United States: DHS Proposes $70,000 Fee for Initial OPT and $30,000 Fee for Subsequent OPT Periods

Under longstanding DHS regulations, F-1 students may apply for optional practical training (OPT) during their academic program (known as “pre-completion OPT”) or after completing their program (“post-completion OPT”). F-1 students are eligible for up to 12 months of post-completion OPT, and STEM graduates may be eligible for an additional 24-month extension.

The university’s Designated School Official (DSO) must recommend the F-1 student for OPT, and the student must then apply to U.S. Citizenship and Immigration Services (USCIS) for an OPT Employment Authorization Document (EAD). Although there is a USCIS fee for the EAD application (currently $520 for paper filings and $470 for online filings), there has never been a fee to obtain the DSO’s OPT recommendation.

DHS’s proposed rule would introduce new fees of $70,000 for initial OPT recommendations and $30,000 for subsequent OPT recommendations. Under the proposal, the first time a DSO recommends an F-1 student for OPT after the rule takes effect, the university would be required to pay the new $70,000 fee, and if the student undertakes any additional OPT thereafter, the university would be required to pay the new $30,000 fee for each subsequent OPT recommendation. The fees would apply to both pre- and post-completion OPT.

It is important to note that the amount of the fee would not be tied to the type of OPT being requested but rather to when the OPT request is being made. Specifically, the first request for OPT after the rule takes effect would be subject to the $70,000 fee – regardless of whether the request is for pre-completion OPT, post-completion OPT, or STEM OPT. And all subsequent OPT requests would be subject to the $30,000 fee – regardless of whether the request was for pre- or post-completion OPT or STEM OPT.

Although the proposal would require the university to pay these fees, the proposed rule would allow the university to pass on the cost of the fee to the F-1 student, or to all students, or to OPT employers. If USCIS ultimately denies the F-1 student’s OPT EAD application or the student otherwise does not receive an OPT EAD, the proposed rule would permit the university to seek a refund of the OPT fee.

The $70,000 and $30,000 fees would apply only to OPT recommendations made after the new regulation takes effect. The fees would not apply retroactively to OPT employment that is already approved and in progress at the time the rule takes effect.

The fees collected under the proposed rule would be deposited in the U.S. Treasury, because current law does not allow DHS to retain the funds for use in enforcement by U.S. Immigration and Customs Enforcement (ICE), which oversees compliance with the OPT program and is promulgating the proposed rule.

The proposal does not have immediate impact on F-1 students or employers. If it is finalized and implemented, it would represent another significant obstacle to the process of hiring foreign professionals, particularly those in the early stages of their careers – on top of the many new hurdles in place or proposed, including the new wage-weighted H-1B cap selection process, the $100,000 fee on certain H-1B cap petitions (currently on hold), the proposed $103,265 fee on H-1B cap petitions, and an anticipated final regulation raising prevailing wages for H-1Bs and PERM applications.

The proposed fee will not take effect until DHS reviews the public feedback received over the 30-day comment period and publishes a final regulation with a specific implementation date. The views of employers will be important to advise the agency about the impact of the proposal on the business community. Fragomen’s Government Strategies Group is available to assist organizations interested in submitting comments.