Can the $100,000 OPT Fee Survive the H-1B Precedent?

The immediate answer is narrower than most headlines allow: the H-1B ruling does not, by itself, kill the reported $100,000 OPT fee proposal. As of July 31, 2026 UTC, the OPT fee is still only a reported proposal, sourced anonymously in July 30 coverage by The Wall Street Journal and Bloomberg; there is no operative Federal Register notice, no DHS or USCIS fee rule, no pay.gov instruction, and no announced change to the I-765 filing fee for OPT applications. The White House response, as reported, did not announce an imminent policy change.[1][2]

That status matters. Coverage that described the possible OPT charge as the H-1B fee’s “equivalent” captured the obvious political and dollar-amount comparison, but not the legal posture.[3] The existing H-1B record is concrete: Proclamation 10973 created a $100,000 H-1B payment requirement; the district court in State of California v. Mullin vacated it; USCIS’s July 28 FAQ confirms the vacatur and the First Circuit’s July 24 denial of a stay; and the government’s merits appeal remains pending.[4]

This analysis is a record-status and legal-viability assessment, not legal advice. The professional answer for employers, universities, and counsel is still tracked uncertainty: one fee has been vacated; another has not yet been proposed in legally operative form.

The H-1B precedent is real, but it is not as broad as the dollar figure

Proclamation 10973 was issued on September 19, 2025, published at 90 Fed. Reg. 46027, and made effective on September 21, 2025 for a 12-month period. It invoked INA §§ 212(f) and 215(a) and tied entry of certain H-1B workers to a $100,000 payment.[5] That matters because the court was not reviewing an ordinary agency fee schedule after notice and comment. It was reviewing a presidential proclamation that imposed a large exaction on access to a statutory nonimmigrant visa category.

Judge Leo T. Sorokin’s June 8, 2026 Memorandum and Order in State of California v. Mullin vacated the H-1B fee.[6] USCIS then obtained a short administrative stay on June 12, but the First Circuit denied a stay pending appeal on July 24 in Case No. 26-1699.[4][7] A stay denial is not a final merits decision, and the government can still pursue the appeal, but it is a litigation signal that cannot responsibly be ignored.

USCIS’s own FAQ keeps the posture straight. The agency says the district court’s order is in effect, says it “strongly disagrees” with the decision, and states that it will resume collecting the $100,000 payment if the order is lifted.[4] That is not acquiescence. It is also not a live collection regime.

The operational residue is just as important for client briefings. Secondary employer alerts describe no announced refund mechanism for H-1B payments already made and note that several filings often discussed in the same breath—such as many extensions, amendments, change-of-employer cases, and most change-of-status filings—were not within the proclamation’s central entry-payment theory in the first place.[8] That scope point is one reason the H-1B order should not be paraphrased as “courts rejected any $100,000 immigration fee.”

Why an OPT fee would enter through a different legal door

OPT is not an H-1B visa. USCIS describes Optional Practical Training as temporary employment that must be directly related to an F-1 student’s major area of study, with separate rules for pre-completion OPT, post-completion OPT, and STEM OPT extensions.[9] The legal basis is regulatory, not an express statutory visa category carrying the same structure as H-1B.

That distinction cuts in two directions. It weakens a simple copy-and-paste challenge that says: the H-1B proclamation fee was an unauthorized tax, therefore the OPT fee must be invalid too. But it also prevents the administration from ending the inquiry with the phrase “OPT is regulatory.” A regulatory program can be upheld in principle and still be vulnerable to a poorly justified or improperly characterized fee.

The WashTech litigation history is the caution sign. OPT was created by regulation in 1992 and later expanded through agency action in 2008 and 2016; the WashTech line upheld DHS’s authority to maintain OPT, but it also put DHS rulemaking under APA scrutiny rather than treating the program as immune from review.[10] For a future $100,000 OPT charge, that is the better starting point than the H-1B proclamation record.

If DHS tried to impose an OPT charge by proclamation-style maneuver rather than rulemaking, the H-1B decision would become more directly relevant. But the reported OPT proposal, as described so far, does not identify the instrument, the statutory authority, the affected filing, the timing, or the population covered. Those omissions are not minor publication details; they determine the route of review.

The hard question would be whether $100,000 is a fee or a tax

A future OPT rule would likely face an immediate characterization fight. A filing fee normally funds the cost of administering a benefit request. A tax raises revenue or imposes a broader economic burden without the same cost-to-service fit. The larger the gap between the agency’s processing costs and the amount charged, the harder DHS would have to work to explain why the number is a lawful fee rather than a punitive or revenue-raising measure.

The H-1B vacatur helps challengers on that point, but only as analogy. The court reviewed a $100,000 entry-linked exaction imposed through Proclamation 10973.[5][6] An OPT charge issued through notice-and-comment rulemaking would come with a different record, different asserted authority, and likely different administrative explanations. The fact that both proposals use the same number would be rhetorically powerful; it would not complete the statutory analysis.

The agency record would therefore matter more than the press report. DHS would need to identify the legal authority for charging the amount, explain the connection between the charge and the government service or regulatory objective, respond to material comments, and address predictable reliance and economic effects. A conclusory statement that OPT is discretionary work authorization would invite the same kind of administrative-law challenge that has shaped the OPT cases for years.

Economic evidence is not just policy rhetoric in an APA case

The Peterson Institute for International Economics brief is useful here because it is not merely a generalized plea for international students. It models a one-third reduction in international students and recent graduates in STEM and estimates annual GDP losses of $240 billion to $481 billion within a decade; it also projects a 6.2% shrinkage in the overall STEM workforce and an 11.5% shrinkage in the PhD-level STEM workforce under that scenario.[11]

The same brief reports that 51% of cap-subject H-1B petitions from 2021 through 2024 were filed for F-1 students.[11] That number does not prove a $100,000 OPT fee would be unlawful. It does identify a reliance pathway that a rulemaking record could not sensibly pretend is incidental: F-1 study, OPT work authorization, and H-1B sponsorship are often parts of the same employment pipeline.

For arbitrary-and-capricious review, the question is not whether a court agrees with the administration’s immigration policy. It is whether the agency considered important aspects of the problem and gave a reasoned explanation for the choice it made. If DHS were to set a $100,000 OPT charge while ignoring record evidence about labor-market reliance, university planning, and employer sponsorship pathways, challengers would have a cleaner APA argument than they would from moral outrage alone.

The July 16, 2026 DHS final rule ending duration of status for foreign students is relevant only in that limited sense. It shows the administration’s broader enforcement posture toward F-1 status, but it does not itself authorize or announce a $100,000 OPT fee.[12] Conflating the two would make the record less clear, not more.

Codifying OPT would change one problem, not every fee problem

Pending legislative proposals also need careful labeling. The Keep Innovators in America Act has been described as a bill to codify OPT, which would make executive-only elimination harder.[13] That is not the same as saying Congress has barred all future OPT fees. If Congress itself authorized a fee, or set a fee standard, the analysis would change again.

For the reported proposal now in circulation, however, there is no enacted OPT codification and no published fee authority. The question remains administrative: what instrument does the administration use, what authority does it claim, what amount does it set, what explanation does it give, and what record does it confront?

What counsel can say now without overstating the record

• The OPT fee is reported, not operative. There is no published Federal Register proposal or final rule as of July 31, 2026.
• The H-1B $100,000 fee has been vacated at the district-court level, and the First Circuit has denied a stay, but the merits appeal is still pending.[4][6][7]
• The H-1B ruling is a strong warning against large proclamation-based immigration exactions, not a universal holding against every future $100,000 immigration charge.
• An OPT fee issued through notice-and-comment rulemaking would likely be challenged on tax-versus-fee grounds and under the APA, especially if DHS cannot justify the amount or address economic reliance evidence.
• A Supreme Court stay application or later appellate merits decision in the H-1B case could change the background signal, but it would still not supply the missing text of an OPT rule.

The reported $100,000 OPT fee is legally vulnerable, especially if the administration cannot tie the amount to lawful fee authority or reasoned administrative findings. It is not, on the present record, a copy-and-paste loser under the H-1B ruling. Until DHS publishes an actual rule, notice, or instruction, the only accurate client-facing answer is disciplined uncertainty: the H-1B precedent matters, but the OPT fight has not legally begun.

References

1. U.S. Weighs $100,000 Fee for Foreign Students Wanting to Work After Graduation, WSJ, July 30, 2026.
2. Trump Weighs $100,000 Fee for Foreign Students to Work Post-Grad, Bloomberg, July 30, 2026.
3. White House Weighs $100K OPT Fee; Court Already Killed Its H-1B Equivalent, TechTimes, July 30, 2026.
4. H-1B FAQ, USCIS, updated July 28, 2026.
5. Restriction on Entry of Certain Nonimmigrant Workers, Federal Register, September 24, 2025.
6. Memorandum and Order, U.S. District Court for the District of Massachusetts, June 8, 2026.
7. Order, Case 26-1699, U.S. Court of Appeals for the First Circuit, July 24, 2026.
8. Court Blocks $100,000 H-1B Fee: What Employers Must Know, Francis Law Center, July 2026.
9. Optional Practical Training (OPT) for F-1 Students, USCIS.
10. Trump threatening international students and new bill could help stop him, Office of Rep. Sam Liccardo.
11. Class dismissed: The effect of international student exclusion on US STEM, Peterson Institute for International Economics, June 2026.
12. Trump Administration Issues Final Rule to End Foreign Student Visa Abuse, DHS, July 16, 2026.
13. Keep Innovators in America Act, NAFSA.