Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Monetary Charges for Agricultural Workers' Meals and for Travel Subsistence Reimbursement, Including Lodging, 13756-13757 [2021-04939]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 86, Number 45 (Wednesday, March 10, 2021)]
[Notices]
[Pages 13756-13757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04939]


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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 Monetary Charges for Agricultural Workers' Meals and for 
Travel Subsistence Reimbursement, Including Lodging

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department) is issuing this notice to announce the 
annual updates to allowable monetary charges employers of H-2A workers, 
in occupations other than herding or production of livestock on the 
range, may charge these workers when the employer provides three meals 
per day. This notice also announces the maximum travel subsistence meal 
reimbursement a worker with receipts may claim under the H-2A and H-2B 
programs. Finally, this notice includes a reminder regarding employers' 
obligations with respect to overnight lodging costs as part of required 
subsistence.

DATES: This annual update is effective on March 10, 2021.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
U.S. Department of Labor, N-5311, 200 Constitution Avenue NW, 
Washington, DC 20210, by telephone at 202-693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
the telephone numbers above via TTY/TDD by calling the toll-free 
Federal Information Relay Service at 1 (877) 889-5627 (this is not a 
toll-free number).

SUPPLEMENTARY INFORMATION: The 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 United States unless the petitioner has 
received an H-2A or H-2B labor certification from the Department. The 
labor certification generally provides that: (1) There are not 
sufficient U.S. workers who are able, willing, and qualified and who 
will be available at the time and place needed 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) and 655.100.

Allowable Meal Charge

    H-2A agricultural employers who are employing workers in 
occupations other than herding or production of livestock on the range 
must offer and provide each worker three meals per day or provide the 
workers free and convenient cooking facilities.\1\ See Sec.  
655.122(g). Where the employer provides the meals, the job offer must 
state the charge, if any, to the worker for such meals. See id. The 
amount of meal charges is governed by Sec.  655.173.
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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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    By regulation, the Department has established the methodology for 
determining the maximum amount that H-2A agricultural employers may 
charge workers for providing them with three meals per day. See Sec.  
655.173(a). This methodology allows for annual adjustments of the 
previous year's maximum allowable charge based on

[[Page 13757]]

the updated Consumer Price Index for All Urban Consumers for Food (CPI-
U for Food), not seasonally adjusted. See 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). See id. The Office of Foreign Labor Certification 
(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 2019 
and December 2020 was 3.9 percent.\2\ Thus, the annual update to the H-
2A allowable meal charge is calculated by multiplying the current 
allowable meal charge ($12.68) by the 12-month percentage change in the 
CPI-U for Food between December 2019 and December 2020 ($12.68 x 1.039 
= $13.17). Accordingly, the updated maximum allowable charge under 
Sec. Sec.  655.122(g) and 655.173 is $13.17 per day, and an employer is 
not permitted to charge a worker more than $13.17 per day unless the 
OFLC Certifying Officer approves a higher charge, as authorized under 
Sec.  655.173(b).\3\
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    \2\ Consumer Price Index--December 2020, published January 13, 
2020 at https://www.bls.gov/news.release/archives/cpi_01132021.pdf.
    \3\ In 2020, the maximum allowable charge under 20 CFR 
655.122(g) and 655.173 was $12.68 per day. See 85 FR 16133 (Mar. 20, 
2020).
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Reimbursement for Travel-Related Subsistence

    H-2B and H-2A employers must pay 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 United States for the purpose of H-2A or H-2B 
employment. See Sec. Sec.  655.122(h)(1) and (2) and 655.20(j)(1)(i) 
and (ii).
    Specifically, an H-2A employer is responsible for providing, paying 
in advance, or reimbursing a worker for 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. The employer 
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. See Sec.  655.122(h)(1) and (2).
    Similarly, an H-2B employer is responsible for providing, paying in 
advance, or reimbursing a worker for 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 job order period--and upon 
the worker completing the job order period or being dismissed early 
(for any reason), return costs as well. See Sec.  655.20(j)(1)(i) and 
(ii).
    The minimum amount of 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). Under 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 
$13.17). The maximum amount an employer is required to reimburse 
workers for daily travel-related subsistence, as evidenced with 
receipts, is equal to the standard Continental United States (CONUS) 
per diem rate, as established by the General Services Administration 
(GSA) at 41 CFR part 301, formerly published in Appendix A and now 
found at https://www.gsa.gov/travel/plan-book/per-diem-rates. See 
Maximum Per Diem Reimbursement Rates for the Continental United States, 
85 FR 50025 (Aug. 17, 2020) (2020 Update). The standard CONUS meals and 
incidental expenses rate is $55.00 per day for 2021.\4\ Workers who 
qualify for travel reimbursement are entitled to reimbursement for 
meals up to the standard CONUS meals and incidental expenses 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 $41.25, based on the GSA per 
diem schedule. See 2020 Update, 85 FR at 50025. 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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    \4\ Maximum Per Diem Reimbursement Rates for the Continental 
United States (CONUS), 85 FR 50025 (Aug. 17, 2020); see also https://www.gsa.gov/travel/plan-book/per-diem-rates/mie-breakdown.
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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. These requirements 
apply equally to instances where the worker is traveling within the 
U.S. to the employer's worksite. See Sec. Sec.  655.122(h)(1) and (2) 
and 655.20(j)(1)(i) and (ii).
    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, on OFLC's website at https://www.dol.gov/agencies/eta/foreign-labor.

Suzan G. LeVine,
Principal Deputy Assistant Secretary for Employment and Training, 
Labor.
[FR Doc. 2021-04939 Filed 3-9-21; 8:45 am]
BILLING CODE 4510-FP-P