$70,000 OPT Fee: Comment by Nov. 9, Plan Two Budgets

$70,000 OPT Fee: Comment by Nov. 9, Plan Two Budgets

Employers that hire international graduates can still comment on DHS's proposed OPT fee through November 9, 2026. They should also start planning for both outcomes now. According to the South China Morning Post, public comments have flooded federal websites on both the OPT proposal and the separate H-1B fee proposal.¹ The number of comments does not decide the result, and neither proposal creates a payment obligation today.

Where Do the Two Fee Proposals Stand?

Neither proposal is in effect.

• OPT proposal (published October 8, 2026). SEVP-certified schools would pay $70,000 before recommending a student for initial OPT. They would pay $30,000 for qualifying later recommendations once the initial fee has been paid. Under the proposed transition rules, a student's first recommendation after the effective date could trigger the full $70,000, even if the student already had OPT. As a result, a STEM extension would not automatically qualify for the lower amount.²
• H-1B proposal. This proposal would add $103,265 to every cap-subject petition, including advanced-degree exemption cases. The fee would be payable at filing on top of other fees. Its comment period closed September 24, 2026.³ It is separate from the $100,000 payment, which courts have blocked for now, and the proposal expressly allows both charges to apply to the same petition.³

Two points are important. First, November 9 is only the last day to submit OPT comments. It does not set when any fee would start. Second, a closed comment period is not a final rule. The final rules, their effective dates, and any court orders will determine what applies, and the final terms may differ from the proposals.

Which Employees Could Be Affected?

Many early-career international hires could be affected if the proposals become final as written:

• New graduates you plan to hire on initial OPT.
• Current OPT employees approaching a STEM OPT extension.
• OPT or STEM OPT employees you intend to sponsor for a cap-subject H-1B. Working in the U.S. would not, by itself, avoid the proposed H-1B fee.

Cap-exempt H-1B filings are excluded from the H-1B proposal. For extensions and employer transfers, the employee's prior cap history and filing route generally decide whether the fee could apply.

How Can Employers Use the Current Window?

Focus on what you can control. If the OPT fee would change your hiring, a fact-based comment explaining the business impact can still be filed. Build one budget under current fees and a second budget that includes the proposed costs. Avoid promising candidates sponsorship terms that assume either outcome. Filing sooner may matter for some cases, but it is not a guaranteed way to avoid a future fee.

Your exposure depends on details that differ by employee: OPT stage, prior cap history, H-1B registration timing, and how your company would handle any school-level cost. If you wait for a final rule, you may have little time to adjust offers and budgets. Now is the time to have experienced counsel review your international hiring roster.

The Law Firm of Attorney Peng, PLLC

Information current as of October 20, 2026. Filing requirements should be confirmed against the rules in effect at the time of filing.

This newsletter is for general informational purposes only and does not constitute legal advice. Attorney advertising. © The Law Firm of Attorney Peng, PLLC.