[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\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/.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\4\ See Maximum Per Diem Rates for the Continental United States
(CONUS), 81 FR 54805 (August 17, 2016); see also http://www.gsa.gov/perdiem.
---------------------------------------------------------------------------
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: http://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