Does the $100K H-1B Fee Apply to OPT Students? (You're Probably Exempt)

Does the $100K H-1B fee apply to OPT students? In most cases, no. If you change status from inside the US, you're exempt — which makes OPT grads the cheapest H-1B hire on the market.

If you're on F-1 OPT or STEM OPT and panicking about the $100,000 H-1B fee, take a breath. In most cases it does not apply to you. The fee targets new H-1B petitions for workers who are outside the US and need consular processing. When you change status from F-1 to H-1B while physically inside the country, USCIS guidance treats you as exempt — and that quietly makes OPT grads the cheapest H-1B hire on the market.

Updated May 2026.

That last part is the piece nobody is talking about. Almost every article about Proclamation 10973 is written for employers and reads like a disaster. But the same rule that makes hiring an offshore engineer cost six figures more makes you — already in the US, already cap-eligible, already trainable on day one — the low-cost option. This post explains exactly who pays, who doesn't, where you fit, and how to use that to your advantage in 2026.

A quick disclaimer up front: this is general information, not legal advice. Immigration outcomes turn on your specific facts, and you should confirm anything that affects your case with a licensed immigration attorney.

What is the $100,000 H-1B fee and Proclamation 10973?

On September 19, 2025, the White House signed a presidential proclamation titled "Restriction on Entry of Certain Nonimmigrant Workers," commonly referenced as Proclamation 10973. It imposes a $100,000 payment as a condition of certain new H-1B petitions. Per USCIS, the requirement took effect at 12:01 a.m. ET on September 21, 2025, and is structured to run for roughly 12 months.

Here's the critical detail buried in the legalese: the proclamation restricts entry. It applies to H-1B beneficiaries who are outside the United States and would be admitted via consular processing — getting an H-1B visa stamp abroad and flying in. According to the USCIS H-1B FAQ, petitioners in that situation must submit proof of the $100,000 payment (from pay.gov) or evidence of an approved exception at the time of filing, or the petition is denied.

If the worker is already inside the US, the entry-restriction logic doesn't bite the same way. That distinction is the whole ballgame for OPT students.

Does the $100,000 H-1B fee apply to OPT students?

For the large majority of OPT and STEM OPT students: no.

On October 20, 2025, USCIS issued guidance clarifying who is and isn't covered. As summarized by Yale's Office of International Students & Scholars and immigration firms including Ogletree Deakins, the agency confirmed the fee applies only to prospective H-1B beneficiaries seeking entry from outside the United States. It is not applicable to current H-1B holders or to people already inside the US who are eligible for a change of status.

USCIS even used OPT students as the example. Per the October 2025 guidance, F-1 OPT students who are eligible for a change of status to H-1B in the FY2027 cap cycle are not affected by the proclamation.

Why does this matter so much in practice? Because roughly three-quarters of current H-1B workers graduated from a US university and converted from F-1 to H-1B through a change of status from inside the country, according to analysis cited across immigration coverage (including Fisher Phillips). The "typical" H-1B path is the exempt path. The $100,000 headline was never really about you.

Change of status vs. consular processing: which one are you?

This is the only distinction that determines whether the fee touches you. Get clear on which bucket you're in.

If you're a current OPT student in the US and your employer's I-129 requests a change of status (rather than consular notification), USCIS guidance places you in the exempt rows. Transfers, extensions, and amendments for people already in valid H-1B status inside the US are exempt too — the same conclusion firms like Ogletree reached when they parsed the October guidance. If you want the deeper mechanics of switching employers once you're in H-1B, we break that down in how H-1B transfers work in 2026.

One caution: travel. If you leave the US before your H-1B is approved and try to re-enter on a new H-1B visa stamp, you can change which bucket you're in. The safest posture during a pending change of status is to stay put. Confirm your travel plans with your attorney and DSO.

Why does this make OPT students the cheapest H-1B hire?

Here's the counterintuitive good news, stated plainly. Think like a hiring manager comparing two candidates for the same H-1B-track role:

• Candidate A is an engineer overseas. To sponsor them, the company files a new H-1B for consular processing and — under Proclamation 10973 — fronts a $100,000 payment on top of normal filing fees.
• Candidate B is you: on STEM OPT in the US, ready to file a change of status, no $100,000 surcharge.

Same headcount, same visa category, same lottery odds going in — but a six-figure difference in cost. For the first time in a while, the policy environment tilts toward the candidate who is already here on OPT. You are not the expensive option. You are the discount.

This is worth saying out loud in your job search, because a lot of employers haven't internalized it. Some hiring teams saw "$100,000 H-1B fee" in a headline and quietly froze international hiring out of fear. You can defuse that in one sentence: "I'm already in the US on OPT and would file a change of status, which USCIS guidance treats as exempt from the $100,000 payment." That reframes you from a liability into the lowest-cost way to fill the role.

It pairs naturally with two other 2026 shifts in your favor: the move toward the new wage-weighted H-1B lottery, which changes selection odds for higher-paid roles, and the simple fact that finding OPT-friendly employers is easier when you can point to a concrete cost advantage.

Is the $100,000 H-1B fee even going to survive?

The fee is real today, but it is being litigated hard — and the timeline matters for anyone planning around the FY2027 cap season.

Here's where things stand as of late May 2026:

According to the Global Immigration Blog, Judge Beryl Howell of the US District Court for D.C. upheld the fee on summary judgment in December 2025, finding the administration satisfied the statutory conditions for restricting entry. The US Chamber of Commerce then appealed, and the D.C. Circuit set an expedited briefing schedule wrapping in February 2026.

Separately, a 20-state coalition led by the attorneys general of California and Massachusetts filed suit in the District of Massachusetts on December 12, 2025, arguing the fee was imposed without congressional authorization or notice-and-comment rulemaking, in violation of the Administrative Procedure Act. The list of plaintiff states is confirmed in the Maryland Attorney General's announcement and parallel releases from other state AGs.

The takeaway for OPT students: even in the worst-case scenario where every challenge fails and the fee stays exactly as written, the change-of-status exemption is part of how the fee was implemented, not a separate concession that courts could strip away. Litigation outcomes mostly affect offshore hiring economics, not your inside-the-US path. Still, don't treat any of this as settled — check the USCIS H-1B FAQ for the current state before you file.

What should you actually do with this information?

Concrete moves, in rough priority order:

1. Confirm you're filing a change of status. When an employer commits to sponsoring you, ask their immigration counsel to confirm the I-129 is requesting change of status (not consular notification). That single checkbox is what keeps you in the exempt lane.
2. Lead with the cost angle in interviews. Don't hide your status — frame it. "Already in the US on OPT, change of status, no $100K fee" is a selling point now.
3. Don't over-travel during a pending case. Leaving and re-entering can complicate the change-of-status posture. Coordinate travel with your DSO and attorney.
4. Track the litigation, but don't let it freeze you. The exemption you rely on is baked into the implementation. The appeals mostly move the needle for offshore hires, not for you.
5. Get advice on edge cases. Cap-gap timing, prior visa stamps, time spent abroad, or an employer that insists on consular processing — these are exactly the situations where 30 minutes with an attorney pays for itself.

Frequently asked questions

Does the $100,000 H-1B fee apply to OPT students? In most cases, no. The fee targets new H-1B petitions for workers who are outside the US and need consular processing. F-1 OPT and STEM OPT students who file a change of status from inside the US do not trigger the fee, per USCIS guidance issued in October 2025.

What exactly is Proclamation 10973? It is the September 2025 presidential proclamation, "Restriction on Entry of Certain Nonimmigrant Workers," that imposed a $100,000 payment on certain new H-1B petitions. It took effect at 12:01 a.m. ET on September 21, 2025, and is set to run for about 12 months.

When does the $100,000 fee actually apply? It applies to new H-1B petitions where the beneficiary is outside the United States and will be admitted through consular processing and a visa stamp. Petitions filed for those workers without proof of the $100,000 payment (or an approved exception) are denied.

I'm doing a change of status from F-1 to H-1B. Am I safe? A change of status filed while you are physically in the US on valid F-1/OPT status does not require the worker to be admitted from abroad, so USCIS guidance treats it as outside the fee. This is informational, not legal advice — confirm your specific facts with an attorney.

Does the fee apply to H-1B transfers, extensions, or amendments? No. USCIS guidance confirms that renewals, extensions, amendments, and change-of-employer petitions for workers already in valid H-1B status inside the US are not subject to the fee.

Is the $100,000 fee still being challenged in court? Yes. A federal judge upheld the fee in December 2025, the US Chamber of Commerce appealed, and the D.C. Circuit fast-tracked the case with briefing concluding in February 2026. A separate 20-state lawsuit was filed in Massachusetts on December 12, 2025.

Why does this make OPT students cheaper to hire than offshore candidates? An offshore candidate needing consular processing now carries a $100,000 surcharge. An OPT grad filing a change of status from inside the US does not, so you are the lower-cost path to the same H-1B headcount.

What should I tell an employer who is nervous about the fee? Tell them you are already in the US on F-1/OPT and would file a change of status, which USCIS guidance treats as exempt from the $100,000 payment. Point them to the USCIS H-1B FAQ so their counsel can confirm.

Worried about how the $100K fee plays out for your specific situation, or want help framing your OPT status as the cost advantage it actually is? F1Jobs — we help international students and new grads navigate the H-1B path and connect with employers who sponsor, every week.