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  • News: DOL Notice on H-2A Allowable Charges

    [Federal Register Volume 80, Number 35 (Monday, February 23, 2015)]
    [Notices]
    [Pages 9482-9483]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2015-03596]
    
    
    -----------------------------------------------------------------------
    
    DEPARTMENT OF LABOR
    
    Employment and Training Administration
    
    
    Labor Certification Process for the Temporary Employment of 
    Aliens in Agriculture in the United States: 2015 Allowable Charges for 
    Agricultural Workers' Meals and 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) is issuing this Notice to announce (1) 
    the allowable charges for 2015 that employers seeking H-2A workers 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 2015. The Notice also includes a reminder 
    regarding employers' obligations with respect to overnight lodging 
    costs as part of required subsistence.
    
    DATES: Effective Date: This notice is effective on February 23, 2015.
    
    FOR FURTHER INFORMATION CONTACT: William W. Thompson, Acting 
    Administrator, Office of Foreign Labor Certification (OFLC), U.S. 
    Department of Labor, Room C-4312, 200 Constitution Avenue NW., 
    Washington, DC 20210. Telephone: 202-693-3010 (this is not a toll-free 
    number).
    
    SUPPLEMENTARY INFORMATION: 
        The United States (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 nonimmigrant temporary agricultural 
    workers in the U.S. unless the petitioner has received from the 
    Department an H-2A labor certification. The H-2A 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. 8 U.S.C. 1101(a)(15)(H)(ii)(a), 
    1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5).
    
    Allowable Meal Charge
    
        Among the minimum benefits and working conditions that the 
    Department requires employers to offer their U.S. and H-2A workers are 
    three meals a day or free and convenient cooking and kitchen 
    facilities. 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.
        The Department provides, at 20 CFR 655.173(a), 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. This methodology provides for annual 
    adjustments of the previous year's maximum allowable charge based upon 
    updated Consumer Price Index (CPI) data. The maximum charge allowed by 
    20 CFR 655.173(a) 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).\1\ 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).
    ---------------------------------------------------------------------------
    
        \1\ Consumer Price Index--December 2014, published January 16, 
    2015 at http://data.bls.gov/pdq/SurveyOutputServlet
    ---------------------------------------------------------------------------
    
        The Department has determined that the percentage change between 
    December of 2013 and December of 2014 for the CPI-U for Food was 2.4 
    percent. Accordingly, the maximum an employer is allowed to charge 
    under 20 CFR 655.122(g) shall be no more than $11.86 per day, unless 
    the OFLC Certifying Officer approves a higher charge for a specific 
    employer as authorized under 20 CFR 655.173(b).
    
    Reimbursement for Daily Travel Subsistence
    
        The regulations at 20 CFR 655.122(h) establish that the minimum 
    daily travel subsistence expense for meals, to 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), but in no event less than the amount
    
    [[Page 9483]]
    
    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 determines 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 remains $46.00 per day for 2015.\2\ 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, 
    to 75 percent of the maximum reimbursement for meals of $34.50, as 
    provided for in 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(a) as specified above.
    ---------------------------------------------------------------------------
    
        \2\ Maximum Per Diem Rates for the Continental United States 
    (CONUS), 79 FR 48168 (August. 15, 2014); see also www.gsa.gov/perdiem.
    ---------------------------------------------------------------------------
    
        The term ``subsistence'' includes both meals and lodging during 
    travel to and from the worksite. Therefore, an 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. Upon the worker completing the contract, the employer 
    is obligated to pay the 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.
        As the Department has stated before, we interpret the regulation to 
    require the employer 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 the employer is further responsible for return transportation 
    and subsistence costs, including lodging costs where necessary. This 
    policy also applies to instances where the worker is traveling within 
    the U.S. to the employer's worksite.
        For further information on when the employer is responsible for 
    transportation, lodging and meal 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/.
    
    Portia Wu,
    Assistant Secretary, Employment and Training Administration.
    [FR Doc. 2015-03596 Filed 2-20-15; 8:45 am]
    BILLING CODE 4510-FP-P
    
    
    
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