[Federal Register Volume 78, Number 48 (Tuesday, March 12, 2013)]
[Pages 15741-15742]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-05580]



Employment and Training Administration

Labor Certification Process for the Temporary Employment of
Aliens in Agriculture in the United States: 2013 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 2013 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 2013. 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 March 12, 2013.

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

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 655.122(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) \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 2012, published January 16,
2013 at http://data.bls.gov/pdq/SurveyOutputServlet

The Department has determined that the percentage change between
December of 2011 and December of 2012 for the CPI-U for Food was 2.6
percent. Accordingly, the maximum allowable charge under 20 CFR
655.122(g) shall be no more than $11.42 per day, unless the OFLC
Certifying Officer approves a higher charge as authorized under 20 CFR

Reimbursement for Daily Travel Subsistence

The regulations at 20 CFR 655.122(h) 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), but in no event less than the amount
permitted under Sec. 655.173(a), i.e. the charge annually adjusted by
the 12-month percentage change in CPI for all Urban Consumers for food.
The regulation is silent about the maximum amount to which a qualifying
worker is entitled.
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 remains $46.00 per day for 2013.\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), 77 FR 54578 (Sept. 5, 2012); 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, 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 comes to work
for the employer, if the worker completes 50 percent of the work
contract period, and upon the worker completing the contract, 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.

[[Page 15742]]

The Department interprets 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, 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
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 on this 27th day of February, 2013.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2013-05580 Filed 3-11-13; 8:45 am]