Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Charges for Agricultural Workers' Meals and for Travel Subsistence Reimbursement, Including Lodging, 12410-12411 [2018-05744]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 83, Number 55 (Wednesday, March 21, 2018)]
[Notices]
[Pages 12410-12411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05744]


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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: Annual Update to 
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 (ETA) of the 
Department of Labor (Department or DOL) is issuing this Notice to 
announce the annual update to the allowable charges 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 the 
maximum travel subsistence meal reimbursement that a worker with 
receipts may claim 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: The update is applicable starting March 21, 2018.

FOR FURTHER INFORMATION CONTACT: William W. Thompson, II, 
Administrator, Office of Foreign Labor Certification (OFLC), Box #12-
200, Employment and Training Administration, U.S. Department of Labor, 
200 Constitution Avenue NW, Washington, DC 20210. Telephone number: 
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 1-877-889-
5627.

SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration 
Services (USCIS) 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 DOL an H-2A or H-2B labor certification. See 8 CFR 
214.2(h)(5) and (h)(6). 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. 20 
CFR 655.1(a), 655.100.

Allowable Meal Charge

    H-2A agricultural employers of workers in occupations other than 
range herding must offer and provide each foreign worker and each 
worker in corresponding employment three meals per day or provide the 
workers free and convenient cooking facilities.\1\ 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. 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 foreign 
workers and workers in corresponding employment for providing them with 
three meals per day during employment. Sec.  655.173(a). This 
methodology allows for annual adjustments of the previous year's 
maximum allowable charge based on updated Consumer Price Index for All 
Urban Consumers for Food (CPI-U for Food), not seasonally adjusted. Id. 
The maximum amount employers may charge workers for providing meals is 
adjusted annually by the 12-month percentage change in the CPI-U for 
Food for the prior year (i.e., between December of the year just 
concluded and December of the prior year). 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 
Sec.  655.173(b).
    The percentage change in the CPI-U for Food between December 2016 
and December 2017 was 1.6 percent.\2\ Thus, the annual update to the H-
2A allowable meal charge is calculated by multiplying the current 
allowable meal charge by the 12-month percentage change in the CPI-U 
for Food between December 2016 and December 2017 ($12.07 x 1.016 = 
$12.26). Accordingly, the updated maximum allowable charge under Sec.  
655.122(g) is $12.26 per day, and an employer is not permitted to 
charge a worker more than $12.26 per day unless the OFLC Certifying 
Officer approves a higher charge, as authorized under Sec.  655.173(b).
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    \2\ Consumer Price Index--December 2017, published January 12, 
2018 at https://www.bls.gov/news.release/cpi.nr0.htm.
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Reimbursement for Travel-Related Subsistence

    Under the following conditions, H-2B and H-2A employers must pay 
the reasonable travel and subsistence costs, including the costs of 
meals and lodging, incurred by workers during travel to the worksite 
from the place from which the worker has come to work for the employer 
and from the place of employment to the place from which the worker 
departed to work for the employer, as well as any such costs incurred 
by the worker incident to obtaining a visa authorizing entry to the 
U.S. for the purpose of H-2A or H-2B employment. Sec. Sec.  
655.122(h)(1)-(2), 655.20(j)(1)(i)-(ii). An H-2A employer is 
responsible for providing (either paying in advance or reimbursing a 
worker) the reasonable costs of daily travel-related subsistence 
between the employer's worksite and the place from which the worker has 
come to work for the employer, if the worker completes 50 percent of 
the work contract period, and must provide (or pay at the time of 
departure) the worker's return costs, upon the worker completing the 
contract or being dismissed without cause. 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 has 
come 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 early, return costs.
    The minimum daily travel subsistence expense for meals, for which a 
worker is entitled to reimbursement, must be at least as much as the 
employer would charge for providing the worker with three meals per day 
during employment (if applicable). In no circumstances may the employer 
reimburse workers less than the amount permitted under Sec.  
655.173(a), i.e., the current year's daily meal charge amount of 
$12.26. The maximum amount an employer is required to reimburse workers 
for daily travel-related subsistence, as evidenced with receipts, is 
equal to the standard minimum Continental United States (CONUS) per 
diem rate, as established by the General Services Administration (GSA) 
at 41 CFR part 301, formerly

[[Page 12411]]

published in Appendix A, and now found at https://www.gsa.gov/perdiem. 
The CONUS minimum meals component remains $51.00 per day for 2018.\3\ 
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 limit the meal expense 
reimbursement, with receipts, to 75 percent of the maximum 
reimbursement for meals, or $38.25, based on the GSA per diem schedule. 
If a worker does not provide receipts, the employer is not obligated to 
reimburse above the minimum stated at Sec.  655.173, as specified 
above.
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    \3\ Maximum Per Diem Reimbursement Rates for the Continental 
United States (CONUS), 82 FR 39786 (August 22, 2017); see also 
https://www.gsa.gov/mie.
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    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. The employer also is responsible 
for the costs of return transportation and subsistence, including 
lodging costs where necessary, as described above. 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 be found on the 
OFLC website: https://www.foreignlaborcert.doleta.gov/.

Rosemary Lahasky,
Deputy Assistant Secretary, Employment and Training Administration.
[FR Doc. 2018-05744 Filed 3-20-18; 8:45 am]
 BILLING CODE 4510-FP-P