Why OPT Students Don't Pay the $100,000 H-1B Fee

Regulation & Ethics record. Last verified: July 31, 2026, using the USCIS H-1B FAQ updated July 28, 2026. This is a filing-posture explainer, not legal advice. The nationwide vacatur of the $100,000 H-1B fee currently stands after the First Circuit denied the government’s stay motion on July 24, 2026, but that is a live procedural posture, not a final end to the litigation.

If you arrived here searching for “OPT 100000 dollar fee update 2025 immigration law,” the first correction matters: there is no $100,000 OPT fee. OPT is F-1 work authorization. The $100,000 charge came from a September 19, 2025 presidential proclamation directed at certain H-1B entries, effective at 12:01 a.m. EDT on September 21, 2025, issued under INA §§ 212(f) and 215(a), with a stated 12-month term and a discretionary national-interest exception mechanism.[1]

The current USCIS FAQ is the second source to check because it reflects the agency’s enforcement posture after the June vacatur and the First Circuit’s July 24 stay denial. As of the July 28, 2026 FAQ update, USCIS describes the fee as vacated, says the agency is not collecting it while the order remains in place, and states that DHS will resume collection if the order is lifted; the FAQ also confirms that the fee does not apply to H-1B renewals.[2]

That sequence is the safest way to answer a panicked student or adviser: proclamation first, current USCIS FAQ second, filing posture third. Do not start by asking whether the worker is “international,” “on OPT,” or “going for H-1B.” Ask where the beneficiary is, what the petition requests, and whether the case requires visa issuance or entry.

The fee question turns on filing posture, not student status

The recurring error is treating OPT, H-1B registration, H-1B petition filing, consular processing, visa issuance, and admission at a port of entry as one continuous event. They are not one event. An F-1 student can be working on post-completion OPT or STEM OPT inside the United States while an employer files an H-1B petition requesting change of status. That is a different posture from an employer filing for a beneficiary outside the United States who will need consular notification, a visa, and entry.

USCIS’s October 2025 applicability guidance, as summarized in practitioner reporting, drew the practical line around filing type and location: the fee-applies category involved petitions filed after the effective date for beneficiaries outside the United States without a valid H-1B visa and requiring consular notification, port-of-entry processing, or pre-flight inspection; the fee-does-not-apply category included change-of-status, amendment, and extension approvals for beneficiaries inside the United States.[3]

For an OPT student, the key phrase is not “OPT to H-1B.” The key phrase is “H-1B change of status filed while the beneficiary is in the United States.” If that is the filing posture, the student is not being charged $100,000 for OPT, and the case is not the outside-the-country entry case the proclamation and applicability guidance were aimed at.

That does not mean every worker who once had F-1 status is safe from the fee analysis. If an employer chooses consular processing, or the beneficiary is outside the United States at the relevant filing point, the answer changes. A student’s immigration history may explain how they got to the H-1B filing, but the fee question is answered from the filing request, beneficiary location, visa facts, and current enforceability posture.

Why a domestic F-1 change-of-status case is different

OPT is permission for an F-1 student to work in the United States in a field related to the student’s program. It is not an H-1B visa, not a consular appointment, and not an admission document. When an employer files an H-1B petition for a student already in the United States and asks USCIS to change the student’s status from F-1 to H-1B, the petition is asking USCIS to act domestically.

That is why the OPT panic has been so damaging. A student can be told, incorrectly, that merely being in the OPT-to-H-1B pipeline creates a six-figure charge. The actual question is narrower: does this H-1B filing require the beneficiary to obtain H-1B visa issuance abroad or otherwise enter under the fee-gated category? If the answer is no because the petition is a domestic change of status, the $100,000 proclamation fee is not the student’s OPT cost under the agency’s applicability framework.[3]

The current USCIS fee schedule still matters, but not as a substitute for the proclamation and FAQ. Advisers should check USCIS Form G-1055 for current agency filing fees and then separately check the H-1B FAQ for the proclamation-fee posture, because ordinary form fees and the disputed $100,000 entry-condition charge are not the same question.[4][2]

Current enforceability: vacated nationally, still appealable

The litigation history matters only to the extent it changes the advice you give today. The Massachusetts case began with a December 12, 2025 complaint challenging the $100,000 H-1B entry fee.[5] On June 8, 2026, Judge Leo Sorokin in State of California v. Mullin struck down the fee, with reporting describing the ruling as holding that the charge was an unlawful tax imposed without congressional delegation and violated the Administrative Procedure Act.[6]

The June ruling did not end the matter on the day it issued. Practitioner updates tracked a short self-stay period and government stay activity in June, including a June 18, 2026 stay motion.[5][7] The important current point is what USCIS now says after the First Circuit’s July 24, 2026 denial of the government’s stay motion: the vacatur remains in effect nationwide, USCIS is not collecting the fee while the order remains in place, and DHS intends to resume collection if the order is lifted.[2]

Do not turn that into “the fee is gone forever.” It is more precise, and safer, to say the fee is currently vacated nationally and collection is currently stopped, but the result remains reversible while appeals and parallel litigation continue. The D.C. Chamber case and a separate San Francisco challenge by religious and labor organizations prevent any clean one-sentence litigation summary. For broader doctrine and docket posture, use the site’s companion records on why the $100K H-1B fee lost in Massachusetts but survived in D.C., the three H-1B visa-ban challenges, and the appeal-pending docket record.

Pre-filing verification checklist

Before answering a student, employer, recruiter, or department chair, force the question into a dated filing record. The answer should survive being read a week later by someone who was not in the room.

• Record the verification date and source set. As of July 31, 2026, the controlling public agency posture is the USCIS H-1B FAQ updated July 28, 2026, plus the underlying proclamation and fee schedule.[2][1][4]
• Verify the postmark or filing date. The proclamation was effective at 12:01 a.m. EDT on September 21, 2025 and was framed prospectively around filings after that effective point.[1]
• Name the filing type. Is the petition requesting change of status, amendment, extension, renewal, consular notification, port-of-entry processing, or pre-flight inspection? Do not accept “OPT to H-1B” as the filing type.
• Confirm beneficiary location at filing. Inside-the-United-States change-of-status cases are analyzed differently from outside-the-United-States consular-processing cases under the USCIS applicability guidance.[3]
• Check whether the beneficiary already has a valid H-1B visa. The outside-the-country fee-exposure analysis depends in part on whether the beneficiary is outside the United States without a valid H-1B visa.[3]
• Separate ordinary USCIS filing fees from the disputed $100,000 proclamation fee. Use G-1055 for current USCIS filing fees, but do not use it alone to answer the proclamation-fee question.[4]
• Re-check the live procedural posture. As of the current USCIS FAQ, collection is stopped because the vacatur remains in place; DHS says it will resume collection if the order is lifted.[2]
• Write the answer in conditional form when litigation matters: “Based on the USCIS FAQ last checked on [date], and assuming this remains a domestic change-of-status filing for a beneficiary inside the United States, the $100,000 proclamation fee does not apply.”

This checklist is deliberately narrower than a general H-1B strategy memo. It does not answer lottery probability, cap-gap planning, wage-level strategy, or whether the proclamation will be extended beyond September 20, 2026. Those may be important questions, but they are not the same as whether an OPT student owes a $100,000 OPT fee.

For related verification formats, compare the site’s workflow records on air-travel safety verification for noncitizens and airport and expired-visa rights checks. For adjacent USCIS obligations tracking, see the records on TPS employer compliance and USCIS asylum-interview changes.

The answer to give an OPT student

OPT students do not pay a $100,000 OPT fee. F-1 students on OPT or STEM OPT whose employers file H-1B change-of-status petitions from inside the United States are not the consular-entry population the proclamation targeted under USCIS’s applicability guidance. Even for fee-exposed consular-processing scenarios, the $100,000 fee is currently vacated nationwide and USCIS is not collecting it while the order remains in place, subject to appeal risk and re-verification before filing.[2][3]

References

1. Restriction on Entry of Certain Nonimmigrant Workers, The White House, September 19, 2025
2. H-1B FAQ, USCIS, July 28, 2026
3. USCIS Issues Updated Guidance on New $100,000 H-1B Fee, Littler, October 22, 2025
4. G-1055, USCIS
5. H1B Litigation Update, Grossman Young & Hammond, June 18, 2026
6. Federal judge strikes down Trump’s $100,000 fee on new H-1B visas for high-skilled workers, PBS NewsHour, June 8, 2026
7. Court Strikes Down $100,000 H-1B Entry Fee, But Fee Still Applies Pending Appeal, Vorys, June 24, 2026