F-1 Developments: Court Blocks Fixed Admission Rule; OPT Fee Proposal Advances
International students have been at the center of two significant immigration developments this past week.
On September 14, a federal district court in Massachusetts blocked the Department of Homeland Security (DHS) from implementing its new rule replacing the longstanding “duration of status” framework with fixed periods of admission for F-1 international students and J-1 exchange visitors. The rule had been scheduled to take effect the following day, September 15.
Under the blocked rule, F-1 students and J-1 exchange visitors generally would have been admitted for the length of their academic or exchange program, up to a maximum of four years. Individuals whose programs extended beyond their authorized period of admission would have been required to apply directly with U.S. Citizenship and Immigration Services (USCIS) for an extension of status. The rule also imposed new restrictions on changes in academic programs and educational levels and would have reduced the grace period for F-1 students following completion of their studies from 60 days to 30 days.
The court found deficiencies in DHS’s rule-making process and questioned whether the agency had adequately justified the sweeping changes based on its stated concerns regarding fraud, national security, and immigration enforcement.
For now, the existing “duration of status” framework remains in place. F-1 students and J-1 exchange visitors may continue to remain in the United States for the duration of their programs, provided they continue to maintain their immigration status. The new fixed-admission periods, USCIS extension requirements, and restrictions on academic changes are not currently in effect.
The court's decision is preliminary and does not permanently invalidate the rule. The litigation will continue, and the government may appeal the court’s decision. We will continue to monitor developments closely.
Meanwhile, a separate proposal that could impose a new fee on Optional Practical Training (OPT) is moving forward. On September 11, the White House Office of Information and Regulatory Affairs completed its review of a DHS proposal titled “Optional Practical Training Fees,” clearing the way for the proposed rule to be published for public review and comment.
OPT allows eligible F-1 students to obtain temporary employment authorization for work directly related to their field of study, generally for up to 12 months, with an additional 24-month extension available to qualifying STEM graduates. F-1 students currently pay a $470 USCIS filing fee for a Form I-765 application for employment authorization filed online.
Importantly, DHS has not yet publicly disclosed the amount of the proposed new OPT fee. News reports have indicated that the administration has considered a fee as high as $100,000, but that figure has not been confirmed in the proposed rule. The actual amount, who would be required to pay it, and other details will not be known until the proposal is published.
No new OPT fee is currently in effect. Once the proposed rule is published, the public will have an opportunity to submit comments before DHS can issue a final rule.
If DHS ultimately adopts a substantial additional OPT fee, it could significantly increase the cost of post-graduation employment for international students and affect employers that recruit graduates of U.S. colleges and universities. We will provide an update once the proposed rule is published and its details are available.
This alert is for informational purposes only. Please contact us if you would like to discuss these developments further.