[Federal Register Volume 81, Number 38 (Friday, February 26, 2016)]
[Pages 9885-9887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04116]



Employment and Training Administration

Labor Certification Process for the Temporary Employment of H-2A 
and H-2B Aliens in the United States: 2016 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 (ETA) of the 
Department of Labor (Department or DOL) is issuing this Notice to 

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(1) the allowable charges for 2016 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 
2016 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 effective on February 26, 2016.

Administrator, Office of Foreign Labor Certification (OFLC), U.S. 
Department of Labor, Ste. 12-200, 200 Constitution Avenue NW., 
Washington, DC 20210. Telephone: 202-513-7350 (this is not a toll-free 

SUPPLEMENTARY INFORMATION: The United States (U.S.) Citizenship and 
Immigration Services (USCIS) 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-

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\ 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. 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. 20 CFR 655.173(a). This methodology allows for annual 
adjustments of the previous year's maximum allowable charge based upon 
updated Consumer Price Index (CPI) data. 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\ Consumer Price Index--December 2015, published January 20, 
2016 at http://data.bls.gov/pdq/SurveyOutputServlet.

    The percentage change in the CPI-U for Food between December 2014 
and December 2015 was 1.9 percent. Accordingly, the maximum allowable 
charge under 20 CFR 655.122(g) shall be no more than $12.09 per day, 
unless the OFLC Certifying Officer approves a higher charge as 
authorized under 20 CFR 655.173(b).

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 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) at 41 CFR part 301, formerly published in Appendix 
A, and now found at www.gsa.gov/perdiem. The CONUS minimum meals 
component increases to $51.00 per day for 2016.\3\ 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.

    \3\ Maximum Per Diem Rates for the Continental United States 
(CONUS), 80 FR 52753 (September 1, 2015); see also 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.

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    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/.

    Signed in Washington, DC.
Portia Wu,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2016-04116 Filed 2-25-16; 8:45 am]