[Federal Register Volume 87, Number 36 (Wednesday, February 23, 2022)]
[Notices]
[Pages 10246-10247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03762]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 these 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: This notice is effective on February 23, 2022.
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 each worker three meals per day or provide the
workers 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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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. 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 2020
and December 2021 was 6.3 percent.\2\ Thus, the annual update to the H-
2A allowable meal charge is calculated by multiplying the current
allowable meal charge ($13.17) by the 12-month percentage change in the
CPI-U for Food between December 2020 and December 2021 ($13.17 x 1.063
= $14.00). Accordingly, the updated maximum allowable charge under 20
CFR 655.122(g) and 655.173 is $14.00 per day, and an employer is not
permitted to charge a worker more than $14.00 per day unless the OFLC
Certifying Officer approves a higher charge, as authorized under 20 CFR
655.173(b).\3\
---------------------------------------------------------------------------
\2\ Consumer Price Index--December 2021, published January 12,
2022, at https://www.bls.gov/news.release/archives/cpi_01122022.pdf.
\3\ In 2021, the maximum allowable charge under 20 CFR
655.122(g) and 655.173 was $13.17 per day. See 86 FR 13756 (Mar. 10,
2021).
---------------------------------------------------------------------------
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 worksite 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 of daily
travel-related subsistence between the employer's
[[Page 10247]]
worksite and the place from which the worker has come to work for the
employer, if the worker completes 50 percent of the work contract
period. The employer must provide (or pay at the time of departure) the
worker's return costs upon the worker completing the contract or being
dismissed without cause. See 20 CFR 655.122(h)(1) and (2).
Similarly, an H-2B 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 has come to work for the employer--
if the worker completes 50 percent of the job order period--and upon
the worker completing the job order period or being dismissed early
(for any reason), return costs as well. See 20 CFR 655.20(j)(1)(i) and
(ii).
The minimum amount of 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 per day during employment (if applicable). Under no circumstances
may the employer reimburse workers less than the amount permitted under
20 CFR 655.173(a) (i.e., the current year's daily meal charge amount of
$14.00). The maximum amount an employer is required to reimburse
workers for daily travel-related 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,
86 FR 45731 (Aug. 16, 2021) (2021 Update). The standard CONUS meals and
incidental expenses rate is $59.00 per day for 2022.\4\ 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 2021 Update, 86 FR at 45731. 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.
---------------------------------------------------------------------------
\4\ See id.
---------------------------------------------------------------------------
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. 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 H-2A Frequently Asked Questions on
Travel and Daily Subsistence, on OFLC's website at https://www.dol.gov/agencies/eta/foreign-labor.
Authority: 20 CFR 655.173.
Angela Hanks,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2022-03762 Filed 2-22-22; 8:45 am]
BILLING CODE 4510-FP-P