Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: 2017 Allowable Charges for Agricultural Workers' Meals and for Travel Subsistence Reimbursement, Including Lodging, 17881-17882 [2017-07464]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 82, Number 70 (Thursday, April 13, 2017)]
[Notices]
[Pages 17881-17882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07464]


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DEPARTMENT OF LABOR

Employment and Training Administration


Labor Certification Process for the Temporary Employment of H-2A 
and H-2B Foreign Workers in the United States: 2017 Allowable Charges 
for Agricultural Workers' Meals and for Travel Subsistence 
Reimbursement, Including Lodging

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration of the Department 
of Labor is issuing this Notice to announce: (1) The allowable charges 
for 2017 that employers seeking H-2A workers in occupations other than 
range herding may charge their workers when the employer provides three 
meals a day, and (2) the maximum travel subsistence meal reimbursement 
that a worker with receipts may claim in 2017 under the H-2A and H-2B 
programs. The Notice also includes a reminder regarding employers' 
obligations with respect to overnight lodging costs as part of required 
subsistence.

DATES: Effective on April 13, 2017.

FOR FURTHER INFORMATION CONTACT: William W. Thompson, II, 
Administrator, Office of Foreign Labor Certification (OFLC), U.S. 
Department of Labor, 200 Constitution Avenue NW., Room PPII-12-200, 
Washington, DC 20210. Telephone: 202-513-7350 (this is not a toll-free 
number). Individuals with hearing or speech impairments may access the 
telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: The United States (U.S.) Citizenship and 
Immigration Services of the Department of Homeland Security will not 
approve an employer's petition for the admission of H-2A or H-2B 
nonimmigrant temporary workers in the U.S. unless the petitioner has 
received from the DOL an H-2A or H-2B labor certification. Both the H-
2A and H-2B labor certifications provide that: (1) There are not 
sufficient U.S. workers who are qualified and who will be available to 
perform the labor or services involved in the petition; and (2) the 
employment of the foreign worker(s) in such labor or services will not 
adversely affect the wages and working conditions of workers in the 
U.S. similarly employed. See 20 CFR 655.1(a)(H-2B); 20 CFR 655.100 (H-
2A).

Allowable Meal Charge

    Among the minimum benefits and working conditions that the 
Department requires employers to offer their U.S. and H-2A workers who 
are not engaged in range occupations are three meals a day or free and 
convenient cooking and kitchen facilities so workers may prepare their 
own meals.\1\ See 20 CFR 655.122(g). Where the employer provides the 
meals, the job offer must state the charge, if any, to the worker for 
such meals. Id.
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    \1\ H-2A employers must provide workers engaged in herding or 
the production of livestock on the range meals or food to prepare 
meals without charge or deposit charge. See 20 CFR 655.210(e).
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    The Department establishes the methodology for determining the 
maximum amounts that H-2A agricultural employers may charge their U.S. 
and foreign workers for providing them with three meals per day during 
employment. See 20 CFR 655.173(a). This methodology allows for annual 
adjustments of the previous year's maximum allowable charge based upon 
updated U.S. Consumer Price Index for All Urban Consumers (CPI-U) data 
for Food, not seasonally adjusted. Id. The maximum charge allowed by 20 
CFR 655.122(g) is adjusted by the same percentage as the 12-month 
percent change in the CPI for all Urban Consumers for Food (CPI-U for 
Food).\2\ Id. The OFLC Certifying Officer may also permit an employer 
to charge workers a higher amount for providing them with three meals a 
day, if the higher amount is justified and sufficiently documented by 
the employer, as set forth in 20 CFR 655.173(b).
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    \2\ The 12-month percent change in the CPI-U for Food for 2006 
through 2016 is available through BLS' Web site at https://www.bls.gov/cpi/.
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    The percentage change in the CPI-U for Food between December 2015 
and December 2016 was -0.2 percent.\3\ Accordingly, the maximum 
allowable charge under 20 CFR 655.122(g) shall be no more than $12.07 
per day, unless the OFLC Certifying Officer approves a higher charge as 
authorized under 20 CFR 655.173(b).
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    \3\ In 2016, the maximum allowable charge under 20 CFR 
655.122(g) was $12.09 per day. 81 FR 9885, 9886 (Feb. 26, 2016). As 
a result, the maximum allowable meal charge for 2017 has decreased 
only $.02.
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Reimbursement for Daily Travel Subsistence

    The H-2A regulations (20 CFR 655.122(h)(1)) and the H-2B 
regulations (20 CFR 655.20(j)(1)(i)) establish that the minimum daily 
travel subsistence expense for meals, for which a worker is entitled to 
reimbursement, must be at

[[Page 17882]]

least as much as the employer would charge for providing the worker 
with three meals a day during employment (if applicable). The minimum 
daily travel subsistence expense for meals may in no event be less than 
the amount permitted under Sec.  655.173(a), i.e., the charge annually 
adjusted by the 12-month percentage change in CPI-U for Food.
    The Department bases the maximum meals component of the daily 
travel subsistence expense on the standard minimum Continental United 
States (CONUS) per diem rate as established by the General Services 
Administration (GSA). The CONUS minimum meals component, reported as 
Meals and Incidental Expenses, remains $51.00 per day for 2017.\4\ 
Workers who qualify for travel reimbursement are entitled to 
reimbursement for meals up to the CONUS meal rate when they provide 
receipts. In determining the appropriate amount of reimbursement for 
meals for less than a full day, the employer may provide for meal 
expense reimbursement, with receipts, up to 75 percent of the maximum 
reimbursement for meals, or $38.25, based on the GSA per diem schedule. 
If a worker has no receipts, the employer is not obligated to reimburse 
above the minimum stated at 20 CFR 655.173 as specified above.
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    \4\ See Maximum Per Diem Rates for the Continental United States 
(CONUS), 81 FR 54805 (August 17, 2016); see also https://www.gsa.gov/perdiem.
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    The term ``subsistence'' includes both meals and lodging during 
travel to and from the worksite. Therefore, an H-2A employer is 
responsible for providing (either paying in advance or reimbursing a 
worker) the reasonable costs of transportation and daily subsistence 
between the employer's worksite and the place from which the worker 
comes to work for the employer, if the worker completes 50 percent of 
the work contract period, and upon the worker completing the contract 
or being dismissed without cause, return costs. Similarly, an H-2B 
employer is responsible for providing (either paying in advance or 
reimbursing a worker) the reasonable costs of transportation and daily 
subsistence between the employer's worksite and the place from which 
the worker comes to work for the employer, if the worker completes 50 
percent of the job order period of employment, and upon the worker 
completing the job order period of employment or being dismissed early, 
return costs. In those instances where a worker must travel to obtain a 
visa so that the worker may enter the U.S. to come to work for the 
employer, the employer must pay for the transportation and daily 
subsistence costs of that part of the travel as well.
    Employers are required to assume responsibility for the reasonable 
costs associated with the worker's travel, including transportation, 
food, and, in those instances where it is necessary, lodging. The 
minimum and maximum daily travel meal reimbursement amounts are 
established above. If transportation and lodging are not provided by 
the employer, the amount an employer must pay for transportation and, 
where required, lodging, must be no less than (and is not required to 
be more than) the most economical and reasonable costs. The employer is 
responsible for those costs necessary for the worker to travel to the 
worksite if the worker completes 50 percent of the work contract 
period, but is not responsible for unauthorized detours, and if the 
worker completes the contract or is dismissed as described above, 
return transportation and subsistence costs, including lodging costs 
where necessary. This policy applies equally to instances where the 
worker is traveling within the U.S. to the employer's worksite.
    For further information on when the employer is responsible for 
lodging costs, please see the Department's H-2A Frequently Asked 
Questions on Travel and Daily Subsistence, which may found on the OFLC 
Web site: https://www.foreignlaborcert.doleta.gov/.

Byron Zuidema,
Deputy Assistant Secretary for Employment and Training, Department of 
Labor.
[FR Doc. 2017-07464 Filed 4-12-17; 8:45 am]
 BILLING CODE 4510-FP-P