[Federal Register Volume 88, Number 27 (Thursday, February 9, 2023)]
[Notices]
[Pages 8478-8479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02755]


-----------------------------------------------------------------------

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, Department of Labor.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (DOL) 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 any workers who reside in employer-provided housing 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: These allowable charges become effective February 9, 2023.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5311, 
Washington, DC 20210, telephone (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.

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 U.S. unless the petitioner has received an H-
2A or H-2B labor certification from DOL. The labor certification 
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 8 U.S.C. 1101(a)(15)(H)(ii)(a) and 
(b), 1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5) and (6); 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 who resides in employer-provided 
housing three meals per day or free and convenient cooking 
facilities.\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. See id. The amount of meal charges is governed by 20 CFR 
655.173.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 20 CFR 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. 
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 20 CFR 655.173(b).
    The percentage change in the CPI-U for Food between December 2021 
and

[[Page 8479]]

December 2022 was 10.4 percent.\2\ Thus, the annual update to the H-2A 
allowable meal charge is calculated by multiplying the current 
allowable meal charge ($14.00) by the 12-month percentage change in the 
CPI-U for Food between December 2021 and December 2022 ($14.00 x 1.104 
= $15.46).\3\ Accordingly, the updated maximum allowable charge under 
20 CFR 655.122(g) and 655.173 is $15.46 per day, and an employer is not 
permitted to charge a worker more than $15.46 per day unless the OFLC 
Certifying Officer approves a higher charge, as authorized under 20 CFR 
655.173(b).
---------------------------------------------------------------------------

    \2\ See Consumer Price Index--December 2022, published January 
12, 2023, at https://www.bls.gov/news.release/archives/cpi_01122023.pdf.
    \3\ In 2022, the maximum allowable charge under 20 CFR 
655.122(g) and 655.173 was $14.00 per day. See 87 FR 10246 (Feb. 23, 
2022).
---------------------------------------------------------------------------

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 20 CFR 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 incurred 
by the worker for transportation and daily travel-related subsistence 
from the place from which the worker has come to work for the employer, 
if the worker completes 50 percent of the work contract period. 20 CFR 
655.122(h)(1). In general, the employer must provide (or pay at the 
time of departure) the worker's transportation and daily travel-related 
subsistence from the place of employment to the place from which the 
worker departed to work for the employer upon the worker completing the 
contract or being terminated without cause. 20 CFR 655.122(h)(2).
    Similarly, an H-2B employer is responsible for providing, paying in 
advance, or reimbursing a worker for transportation and daily travel-
related subsistence from the place from which the worker has come to 
work for the employer, if the worker completes 50 percent of the job 
order period. 20 CFR 655.20(j)(1)(i). Upon the worker completing the 
job order period or being dismissed early (for any reason), the 
employer is generally responsible for providing (or paying at the time 
of departure) the worker's cost of return transportation and daily 
travel-related subsistence from the place of employment to the place 
from which the worker departed to work for the employer. 20 CFR 
655.20(j)(1)(ii).
    The amount of the daily subsistence must be at least the amount 
permitted in 20 CFR 655.173(a) (or the higher amount approved under 20 
CFR 655.173(b), if any). The maximum daily amount an employer is 
required to reimburse workers for travel-related lodging and 
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, 87 FR 50861 (Aug. 18, 2022). The 
standard CONUS meals and incidental expenses rate is $59.00 per day for 
2023.\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 $44.25, based 
on the GSA per diem schedule. Id. If a worker does not provide 
receipts, the employer is not obligated to reimburse above the minimum 
stated at 20 CFR 655.173, as specified above.
---------------------------------------------------------------------------

    \4\ See id.
---------------------------------------------------------------------------

    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. or internationally to the employer's worksite. See 20 CFR 
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 DOL's H-2A Frequently Asked Questions on 
Travel and Daily Subsistence, and H-2B Frequently Asked Question on Job 
Offers and Employer Obligations, on OFLC's website at https://www.dol.gov/agencies/eta/foreign-labor.
    Authority: 20 CFR 655.173.

Brent Parton,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2023-02755 Filed 2-8-23; 8:45 am]
BILLING CODE 4510-FP-P