Dreaming of Immigration Reform on Campus

By:  Leigh Cole
Dinse, Knapp & McAndrew, P.C.
Burlington, Vermont

The results of the 2012 national election raised comprehensive immigration reform to a national priority.  There is consensus among Republicans, Democrats, business organizations, unions and immigration advocates that immigration reform is imperative.  Congress and the Obama Administration are working on an immigration reform proposal and (dare I say it?) it seems likely that a major immigration bill will pass Congress and be signed by the President this year.   “Comprehensive immigration reform” is understood to include measures that will address the scarcity of employment-based visas for skilled, unskilled and professional workers and address the population of illegal aliens who have no prospect of legalization under current law, including “childhood arrivals.”

Of particular importance to educational institutions are the issues of childhood arrivals, immigrant visa backlogs for outstanding professors and researchers, and immigration benefits for same sex spouses.

There are an estimated 1.8 million individuals in the United States who arrived here as children, even as babies and toddlers, through no fault of their own.  Federal law doesn’t prohibit enrolling students without immigration status, but college students and graduates without lawful immigration status often have no way to legalize and become eligible to work in the United States.  This is particularly inhumane if the United States is the only home the person has ever known.  The DREAM Act under consideration in Congress for the past several years would allow childhood arrivals to become lawful residents if they meet eligibility requirements to establish they are productive members of society.  In June 2012, the Obama Administration implemented a version of the DREAM Act provisions through Executive Order, authorizing “deferred action” to protect childhood arrivals from deportation and grant temporary lawful status and employment authorization to qualifying individuals.  At this point it seems assured that any immigration reform legislation adopted this year will protect individuals who qualify as childhood arrivals under whatever definition is included in the bill.   College and universities should welcome this development, which will directly benefit their students and graduates, past, present and future, who are childhood arrivals.

Immigration reform also may benefit colleges and universities in particular by alleviating the very long queue that currently exists for outstanding professors and researchers who are citizens of India and China.  As of April 1, 2013, green cards are being issued to approved outstanding professors and researchers who were sponsored by their employers in September 2004 (citizens of India) and January 2008 (citizens of China), respectively.   These backlogs have direct adverse consequences for academia, because in many cases the professors and researchers are ineligible for important research grants until their green cards are issued, even though their immigration cases were approved on the merits years ago.

Another development in immigration law that would benefit colleges and universities is the extension of immigration benefits to same-sex spouses.  The Defense Of Marriage Act (DOMA), passed in 1996 and signed into law by President Clinton, bars the federal government from recognizing same sex marriages.  Since then, nine states (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington) and the District of Columbia have authorized same-sex marriages.  President Clinton now sees DOMA as unconstitutional.  As reported in the New York Times on February 28, 2013, (“U.S. Asks Justices to Reject California’s Ban on Gay Marriage, N.Y Times, February 29, 2013), the Obama Administration has filed related briefs in two cases pending before the U.S. Supreme Court, arguing in each case that DOMA is unconstitutional as a violation of the Equal Protection Clause.  One case involves California’s Proposition 8 banning same-sex marriage, and the other case is a direct challenge to the constitutionality of DOMA.  U.S. Attorney General Eric Holder issued a statement saying DOMA is “unjust” and “rooted in discrimination” and that striking down DOMA is important not just to those directly affected but “to our nation as a whole”.  In addition, 212 members of Congress (172 Representatives and 40 Senators) filed a brief in the DOMA case urging the Court to strike the ban on same-sex marriage.   So even if the U.S. Supreme Court upholds DOMA, the law could be vulnerable to repeal by Congress.

U.S. immigration law contains special provisions to allow colleges and universities to attract and retain “the best and the brightest” teachers and professionals.  Colleges and universities may sponsor the “most qualified” teachers for permanent residency, and may sponsor specialty occupation workers for H-1B status at any time without regard to the annual numerical limit on H-1Bs (the “H-1B cap”).  But the lack of immigration status for same-sex spouses remains a significant barrier to recruitment and retention of international faculty and professionals at colleges and universities.  It’s painful to explain to international recruits, perhaps as their first introduction to U.S. law, that their same-sex spouse or partner may accompany them as a “visitor” while they work in the United States but can’t qualify for marriage-based status to live and work in the United States like spouses in heterosexual marriages.

Striking or repealing DOMA and enacting immigration reform that includes DREAM provisions and addresses immigrant visa backlogs would be major improvements for colleges and universities.

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Determining How To Count Hours for Adjunct Faculty Under the Affordable Care Act

By: Ted Lewkowicz
Bond, Schoeneck & King, PLLC
Syracuse, New York

Colleges and universities are faced with difficult decisions on how to count the hours of adjunct faculty (“Adjuncts”) when determining whether they are “full-time employees” for purposes of the “employer mandate” provisions (also known as the “pay-or-play” or “employer shared responsibility” provisions) of the Patient Protection and Affordable Care Act (“Act”).  Starting in 2014, the employer mandate provisions of the Act generally will require colleges and universities to offer at least 95 percent of their “full-time employees” an opportunity to enroll in an affordable health plan.  If a college or university fails to satisfy this requirement, it could be exposed to potentially significant penalties.

For purposes of determining full-time employee status, a full-time employee generally means an employee who is actually employed on average at least 30 hours per week.  Determining whether Adjuncts are actually employed on average at least 30 hours per week is proving to be a difficult task for colleges and universities.  The United States Department of Treasury (“Treasury Department”) and the Internal Revenue Service (“IRS”) recently issued guidance on this issue, and that guidance is summarized below.

There have been numerous media reports about certain higher education institutions (e.g., Youngstown State University, Stark State College, the Community College of Allegheny County, and Palm Beach State College) imposing limits on the number of hours that Adjuncts can work in order to avoid having them be subject to the employer mandate.  There are several issues a college or university should consider before taking such an action, and they are described below.

How Are “Hours of Service” Defined in the Proposed Regulations?

Proposed regulations that were recently issued by the Treasury Department and the Internal Revenue Service (“Proposed Regulations”) provide that “hours of service” generally include both: (1) hours paid for service; and (2) all hours for paid time off.  The Proposed Regulations provide detailed requirements on (a) how to compute these hours, and (b) three “equivalency” methods that generally must be used to determine the hours of service for an employee who is not paid on an hourly basis (for a summary of those requirements, please see the memo at http://www.bsk.com/site/files/032013_revised_ememo_higher_ed.pdf ).  The preamble to the Proposed Regulations noted, however, that these three “equivalency” methods may not work well for certain employees, such as Adjuncts, whose compensation may not be based primarily on hours and who may have unusual work schedules.

What Guidance Was Provided About Counting the Hours of Adjuncts?

The Treasury Department and the IRS received numerous comments from educational organizations about how to count hours for Adjuncts for purposes of determining full-time employee status.  Many colleges and universities pay Adjuncts based on the credit hours taught, and do not keep track of the number of hours Adjuncts work outside the classroom on such tasks as preparing for class, student and faculty meetings, reviewing student assignments, and grading.  Suggestions given to the IRS on how to count hours for Adjuncts included:

  • crediting three hours of service per week for each course credit taught by an Adjunct; and
  • comparing the number of course credit hours taught by an Adjunct to the number of course credit hours taught by typical non-Adjunct faculty members working in the same or a similar discipline who are considered full-time employees.

The Proposed Regulations did not incorporate any of the suggestions made for counting hours of Adjuncts.  However, the preamble to the Proposed Regulations said that the Treasury Department and the IRS are continuing to consider, and invite further comment on, how best to determine the full-time status of Adjuncts and certain other employees.  Further guidance on this issue could be issued.

The preamble to the Proposed Regulations provides that until further guidance is issued on Adjuncts, colleges and universities with Adjuncts should use a reasonable method of crediting hours of service for Adjuncts that is consistent with the purposes of the Act.  The Guidance further provides that:

A method of crediting hours would not be reasonable if it took into account only some of an employee’s hours of service with the effect of recharacterizing, as non-fulltime, an employee in a position that traditionally involves more than 30 hours of service per week.  For example, it would not be a reasonable method of crediting hours…in the case of an instructor, such as an adjunct faculty member, to take into account only classroom or other instruction time and not other hours that are necessary to perform the employee’s duties, such as class preparation time.

What Time Periods Apply When Determining Whether An Adjunct Is a Full-Time Employee, and Must Be Given a Chance to Enroll In An Affordable Health Plan? 

The Proposed Regulations include complex requirements about the time periods that will apply when determining whether an ongoing Adjunct will be a full-time employee, and must be given a chance to enroll in an affordable health plan.  Each college or university will need to, among other things:

  • Designate a “Standard Measurement Period” – The designated standard measurement period will be used to determine if an ongoing Adjunct is a full-time employee.
  • Designate a “Stability Period” – The designated stability period will follow the standard measurement period, and the stability period will be used for determining whether a college or university is offering at least 95 percent of its full-time employees the opportunity to enroll in an affordable health plan.
  • Decide Whether There Will Be An “Administrative Period” – A college or a university has the option to designate an administrative period between the end of a standard measurement period and the beginning of the next stability period that can be used for, among other things, determining who is an eligible full-time employee and providing applicable enrollment materials.

The Proposed Regulations have detailed requirements that must be satisfied when setting up these time periods.  An example of how a college or university might designate these periods for a health plan that has a plan year that is a calendar year would be: (a) the first standard measurement period would be November 1, 2012 to October 31, 2013; (b) the first administrative period would be November 1, 2013 to December 31, 2013; and (c) the first stability period would be January 1, 2014 to December 31, 2014.

These time period requirements will vary depending upon, among other things, whether an Adjunct is: (1) an ongoing employee; (2) a new employee; or (3) a rehired employee (for a summary of these time period requirements, please see the memo at  http://www.bsk.com/site/files/032013_revised_ememo_higher_ed.pdf ).

What Are Some of the More Important Issues That Should Be Considered Before Imposing Limits on the Number of Hours That Adjuncts Can Work?

There are numerous issues that should be considered by a college or university before it makes any decision to impose limits on the number of hours that Adjuncts can work in connection with the employer mandate.  Among the more important of these issues are the following:

  • “Anti-Abuse” Rules in the Proposed Regulations – The Proposed Regulations do not expressly preclude a college or university from limiting the hours of Adjuncts, but do have “anti-abuse” rules that could apply if an action is taken for the purpose of avoiding or undermining certain requirements under the Proposed Regulations.
  • Potential ERISA Issue – If the employee benefit requirements of the Employee Retirement Income Security Act (“ERISA”) apply to a college or university (the plans of certain governmental and church-related higher education institutions are exempt from ERISA), decisions regarding the number of hours Adjuncts can work must be carefully structured so that they will not violate the requirements of ERISA.  If, for example, a college or university that is subject to ERISA decides to limit the hours of Adjuncts for the sole purpose of denying them an opportunity to enroll in an affordable health plan, the Adjuncts could, under certain circumstances, try to challenge that action under ERISA.
  • Collective Bargaining Agreement Issues – If Adjuncts are covered by a collective bargaining agreement, that agreement should be reviewed prior to taking any action that would limit the hours of the Adjuncts.
  • Employee Relations Issues – If a college or university is considering reducing the hours of Adjuncts, the impact of any such reduction on the pay of the Adjuncts should be analyzed.  Such a reduction could have an adverse impact on the morale of the Adjuncts, and could make it more difficult to retain certain Adjuncts who may no longer be able to afford to remain employed with the applicable college or university.

What Actions Should Colleges and University Take Now Regarding their Adjuncts?

Colleges and universities should, if they have not already done so, start analyzing the full-time employee status of their Adjuncts.  They will need to, among other things, decide:  (1) what reasonable method of crediting hours of services will be used for Adjuncts; (2) what standard measurement periods to use; (3) what stability periods to use; and (4) whether to use administrative periods.  These decisions will affect how hours of Adjuncts will be computed during 2013, and those computations will then have an impact on which Adjuncts must be given an opportunity to enroll in an affordable health plan in 2014.

The requirements for determining full-time employee status are complex, and will require sufficient “learning” time in order to ensure they are properly implemented.  In addition to the requirements summarized above, there are numerous other requirements under the Act that will also need to be considered.  Given the 2014 effective date of the employer mandate requirements, colleges and university should start preparing now for compliance with those requirements if they want to avoid unexpected, and potentially expensive, surprises next year.