The $100K OPT fee is a proposed rule, not law. On October 8, 2026, DHS published a Notice of Proposed Rulemaking that would charge a school $70,000 for an initial OPT recommendation and $30,000 for each subsequent recommendation, including the 24-month STEM extension. These STEM OPT fees would not be owed right away. They would apply only to recommendations entered after a final rule takes effect, and the proposal itself is expected to face litigation.
For an F-1 student weighing a first job, a startup, or an H-1B path, the proposal changes the economics of post-graduation decisions. Founder Law understands how overwhelming these headlines can be. The firm’s priority is to ensure that no one makes a rushed decision out of fear. Take a deep breath: the good news is that nothing has changed yet, and a graduate’s future remains fully in their control. While the fee is legally billed directly to the university—not the student or employer—DHS does allow schools to pass these costs along. How this will play out depends on individual university policies.
Key Takeaways
- The proposed OPT fee is $70,000 for a school’s first OPT recommendation and $30,000 for the 24-month STEM extension. A STEM graduate using all three years could cost the school $100,000.
- The SEVP-certified school pays the fee before the DSO enters the recommendation in SEVIS. USCIS could not issue the EAD without proof of payment.
- The rule is a proposal published October 8, 2026 (91 Fed. Reg. 64,566). It is not in effect and would apply only prospectively if finalized.
- If both the OPT and H-1B proposals were finalized, the STEM OPT-to-H-1B path would cost approximately $203,265 in government fees.
- Legal challenges are likely under the Administrative Procedure Act. Federal courts have twice blocked collection of the H-1B fee in 2026, and appeals are pending.
Explaining The Proposed $100K OPT Fee
The $100K OPT fee is a two-part charge on universities that DHS proposed in the Federal Register on October 8, 2026. A school would pay $70,000 when it first recommends an F-1 student for Optional Practical Training and $30,000 for any subsequent recommendation. The 24-month STEM OPT extension counts as a subsequent recommendation. In total, the $100,000 covers a STEM graduate for all three years.
The rule is at the proposal stage. Public comments are open until November 9, 2026. The rule cannot take effect until DHS reviews comments and publishes a final rule with an effective date.
DHS frames the fee as an anti-fraud and worker-protection measure. The proposed rule cites an investigation that identified more than 10,000 OPT participants working for employers suspected of abusing the visa system. The Institute for Progress calculates this is roughly 3% of participants.
The agency also states that it chose the amount to align with H-1B fees, so that OPT is not used to avoid them. The Institute for Progress notes two figures from DHS’s own economic analysis:
- It assumes STEM OPT participation will not fall at all.
- It projects annual transfers from schools to the Treasury of $8.7 billion to $16.9 billion.
Who Pays And Who Is Affected: OPT, STEM OPT And H-1B Compared
The school is the legally obligated payer, but DHS states that schools could pass the cost to the individual student, to all students, or to the employer. In practice, the cost will land wherever each university’s policy puts it, and no university has announced a policy yet. The table below sets the proposed OPT fees beside the H-1B fees that DHS has pursued since September 2025.
| Fee | Amount | Who pays | Status (as of October 19, 2026) | Work period covered |
| Initial OPT recommendation | $70,000 | SEVP-certified school | Proposed (NPRM Oct 8, 2026) | Up to 12 months |
| Subsequent OPT recommendation (incl. STEM extension) | $30,000 | SEVP-certified school | Proposed (NPRM Oct 8, 2026) | Up to 24 additional months |
| H-1B fee by presidential proclamation | $100,000 | Petitioning employer | Collection blocked by federal courts (June 8 and Sept 30, 2026); proclamations extended to Sept 2027; appeals pending | Initial petition only; status renewable to 6 years |
| Proposed USCIS H-1B petition fee | $103,265 | Petitioning employer | Proposed; comment period closed Sept 2026 | Initial cap-subject petition only |
| Current Form I-765 OPT filing fee | $470 online / $520 paper | Student | In effect | Per application |
Added together, the proposed fees total:
- $173,265 for 12-month OPT followed by an H-1B.
- Approximately $203,265 for the STEM OPT route.
The Institute for Progress’s analysis of SEVIS data shows that 82% of international STEM graduates who stay to work get OPT before an H-1B. DHS suggests students could simply pursue the H-1B directly, but the calendar doesn’t allow it. The lottery runs in March and employment starts October 1, which leaves a May graduate with no work authorization in between.
How The Fee Might Be Collected
What Is A DSO?
DSO stands for Designated School Official. A DSO is an employee at a school or university whom the U.S. government authorizes to manage international student records and help F-1 students with immigration matters. Under the proposed rule, the fee is triggered when the DSO enters a recommendation, not when the student files an application.
A school would have to pay before its DSO could enter the OPT recommendation in SEVIS. USCIS would be barred from approving the Form I-765 if payment had not been made. A student who used pre-completion OPT would trigger the $70,000 fee at that point, and the $30,000 fee for post-completion OPT afterward. Under the proposal as written, a graduate whose recommendation is entered before a final rule’s effective date would not trigger the fee.
Why The Fee Is Legally Contested
The central legal question is whether DHS can attach a six-figure financial condition to participation. While the legal terminology can seem dense, the takeaway is simple: this rule is expected to face significant legal pushback. Courts have already stepped in this year when the administration’s H-1B fee was used as a barrier rather than a fair administrative cost.
DHS relies on INA Section 214(a), which lets the Secretary set the time and conditions of nonimmigrant admission. Challengers are likely to argue that a charge of this size redesigns access to the program rather than administering it.
As The Law Reporters has outlined, three features of the proposal invite scrutiny:
- A fee or a policy tool? Receipts would go to the general Treasury rather than to ICE’s program costs. The amount is pegged to H-1B fees rather than to processing costs. Both facts weaken the argument that this is a cost-recovery fee.
- Cross-program purpose. DHS states the fee is designed partly to stop OPT from being used to avoid H-1B restrictions. Using F-1 authority to pursue an H-1B policy goal is an untested legal theory.
- Arbitrary-and-capricious review. DHS concedes it cannot predict how far participation will fall, yet it assumes zero decline among STEM graduates. In plain terms, the Administrative Procedure Act requires an agency to show its reasoning and to consider less burdensome alternatives. IFP argues DHS did not.
The proposal is likely to face the same legal problems as the administration’s $100,000 H-1B fee:
- In June 2026, a federal court in Massachusetts struck down the H-1B fee as an unauthorized tax.
- In September, a California court vacated the policies implementing the H-1B proclamations entirely.
The OPT fee is similarly designed as a large financial barrier rather than a way to recover costs. Challengers are therefore expected to cite these rulings to argue that the OPT rule is an unlawful overreach by the agency.
The Founder Law Exposure Map: Three Questions Every OPT Founder Should Answer Now
Founder Law reads the proposal differently for a founder than for an F-1 graduate joining an established employer. In the firm’s view, a founder or early startup hire on OPT faces more risk, because the anti-fraud reasoning behind the fee targets exactly the kind of employer a startup is. The Exposure Map sorts that risk into three questions.
| Question | Why it matters under the proposal | Lower-exposure answer | Higher-exposure answer |
| 1. Timing: when will the DSO enter the recommendation? | The fee attaches at the SEVIS recommendation, after a final rule’s effective date | Recommendation entered before any effective date | Graduation or STEM extension window falls after a final rule |
| 2. Payer: what is the school’s pass-through policy? | DHS allows schools to shift the cost to students or employers | School absorbs or caps the fee | School passes the full amount to the student or employer |
| 3. Employer profile: does the startup match DHS’s fraud markers? | DHS cites recently formed companies and home-based worksites. IFP’s example safeguards would bar three things: sole-proprietor self-employment, employers less than one year old, and employers based at a private residence. Recognized accelerators and incubators would be exempt | Incorporated entity, EIN, commercial address, E-Verify enrolled | Sole proprietorship, company under 12 months old, home office |
Even if the $100K fee never takes effect, DHS’s fraud concern will not go away. The less burdensome alternatives that IFP has put in front of DHS would restrict founder-employed OPT directly. A startup founder on OPT should therefore plan for possible limits on eligibility.
Founder Law’s guidance on using Form I-765 OPT for founder work authorization covers the company and supervision structures that let a founder keep building on the STEM extension. The extension requires two things (8 CFR 214.2(f)(10)(ii)(C)):
- A genuine employer-employee relationship.
- A Form I-983 signed by a supervisor who is not the founder.
Next Steps For F-1 Students Graduating Soon & Startup Employers
The most useful step right now for candidates is to file for OPT or the STEM extension on the earliest date they are eligible. The fee attaches at the recommendation and the proposal only applies going forward, so earlier filing avoids it under the rule as written.
Beyond timing, three actions reduce risk without betting on a rule that may never take effect. None of them require paying a fee that does not yet exist. They are about keeping options open.
- Confirm Filing Windows.
- Post-completion OPT can be filed up to 90 days before and 60 days after the program end date. USCIS must receive the application within 30 days of the DSO’s SEVIS recommendation.
- The STEM extension can be filed up to 90 days before the current EAD expires and within 60 days of the STEM recommendation.
- Request the DSO’s Pass-Through Policy In Writing. Universities will have to decide whether to absorb, cap, or pass on the fee. A written answer lets graduates plan before a policy is announced.
- Build the H-1B Track In Parallel. A sponsoring employer can register a graduate in the next H-1B lottery while the graduate is still on OPT. Vetting now runs alongside the petition, so Founder Law’s note on H-1B social media screening preparation for 2026 is worth reviewing early.
Startup employers hiring OPT graduates, especially those planning to sponsor them for an H-1B, should do three things:
- Enroll in E-Verify.
- Operate from a commercial address.
- Keep the Form I-983 training plan detailed and current.
Founders who are themselves in F-1 status can review Founder Law’s overview of immigration for startup founders for routes that do not depend on OPT.
Planning Your Work Authorization With A STEM OPT Lawyer
Founder Law is a boutique immigration lawyer for startups. Most of its clients are founders and early hires who need work authorization that survives a rule change. The proposal is not final, the amount may change, and courts may intervene. The filing windows for OPT and STEM OPT, however, do not wait for that process to finish.
If a graduation, STEM extension, or first startup hire falls within the next 12 months, the practical question is how to order the recommendations, filings, and company structure, so that founders are not caught between a filing window and a rule change. Graduates are encouraged to contact Founder Law to review their timeline against the proposed rule. Uncertainty is hard to plan around, but a clear timeline makes it manageable.
Frequently Asked Questions
Is the $100K OPT fee in effect now?
No, the $100K OPT fee is not in effect. DHS published it as a Notice of Proposed Rulemaking on October 8, 2026, which opens a public comment period. The agency must review comments and publish a final rule with an effective date before any fee can be charged. DHS has also said the fee would apply only to OPT recommendations entered after that effective date, so current OPT and STEM OPT holders would not be charged retroactively.
Who pays the OPT fee, the student or the school?
The school pays the OPT fee under the proposal. The SEVP-certified institution would pay $70,000 before its DSO enters an initial OPT recommendation in SEVIS, and $30,000 for each subsequent recommendation. However, DHS expressly states that schools may pass the cost on to the individual student, to all students through tuition, or to the employer. Whether a given graduate ends up bearing the cost depends on university policy, and no school has announced one yet.
How much are STEM OPT fees under the new proposal?
The STEM OPT fee would be $30,000 under the proposal, charged to the school as a subsequent OPT recommendation. Combined with the $70,000 initial OPT fee, a STEM graduate using the full 36 months of work authorization would cost the school $100,000. The student’s own Form I-765 filing fee to USCIS would stay separate and would be paid in addition to the school’s charge. That fee is currently $470 online or $520 on paper.
Does the OPT fee replace the $100K H-1B fee?
No, the OPT fee does not replace the H-1B fee; the two would add together. DHS has pursued a $100,000 H-1B fee in two ways:
- Through presidential proclamations in September 2025 and September 2026, whose implementing policies federal courts have vacated.
- Through a proposed $103,265 USCIS petition fee.
If both the OPT and H-1B fees took effect, the combined government cost for the STEM OPT-to-H-1B route could reach approximately $203,265 per graduate.
Will the $100K OPT fee be challenged in court?
Litigation is likely if the rule is finalized. Under the Administrative Procedure Act, challengers would likely argue that DHS:
- Exceeded its authority under INA Section 214(a).
- Acted arbitrarily by assuming no decline in STEM participation.
- Failed to consider less burdensome alternatives.
Challengers could also invoke the major-questions doctrine, the principle that an agency needs clear authorization from Congress before making decisions of vast economic or political significance.
Can students still apply for STEM OPT before the rule takes effect?
Yes, candidates can and should apply as soon as they are eligible:
- The STEM extension can be filed up to 90 days before their current EAD expires.
- Post-completion OPT can be filed up to 90 days before and 60 days after their program end date.
The proposed fee attaches at the recommendation step and applies only going forward. Under the proposal as written, a recommendation entered before any final-rule effective date would not trigger the charge.
Can a startup founder on OPT work for their own company?
On 12-month post-completion OPT, yes, provided the work is directly related to the founder’s degree.
On the 24-month STEM extension, self-employment is not available in practice. The company must be an E-Verify employer with a Form I-983 training plan signed by an independent supervisor who can evaluate the founder, so the founder cannot be their own employer.
The proposed rule does not change this. However, DHS’s fraud reasoning cites newly formed companies and home-based worksites, so founders should maintain a formal company, an EIN, and a commercial address.
What should graduates do if their university passes the OPT fee to them?
First, graduates should request the policy in writing and confirm whether it applies to the initial recommendation, the STEM extension, or both. They can then compare the cost against alternatives:
- An earlier filing date.
- A sponsoring employer willing to cover the fee.
- A different status, such as an H-1B.
A STEM OPT lawyer can review whether a candidate’s timeline allows a recommendation before any effective date, and whether another route costs less.
Last reviewed: October 19, 2026. Regulatory status in this article is subject to ongoing rulemaking and litigation.
This article provides general information reflecting the law as of October 2026. It is not legal advice and does not create an attorney-client relationship.