[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]