Dear Erica,
Despite Congress being in recess this week, it has been busy! I think I said that last week too, so I guess this is the new normal...
First of all, an update on our court case against Department of Homeland Security (DHS) and their final rule to end the Duration of Status (D/S) framework. On September 3, the U.S. District Court for the District of Massachusetts will hold a hearing for our case. This will be an opportunity for the judge to pose questions of both sides and potentially rule on our motion for a preliminary injunction which would immediately halt the rule’s implementation. Stay tuned to NAFSA’s social media channels for updates.
ICYMI, the suit argues that the final rule violates the Administrative Procedure Act because DHS failed to: adequately assess its costs and benefits; meaningfully respond to public comments; consider less burdensome alternatives; or justify the rule based on its stated objectives. We also argue DHS Final Rule thus exceeds its statutory authority by attempting to rewrite immigration law through regulatory action. More to come next week!
A second broadcast message was sent by the SEVP (Student and Exchange Visitor Program) that addresses F-1 Curricular Practical Training (CPT) eligibility standards. The first one, issued on August 12, was alarming in that it indicated that CPT may be granted only if it “is indeed a core and essential part of the student’s studies, without which, they would be unable to complete their degree.” The second broadcast message, sent on August 24, doubles down on this definition of “essential” as “impossible to graduate without CPT,” which is a significant departure from prior agency policies over the decades. As immigration attorney Bernard Wolfsdorf observed in a Network NAFSA discussion, “it is very difficult when the posted speed limit is 50 mph (miles per hour) but they issue citations at 40 mph.” NAFSA is analyzing the language of the guidance and monitoring the issue closely. Stay tuned!
In other rule-making news, on August 25, DHS published a proposed rule that seeks to establish an additional fee of $103,265 on all initial H‑1B cap‑subject petitions, payable at the time of filing. While higher education institutions are not subject to the cap and thus not subject to this proposed additional fee, it would undoubtedly concern international student graduates of U.S. universities as they consider their job prospects in this country. This follows the government’s attempt last September to impose a $100,000 fee through a proclamation, which was ruled unlawful by the courts. The government’s primary rationale for the fee is that it will generate more than $8 billion annually to fund immigration functions. However, as Stuart Anderson pointed out in a piece for Forbes, data shows H-1B cap-related filings plunged significantly after the September proclamation, a fact that was not properly acknowledged in the notice of proposed rulemaking. The public comment period is open through September 24. Visit NAFSA’s website for more information.
We are also anticipating a proposed rule package that could institute a new fee related to Optional Practical Training (OPT). Details are scant but the media have reported it could be a $100,000 fee triggered by an F-1 student filing an application for OPT. NAFSA’s resource page will be updated once more information is known.
Lastly, the U.S. State Department published 2025 F-1 visa issuance data which, according to the PIE News, shows visa issuance plummeted by 34 percent from 2024 to 2025. As NAFSA CEO Fanta Aw commented in a related PIE News story, while visa issuance declines should not be interpreted “as a one-for-one reduction in international student enrollment,” the data was evidence of the “formidable” visa barriers facing international students.
WHAT YOU CAN DO:
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Register for the Policy & Regulatory Update for NAFSA members on September 9. This will feature an update from NAFSA experts and our legal representation on CPT, OPT, H-1B, and D/S litigation. You won’t want to miss it!
Thank you for reading.
Best,
Erica
Erica Stewart
Senior Director, Advocacy & Strategic Communications
NAFSA: Association of International Educators
