[Federal Register Volume 89, Number 30 (Tuesday, February 13, 2024)]

[Notices]

[Pages 10101-10102]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2024-02893]

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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.

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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 workers 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 13, 2024.

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 workers 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.

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\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).

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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.

[[Page 10102]]

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 2022

and December 2023 was 2.7% percent.\2\ Thus, the annual update to the

H-2A allowable meal charge is calculated by multiplying the current

allowable meal charge ($15.46) by the 12-month percentage change in the

CPI-U for Food between December 2022 and December 2023 ($15.46 x 1.027

= $15.88.\3\ Accordingly, the updated maximum allowable charge under 20

CFR 655.122(g) and 655.173 is $15.88 per day, and an employer is not

permitted to charge a worker more than $15.88 per day unless the OFLC

Certifying Officer approves a higher charge, as authorized under 20 CFR

655.173(b).

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\2\ See Consumer Price Index--December 2023, published January

11, 2024, available at https://www.bls.gov/news.release/archives/cpi_01112024.pdf.

\3\ In 2023, the maximum allowable charge under 20 CFR

655.122(g) and 655.173 was $15.46 per day. See 88 FR 8478 (Feb. 9,

2023).

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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 place of employment 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, 88 FR 56629 (Aug. 18, 2023). The

standard CONUS meals and incidental expenses rate is $59.00 per day for

  1. See 88 FR 56629, 56630. 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.

See https://www.gsa.gov/travel/plan-book/per-diem-rates. 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.

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 Meal Charges and Travel

Subsistence, on OFLC's website at https://www.dol.gov/agencies/eta/foreign-labor/wages/meals-travel-subsistence, and H-2B Frequently Asked

Questions on Job Offers and Employer Obligations, on OFLC's website at

https://www.dol.gov/agencies/eta/foreign-labor/faqs/print.

Authority: 20 CFR 655.173.

Brent Parton,

Principal Deputy Assistant Secretary for Employment and Training,

Labor.

[FR Doc. 2024-02893 Filed 2-12-24; 8:45 am]

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