Optional Practical Training Under DHS’s Final Rule, Part V Comes with Implementation Risks, Processing Delays, Litigation Questions, and What Students, Schools, and Employers Should Do Now

The earlier articles in this OPT series explained what the Final Rule requires for post-completion OPT and STEM OPT. This final installment addresses the questions that the regulatory text cannot answer by itself –  whether USCIS can process the expected volume of extension applications, how the agency will coordinate Forms I-539 and I-765, whether premium processing will become available, what happens when one application encounters a delay, and which legal theories may shape future challenges.

DHS openly acknowledges that the Final Rule will produce a substantial increase in extension-of-stay applications. Over its ten-year analysis period, DHS estimates an annual average of approximately 393,500 extension requests from F nonimmigrants, in addition to 28,000 from J nonimmigrants and 6,000 from I nonimmigrants. These figures cover the Final Rule as a whole, rather than OPT alone, but they illustrate the volume that USCIS, schools, students, and employers must absorb.

DHS expects the largest increase in extension filings to emerge about four years after the September 15, 2026 effective date, when many students and exchange visitors reach the outer limit of their initial or transitional admission periods. DHS believes this interval will give the agency time to adjust staffing, systems, and workflows. At the same time, DHS concedes that existing extension backlogs exist and expressly states that it cannot guarantee USCIS processing times.

The Chicago immigration lawyers of Zneimer & Zneimer P.C. are studying the Final Rule and explaining its requirements throughout this series. This article distinguishes among what the rule requires, what DHS predicts in its preamble, and what remains uncertain as a matter of implementation or future litigation.

The Rule’s Implementation Calendar

The Final Rule does not move every F-1 student into the same procedural system on the same day. Its permanent rules and transition provisions operate on different timelines.

The November 14, 2030 date does not apply to every F-1 student. It serves as the outside date for qualifying F nonimmigrants who properly maintained status on September 15, 2026 and entered under Duration of Status. Their actual transition date may occur earlier, depending upon the program end date on the Form I-20 or the expiration date on an existing EAD.

A qualifying transition student who timely files Form I-765 for post-completion OPT or STEM OPT by March 18, 2027 may avoid the new Form I-539 requirement for that requested training period. DHS may extend that deadline in six-month increments, but only through a Federal Register notice. Students and DSOs should not assume that DHS will grant an extension unless the agency actually publishes one.

DHS Has Promised Guidance, but the Operating Details Will Continue to Develop

DHS states that updates to the SEVIS, CBP, and USCIS systems are underway. It also promises detailed implementation guidance, stakeholder outreach, and training for DSOs and government officers. DHS identifies the Study in the States website, the SEVP Response Center, the USCIS Contact Center, and CBP resources as principal sources of implementation information.

That commitment matters because the regulatory text does not resolve every operational question. For example, USCIS currently anticipates using Form I-539 for F-1 extension requests, but DHS retained general regulatory language so that USCIS may adopt a different form if workload or efficiency considerations justify a change. USCIS may also require biometrics and an interview in individual cases.

Schools, students, and employers therefore must distinguish between three types of authority:

1. The Final Rule, which establishes binding legal requirements.
2. USCIS and SEVP instructions, which will explain how applicants must satisfy those requirements.
3. Institutional procedures, which schools and employers must create to track filings, employment authorization, and immigration deadlines.

A school policy cannot replace a regulatory requirement. At the same time, the regulation alone may not tell a student which online filing path to use, how USCIS will link related cases, or how quickly SEVIS will reflect an approval. Those matters will depend on agency implementation.

The Expected Filing Volume Is Substantial

DHS estimates that the Final Rule will generate an annual average of approximately 393,500 F extension-of-stay requests over its ten-year analytical period. DHS also estimates 28,000 J requests and 6,000 I requests annually.

The agency estimates total annualized costs of approximately $443.1 million to $448.6 million for U.S. and non-U.S. parties. When DHS considers U.S. parties alone, it estimates annual costs of approximately $119.9 million to $125.1 million. These figures cover the Final Rule as a whole and include more than OPT and STEM OPT filings.

DHS also projects significant institutional work. It estimates that DSOs and Responsible Officers will spend approximately three hours on each F-1 or J-1 extension request reviewing Form I-539, updating SEVIS, tracking the case, and advising the nonimmigrant. DHS estimates that human resources personnel will spend approximately 1.5 hours per F-1 extension request tracking form updates and avoiding employment authorization errors involving Form I-9.

These figures reinforce a practical point that the Final Rule does not create a filing obligation only for students. It creates a new compliance system involving students, DSOs, employers, human resources departments, USCIS officers, CBP officers, and SEVIS administrators.

Processing Delays Are a Known Implementation Risk

Commenters warned DHS that the additional filing volume could lengthen processing times and prevent students from beginning OPT as scheduled. DHS agreed that USCIS will receive more fee-paying extension applications after the Final Rule takes effect.

DHS nevertheless predicts that the largest increase will not occur until four years after the rule’s effective date. The agency believes that this interval will allow it to shift resources and integrate the new applications into existing workflows. DHS also stated that, at the time of its analysis, USCIS completed 80 percent of Forms I-539 for F, M, and J nonimmigrants within three months. DHS expects the additional filing fees to support the resources needed to mitigate queue growth.

Those statements express an agency prediction, not an enforceable service standard. Elsewhere in the Final Rule, DHS expressly states that it cannot guarantee processing times because security screening, workload, evidentiary issues, and other factors affect adjudication. DHS encourages nonimmigrants to file well in advance of the expiration of their authorized stay.

For OPT applicants, processing time carries consequences beyond inconvenience. Outside the transition exception, a student seeking post-completion OPT generally must obtain both the extension of stay and the employment authorization before beginning new post-completion employment. A properly filed Form I-539 may place the student in a period of authorized stay, but that period does not itself authorize new post-completion OPT employment.

Concurrent Filing Reduces Risk but Does Not Eliminate It

DHS recommends that students file Form I-539 and Form I-765 concurrently. The agency states that related cases will be adjudicated together. It declined, however, to merge the two benefits into one form. The applications remain legally distinct and must be filed on separate forms, with their respective evidence and fees.

Concurrent filing should help USCIS coordinate the applications, but the Final Rule does not create a guaranteed adjudication deadline. Nor does it provide automatic approval when one application remains pending beyond the requested OPT start date.

Several practical problems could arise:

1. USCIS may reject one filing while accepting the other because of a signature, fee, form-edition, or filing error.
2. USCIS may issue a Request for Evidence concerning maintenance of status on Form I-539 while the Form I-765 remains otherwise approvable.
3. Biometrics or an interview may delay the extension application.
4. USCIS may approve one benefit first even though the agency intends to coordinate the decisions.
5. A student may receive an EAD that cannot yet support employment because the required period of F-1 admission remains unresolved.

These are implementation risks, not statements that USCIS will necessarily process cases in this manner. The Final Rule promises coordinated adjudication, but it does not specify every procedure USCIS must follow when one of two related applications encounters a defect.

STEM OPT Offers More Employment Protection Than Initial Post-Completion OPT

The existing STEM OPT regulations provide a qualifying student with an automatic EAD extension of up to 180 days when the student timely files the STEM OPT Form I-765 before the current EAD expires. The Final Rule preserves that protection.

Initial post-completion OPT does not receive the same general automatic employment extension. Outside transition relief or another specific exception, a student cannot begin new post-completion OPT merely because Forms I-539 and I-765 remain pending.

This distinction creates different risk profiles:

Students and employers should not use the STEM OPT automatic-extension rule as a general rule for all OPT filings.

Premium Processing Is Not Yet a Guaranteed Solution

Commenters asked DHS to provide premium processing for the new Form I-539 population. DHS did not establish premium processing in the Final Rule. Instead, USCIS states that it will continue to explore whether to expand premium processing for affected Form I-539 applicants and will notify the public through its premium-processing webpage if it does so.

Until USCIS formally creates such an option, applicants may request expedited processing. USCIS considers expedite requests case by case, ordinarily requires supporting documentation, and retains sole discretion to grant or deny the request. An applicant cannot treat an expedite request as a substitute for early filing.

A prudent compliance plan should therefore assume ordinary processing. Students and employers should not structure a job start date around the expectation that USCIS will grant an expedite request.

Important Operational Questions Remain

The Final Rule answers the principal legal questions, but several operational matters will depend on later guidance and actual agency practice.

How will USCIS link online and paper filings?

The agency recommends concurrent filing and promises coordinated adjudication. Applicants still need instructions explaining how to identify the related receipt numbers, particularly if one form is filed electronically and the other by mail.

What happens when USCIS rejects only one filing?

Because Forms I-539 and I-765 remain separate, a rejection of one may create a deadline problem even when USCIS accepts the other. Students should confirm receipt of both applications and respond immediately if either filing is rejected.

How quickly will SEVIS reflect an approval?

The Final Rule anticipates system coordination, but commenters identified concerns about delays or uneven entry of USCIS decisions into SEVIS. DHS has promised guidance and system updates, but schools should create a process for reconciling the USCIS notice, Form I-94, EAD, Form I-20, and SEVIS record.

How frequently will USCIS require biometrics or interviews?

The regulation authorizes USCIS to require both. DHS declined to waive these tools categorically and stated that they support identity verification, background checks, fraud screening, and national security. The frequency and timing of these requirements may materially affect processing.

Will DHS extend the March 18, 2027 transition deadline?

DHS reserved authority to extend the temporary Form I-539 exemption in six-month increments. The rule does not promise an extension. Stakeholders must monitor the Federal Register rather than rely on informal announcements or assumptions.

How will travel affect coordinated applications?

The Final Rule permits travel in some circumstances without automatic abandonment of the extension request. It also provides that USCIS may deem the Form I-539 abandoned when the student departs and then obtains a new CBP admission based on a Form I-20 extending beyond the former admission period. USCIS will not treat the related Form I-765 as abandoned solely for that reason. The practical effect will depend on what admission the student requests and receives at the port of entry.

Potential Litigation Will Focus on the Administrative Record

The Final Rule itself identifies the principal legal objections raised during notice and comment. Future litigants may refine those objections, but the most likely theories arise under the Immigration and Nationality Act, the Administrative Procedure Act, and constitutional procedural principles.

The discussion below identifies potential claims and DHS’s responses. It does not predict whether any claim will succeed.

Statutory Authority

DHS relies primarily on INA § 214(a), 8 U.S.C. § 1184(a), which authorizes the Secretary to prescribe by regulation the time and conditions of nonimmigrant admission. DHS also relies on INA § 103 and provisions assigning immigration-adjudication and student-monitoring functions to DHS components.

A challenger may argue that Congress created F-1 status for the purpose of completing a qualifying course of study and did not authorize DHS to impose a system that may interrupt education or practical training through repeated discretionary adjudications.

DHS responds that Duration of Status arose by regulation rather than statute. According to DHS, Congress neither mandated D/S nor prohibited fixed admission periods. DHS maintains that § 214(a) expressly authorizes it to set admission periods and conditions.

The Major Questions Doctrine and Independent Judicial Review

Commenters argued that the Final Rule carries sufficient economic and political significance to require clearer congressional authorization. DHS rejects that characterization and states that setting time limits for specified nonimmigrant classes falls within the authority that Congress reasonably granted in INA § 214(a).

DHS also acknowledges that the Supreme Court overruled Chevron deference in Loper Bright Enterprises v. Raimondo. A reviewing court will therefore exercise independent judgment when interpreting the relevant statutes rather than deferring simply because DHS adopted a permissible interpretation.

The central question would not necessarily be whether DHS’s interpretation appears reasonable. A court may instead ask whether the statute, read using traditional interpretive tools, actually authorizes the challenged requirement.

Arbitrary and Capricious Review

Potential APA claims may argue that DHS did not establish a rational connection between the problems it identified and the breadth of the remedy it adopted. Challengers may focus on the processing burdens, the two-form OPT procedure, the potential for employment interruptions, the costs imposed on schools and students, or the availability of narrower alternatives such as enhanced SEVIS enforcement. Commenters raised many of these objections during rulemaking.

DHS responds that the Final Rule addresses fraud, abuse, national security, program integrity, and overstay concerns. It states that fixed admission periods produce clear end dates and periodic government review. DHS also states that it considered alternatives, including preserving the status quo and adopting different admission periods.

A reviewing court would examine the administrative record and determine whether DHS adequately considered significant objections, explained its policy choice, and accounted for the consequences of changing longstanding practice.

Reliance Interests

Students, families, universities, employers, and exchange sponsors built programs and long-term plans around Duration of Status. DHS expressly recognizes these reliance interests. It argues that the four-year admission framework, transition periods, delayed filing surge, and extension procedures give affected parties sufficient time and flexibility to adjust.

A challenge may contend that DHS acknowledged those interests but did not adequately accommodate them, particularly for doctoral programs, research projects, medical training, and employment arrangements that commonly extend beyond four years.

The litigation question would concern adequacy, not mere acknowledgment. Courts reviewing a policy reversal generally examine whether the agency seriously considered reliance interests and reasonably explained why its new policy nevertheless prevails.

Procedural Due Process and Review of Denials

An extension-of-stay denial cannot be appealed administratively. DHS notes that this limitation existed before the Final Rule and also applies to many other nonimmigrant extension decisions. An applicant may file a motion to reopen or reconsider, and USCIS must provide specific reasons for denial.

Potential claims may focus on the consequences of an erroneous denial, especially when the decision affects both F-1 admission and employment authorization. DHS responds that there is no federal constitutional right to higher education or practical training, that USCIS provides a reopening and reconsideration procedure, and that the rule does not remove an existing right to administrative appeal because no such appeal existed for Form I-539 denials.

Retroactivity

DHS states that the Final Rule does not impose new penalties for status violations that occurred before the effective date. A nonimmigrant who had already fallen out of status before September 15, 2026 does not qualify for transition protection and must seek reinstatement or depart. A person who properly maintains status on the effective date enters the transition framework and may begin accruing unlawful presence only after overstaying the new fixed period.

Future disputes may still arise over specific applications of the transition rules. DHS’s statement that the rule is not retroactive will not necessarily resolve every as-applied question involving preexisting programs, prior conduct, or documents issued before September 15, 2026.

Severability May Produce Partial Rather Than Complete Relief

The Final Rule includes severability provisions. DHS states that if a court invalidates or prevents enforcement of one requirement, the remaining provisions should continue operating independently to the extent possible.

This matters for litigation strategy. A successful challenge to one OPT provision may not automatically restore Duration of Status or invalidate every related requirement. A court may need to decide whether the challenged provision can function independently and whether leaving the remainder in place would remain consistent with DHS’s regulatory design.

Partial relief could also create implementation complexity. For example, invalidating the Form I-539 requirement while preserving fixed admission dates, travel rules, and the 30-day departure period could require further agency guidance.

A Legal Challenge Would Not, by Itself, Change the Compliance Deadline

The Final Rule states that September 15, 2026 is the effective date, subject to congressional review. Unless DHS publishes a different effective date, terminates the rule, or a court grants relief affecting implementation, students, schools, and employers should prepare to comply with the published requirements.

Stakeholders should not assume that the filing of a complaint automatically suspends the rule. They should monitor official Federal Register notices, USCIS announcements, SEVP guidance, and any judicial order that expressly addresses implementation.

What the Final Rule Does Not Require

Several points deserve particular clarity.

1. The Final Rule does not create a general two-year admission cap based on nationality, country overstay rates, or diplomatic cooperation. DHS expressly states that such a provision does not appear in either the proposed rule or the Final Rule.
2. The four-year period is a maximum admission period, not four years of guaranteed OPT or STEM OPT employment.
3. A pending Form I-539 does not automatically authorize new post-completion OPT employment.
4. Form I-765 approval does not, outside the applicable transition or travel framework, eliminate the need for the required fixed period of F-1 admission.
5. Premium processing for affected Form I-539 applicants is not guaranteed by this Final Rule.
6. DHS has not promised to extend the March 18, 2027 transition deadline.
7. A Form I-539 denial still cannot be appealed, although the applicant may seek reopening or reconsideration.

Practical Risk Management Before September 15, 2026

Students, schools, and employers should not wait for the first problem case to create a compliance system.

Students should:

1. Download and retain every Form I-94.
2. Compare the I-94 date with the Form I-20 program end date and EAD expiration.
3. Determine whether the transition rules apply.
4. Begin preparing Forms I-539 and I-765 as early as the applicable rules allow.
5. Confirm that USCIS accepts both filings and issues both receipt notices.
6. Preserve evidence of status maintenance, authorized employment, financial support, and every SEVIS update.
7. Obtain individualized advice before international travel.
8. Avoid committing to a post-completion employment start date that assumes expedited adjudication.

Universities should:

1. Identify every student admitted for D/S who will remain enrolled or employed on September 15, 2026.
2. Record the earlier applicable transition date and the November 14, 2030 outside date.
3. Build workflows for reviewing Form I-539 alongside Form I-765.
4. Train DSOs to distinguish authorized stay from employment authorization.
5. Create escalation procedures for rejected filings, RFEs, denials, and mismatched USCIS and SEVIS records.
6. Update OPT workshops, websites, handbooks, and student communications.
7. Monitor Federal Register notices for any extension beyond March 18, 2027.

Employers should:

1. Track EAD validity separately from the employee’s Form I-94.
2. Coordinate with the student and immigration counsel before the anticipated OPT start date.
3. Do not treat a Form I-539 receipt as proof of employment authorization.
4. Update Form I-9 procedures for OPT, STEM OPT, cap-gap, and transition cases.
5. Create contingency plans for a delayed employment start.
6. Avoid asking a DSO to make legal conclusions outside the DSO’s institutional role.

Conclusion

The principal risk created by the Final Rule does not arise from any single deadline. It arises from the interaction of multiple systems that must work together: Form I-539, Form I-765, SEVIS, Form I-20, Form I-94, the EAD, CBP admission, USCIS adjudication, and employer verification.

DHS predicts that it will have time to adjust before the largest filing surge arrives in approximately four years. It promises guidance, system updates, training, and coordinated adjudication. It also acknowledges existing backlogs, declines to guarantee processing times, and does not provide a universal premium-processing solution.

For students and employers, the practical lesson is direct: file early, verify every receipt, separate authorized stay from work authorization, and do not build an employment plan around an assumed processing time.

For universities, the Final Rule transforms immigration advising into a continuing case-management function. DSOs will need systems that track not only SEVIS and academic deadlines, but also USCIS filings, receipt notices, EADs, Forms I-94, travel, and employment-verification consequences.

For courts, the Final Rule may present questions involving statutory authority, independent judicial interpretation after Loper Bright, reasoned decision-making, reliance interests, procedural protections, retroactivity, and severability. The outcome of any future challenge will depend on the claims presented, the administrative record, and the relief a court finds appropriate.

About Zneimer & Zneimer P.C.

Zneimer & Zneimer P.C. is a Chicago immigration and litigation law firm representing students, universities, physicians, hospitals, employers, professionals, businesses, and families throughout the United States. Our Chicago immigration lawyers advise clients on F-1 status, post-completion OPT, STEM OPT, Forms I-539 and I-765, H-1B petitions, cap-gap protection, Form I-9 compliance, administrative motions, and federal immigration litigation.