recommends.

Nothing changes for students yet. The fees would apply only to OPT recommendations dated on or after a final rule takes effect, 60 days after publication. The school would pay before entering the recommendation in SEVIS, the money would go to the Treasury’s general fund, and refunds would be available only if no work permit is issued. Schools could pass the cost to students or employers, as detailed in earlier coverage of the $70,000 OPT proposal.

The scale is large. DHS figures cited in the proposal count 194,554 students in OPT in 2024 and 165,524 on the 24-month STEM extension, a combined 360,078 people based on those figures. That is more than four times the 85,000 new H-1B visas available each year under the statutory cap. DHS also says 56 percent of SEVP-certified schools are small entities, and the proposal does not exempt them.

The OPT fee rule objections DHS must answer

DHS’s case rests on program integrity. The proposal describes OPT as an open-ended work benefit loosely tied to what students studied, says it lets employers sidestep the H-1B cap and its fees, and points to ICE fraud investigations involving shell companies.

NAFSA: Association of International Educators, the main professional association for international student advisers, filed a comment letter on Nov. 3 arguing that the fees would put OPT beyond the reach of most students and schools and would substantially reduce international enrollment. NAFSA questions whether DHS has authority to impose charges with no demonstrated link to the cost of running the program, calling them closer to “deterrent taxes on lawful activity” than regulatory fees. It also says ambiguities over when and how often the fees apply could leave a school owing more than $100,000 for a single student, and it urges targeted enforcement against fraud instead. Under the Administrative Procedure Act, DHS must respond to significant comments like these, and a rule that brushes past them risks being set aside as arbitrary and capricious.

Fee or tax: where a lawsuit would aim

Authority is the likeliest legal fault line. DHS does not rely on the user-fee statutes agencies normally use to recover the cost of a service. It cites section 214(a) of the Immigration and Nationality Act, which lets the government set “the time and conditions of admission” for nonimmigrants, and treats the fee as one such condition. Because the money would not fund the program, challengers can be expected to argue that it works as a tax, which only Congress can levy. Schools, as the parties billed, would have little trouble showing standing.

Universities are already in court over DHS guidance narrowing Curricular Practical Training, and a challenge to the $100,000 H-1B fee is moving forward. Rulings on executive power in those cases are likely to shape how this one is argued.

Timing is the open variable, and DHS has set no date for a final rule. If one appears in the first half of 2027, its effective date could land near the point when schools enter post-completion OPT recommendations for spring graduates, which can be filed up to 90 days before a program ends. Students on OPT who plan to seek a STEM extension face the same question, because the trigger is the date of the school’s recommendation, not graduation.

Dates to track

Nov. 9, 11:59 p.m. ET: Comments on the rule close on Regulations.gov, docket ICEB-2026-0100.
Dec. 7: Comments on the rule’s information collection close. Other DHS work-visa comment deadlines this month are listed in this roundup of November rule deadlines.
Final rule: No date set. Fees would apply to recommendations dated 60 days or more after publication.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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