[Federal Register Volume 85, Number 55 (Friday, March 20, 2020)]
[Notices]
[Pages 16133-16134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05775]


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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

ACTION: Notice.

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SUMMARY: The U.S. Department of Labor's (DOL) Employment and Training 
Administration (ETA) is issuing this annual notice to announce the 
updated allowable 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. In 
addition, this notice includes a reminder regarding employers' 
obligations with respect to overnight lodging costs as part of required 
subsistence.

APPLICABLE: This notice is effective on March 20, 2020.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Acting Administrator, 
Office of Foreign Labor Certification, Employment and Training 
Administration, U.S. Department of Labor, by telephone 202-513-7350 
(this is not a toll-free number) or, for individuals with hearing or 
speech impairments, TTY 1-877-889-5627 (this is not a toll-free 
number), or by email at [email protected].

SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration 
Services of the U.S. 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). 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, 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 2018 
and December 2019 was 1.8 percent.\2\ Thus,

[[Page 16134]]

the annual update to the H-2A allowable meal charge is calculated by 
multiplying the current allowable meal charge ($12.46) by the 12-month 
percentage change in the CPI-U for Food between December 2018 and 
December 2019 ($12.46 x 1.018 = $12.68). Accordingly, the updated 
maximum allowable charge under Sec. Sec.  655.122(g) and 655.173 is 
$12.68 per day, and an employer is not permitted to charge a worker 
more than $12.68 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 2019, published January 14, 
2020 at https://www.bls.gov/news.release/cpi.nr0.htm.
    \3\ In 2019, the maximum allowable charge under 20 CFR 
655.122(g) and 655.173 was $12.46 per day. 84 FR 10838 (Mar. 22, 
2019).
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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)-(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, 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)-(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). 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 
$12.68). 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 
Annual Update to Allowable Charges for Agricultural Workers' Meals and 
for Travel Subsistence Reimbursement, Including Lodging, 84 FR 10838 
(Mar. 22, 2019) (2019 Update). The standard CONUS meals and incidental 
expenses rate is $55.00 per day for 2020.\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, 2019 Update, 84 FR at 40413. 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), 84 FR 40413 (August 14, 2019); 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 DOL's H-2A Frequently Asked Questions on 
Travel and Daily Subsistence, on OFLC's website at https://www.foreignlaborcert.doleta.gov/.

    Signed:
John Pallasch,
Assistant Secretary for Employment and Training.
[FR Doc. 2020-05775 Filed 3-19-20; 8:45 am]
 BILLING CODE 4510-FP-P