[Federal Register Volume 84, Number 56 (Friday, March 22, 2019)]
[Notices]
[Pages 10838-10839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05442]


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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 (ETA), Labor.

ACTION: Notice.

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SUMMARY: The United States Department of Labor (DOL) is issuing this 
Notice to announce the annual update to: (1) The allowable charges that 
employers seeking H-2A workers in occupations other than herding or 
production of livestock on the range may charge their workers when the 
employer provides three meals per day; and (2) 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: This notice is applicable on March 22, 2019.

FOR FURTHER INFORMATION CONTACT: Thomas M. Dowd, Deputy Assistant 
Secretary, Employment and Training Administration, U.S. Department of 
Labor, Box PPII 12-200, 200 Constitution Avenue NW, Washington, DC 
20210, 202-513-7350 (this is not a toll-free number) or, for 
individuals with hearing or speech impairments, 1-877-889-5627 (this is 
the TTY toll-free Federal Information Relay Service 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 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 
generally 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) and 655.100.

Allowable Meal Charge

    H-2A agricultural employers of 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. 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 DOL 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 the 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 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 2017 
and December 2018 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 ($12.26) \3\ by the 12-month percentage change in 
the CPI-U for Food between December 2017 and December 2018 ($12.26 x 
1.016 = $12.46). Accordingly, the updated maximum allowable charge 
under Sec. Sec.  655.122(g) and 655.173 is $12.46 per day, and an 
employer is not permitted to charge a worker more than $12.46 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 2018, published January 11, 
2019 at https://www.bls.gov/news.release/archives/cpi_01112019.pdf.
    \3\ In 2018, the maximum allowable charge under 20 CFR 
655.122(g) and 655.173 was $12.26 per day. 83 FR 12410 (Mar. 21, 
2018).

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[[Page 10839]]

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. See Sec. Sec.  
655.122(h)(1)-(2) and 655.20(j)(1)(i)-(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, 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. See Sec.  
655.122(h)(1)-(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. See Sec.  
655.20(j)(1)(i)-(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). 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 
$12.46). 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, 
e.g., Annual Update to Allowable Charges for Agricultural Workers' 
Meals and for Travel Subsistence Reimbursement, Including Lodging, 83 
FR 12410 (Mar. 21, 2018) (2018 Update). The standard CONUS meals and 
incidental expenses rate is $55.00 per day for 2019.\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, e.g., 2018 Update, 83 FR at 12411. 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), 83 FR 42501 (August 22, 2018); 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)-(2) and 
655.20(j)(1)(i)-(ii).
    For further information on when the employer is responsible for 
lodging costs, please see the DOL's H-2A Frequently Asked Questions on 
Travel and Daily Subsistence, which may be found on the OFLC website: 
https://www.foreignlaborcert.doleta.gov/.

Molly E. Conway,
Acting Assistant Secretary, Employment and Training Administration.
[FR Doc. 2019-05442 Filed 3-21-19; 8:45 am]
 BILLING CODE 4510-FN-P