[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