The U.S. Department of Homeland Security (DHS) announced a proposed rule on October 7th, requiring schools to pay $70,000 before recommending F-1 international students for their first Optional Practical Training (OPT) and an additional $30,000 for each subsequent OPT recommendation, including a 24-month extension for STEM (Science, Technology, Engineering, and Mathematics) majors. This news has sparked strong concerns among Chinese international students and their parents.
The DHS stated in its announcement that the new rule aims to address fraud and abuse issues identified by the Student and Exchange Visitor Program (SEVP) and encourages schools to recommend students more carefully to protect employment opportunities for American workers. The fees collected will be deposited into the U.S. Treasury.
The rule was officially published in the Federal Register on October 8th, with a public comment period extending until November 9th. If the rule is finalized, it will take effect 60 days after the publication of the final rule, and OPT recommendations made before the effective date will not be affected.
How will this rule impact international students? Is it legally sound? When interviewed by the media, immigration attorney Li Guofeng from New York VIP Law Group cautioned that the new fee targets schools as the payers, not students. Li emphasized the potential financial burden on students or employers, depending on how schools choose to handle the costs.
One critical detail often overlooked is that the $70,000 fee applies to the “first-time” OPT recommendation after the rule takes effect, regardless of the type of OPT. This means that a student utilizing OPT during their studies, applying for post-graduation OPT, and pursuing a STEM extension could potentially face combined fees totaling $130,000.
OPT has traditionally served as a crucial bridge for international students to apply their knowledge and gain work experience in the U.S. Li voiced concerns that raising the fee to this extent may prevent many eligible students from accessing these opportunities.
However, Li emphasized that the rule is still in the proposal stage and has not been implemented yet. He reassured current OPT participants and those with recommendations already in hand not to panic.
According to DHS data, around 194,000 students participated in OPT in the U.S. in 2024, with approximately 95,000 engaging in STEM OPT.
Li pointed out that for typical STEM students, progressing from graduation to a 12-month OPT, then a 24-month STEM OPT, and eventually transitioning to an H-1B visa could mean an additional $100,000 in expenses. Such a significant financial burden may pose challenges for many families and employers.
He anticipates that the impact will manifest in three main areas: schools, especially those with a high percentage of international students, will need to decide how to bear or distribute the costs and potentially tighten their selection criteria for recommendations; employers, particularly small and medium-sized enterprises and startups, may become less inclined to hire foreign graduates; and families considering U.S. education will reassess the overall cost-effectiveness.
It is widely expected that once the rule is finalized, universities, employers, or international education organizations may quickly file lawsuits. Many draw parallels to last year’s H-1B $10,000 fee case and speculate that the OPT rule might also face legal challenges. Li cautioned that such comparisons need to be approached carefully.
Li explained that the legal challenges regarding the H-1B fee centered on procedural issues; however, the formal notice and comment procedures followed for the OPT rule may mitigate those concerns. He also noted ongoing legal disputes concerning fee-setting authorities, highlighting potential complexities in the legal landscape.
Regarding potential plaintiffs’ arguments, Li identified several key points for substantive litigation:
1. Statutory Authority: Does the DHS have the statutory authority under the Immigration and Nationality Act and the Homeland Security Act to impose such exorbitant fees for F-1 student programs? Courts often require a clear congressional authorization for measures that significantly impact the economy.
2. Fee Nature: Standard immigration-related fees are typically based on the cost of services or regulation provided by the government. With this money going to the Treasury instead of SEVP operations, the fee appears more like a revenue-raising measure than a service fee. DHS would need to clarify the relationship between the $70,000 fee and the government’s actual costs.
3. Arbitrary Decision-Making: Under the Administrative Procedure Act (APA), agencies must provide reasonable justifications for their decisions, consider alternative solutions, and weigh the interests of all relevant parties. Why set the fee at $70,000 instead of $7,000? Did the DHS explore more precise measures to combat fraud? Were the interests of students already enrolled under the existing rules taken into account? These aspects are likely to be focal points during court hearings.
While emphasizing that substantive litigation is more challenging than procedural disputes and outcomes are harder to predict, Li underscored that the high amount and clear purpose of the rule indeed leave significant room for legal controversies.
For current and soon-to-be graduating international students, Li offered several recommendations:
1. Seize the Pre-Effective Date Window: The new rule only applies to recommendations made after it takes effect. Students planning to apply for OPT or STEM extensions should communicate with their school’s international student office about timing arrangements.
2. Exercise Caution with Pre-Completion OPT: If the rule is finalized, in-study OPT may consume the “$70,000 first-time” quota and should be carefully considered in planning.
3. Learn about Cost-Sharing Plans from Schools: How schools handle or transfer the costs could directly impact individual expenses.
4. Submit Public Comments: The comment period extends until November 9th. Li highlighted that the real situations of students, parents, employers, and schools are essential considerations for the DHS’s finalization and critical records for potential court reviews.
5. Don’t Easily Believe Rumors: Since the rule hasn’t taken effect yet, any claims of “already collecting fees” should be met with skepticism. When in doubt, seek advice from the school’s DSO or a professional attorney.
Li concluded by stating, “The final implementation and form of this rule are still unknown. What international students can do is understand the rule, plan accordingly, and express their voices through legal channels if necessary.”