[Federal Register Volume 81, Number 38 (Friday, February 26, 2016)]
[Notices]
[Pages 9885-9887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04116]
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DEPARTMENT OF LABOR
Employment and Training Administration
Labor Certification Process for the Temporary Employment of H-2A
and H-2B Aliens in the United States: 2016 Allowable 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 (Department or DOL) is issuing this Notice to
announce
[[Page 9886]]
(1) the allowable charges for 2016 that employers seeking H-2A workers
in occupations other than range herding 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
2016 under the H-2A and H-2B programs. The Notice also includes a
reminder regarding employers' obligations with respect to overnight
lodging costs as part of required subsistence.
DATES: This notice is effective on February 26, 2016.
FOR FURTHER INFORMATION CONTACT: William W. Thompson, II, Acting
Administrator, Office of Foreign Labor Certification (OFLC), U.S.
Department of Labor, Ste. 12-200, 200 Constitution Avenue NW.,
Washington, DC 20210. Telephone: 202-513-7350 (this is not a toll-free
number).
SUPPLEMENTARY INFORMATION: The United States (U.S.) Citizenship and
Immigration Services (USCIS) 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 from the DOL an H-2A or H-2B labor certification. Both the H-
2A and H-2B labor certifications provide that: (1) There are not
sufficient U.S. workers who are qualified and who will be available 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 20 CFR 655.1(a) (H-2B); 20 CFR 655.100 (H-
2A).
Allowable Meal Charge
Among the minimum benefits and working conditions that the
Department requires employers to offer their U.S. and H-2A workers who
are not engaged in range occupations are three meals a day or free and
convenient cooking and kitchen facilities so workers may prepare their
own meals.\1\ 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.
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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. 20 CFR 655.210(e).
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The Department establishes 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. 20 CFR 655.173(a). This methodology allows for annual
adjustments of the previous year's maximum allowable charge based upon
updated Consumer Price Index (CPI) data. Id. 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).\2\ Id. 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).
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\2\ Consumer Price Index--December 2015, published January 20,
2016 at http://data.bls.gov/pdq/SurveyOutputServlet.
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The percentage change in the CPI-U for Food between December 2014
and December 2015 was 1.9 percent. Accordingly, the maximum allowable
charge under 20 CFR 655.122(g) shall be no more than $12.09 per day,
unless the OFLC Certifying Officer approves a higher charge as
authorized under 20 CFR 655.173(b).
Reimbursement for Daily Travel Subsistence
The H-2A regulations (20 CFR 655.122(h)(1)) and the H-2B
regulations (20 CFR 655.20(j)(1)(i)) 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). The minimum daily travel subsistence expense for meals may
in no event be less than the amount 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 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 increases to $51.00 per day for 2016.\3\ 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,
up to 75 percent of the maximum reimbursement for meals, or $38.25,
based on 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 as specified above.
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\3\ Maximum Per Diem Rates for the Continental United States
(CONUS), 80 FR 52753 (September 1, 2015); see also www.gsa.gov/perdiem.
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The term ``subsistence'' includes both meals and lodging during
travel to and from the worksite. Therefore, an H-2A 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, and upon the worker completing the contract
or being dismissed without cause, return costs. Similarly, an H-2B
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 job order period of employment, and upon the worker
completing the job order period of employment or being dismissed early,
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.
Employers are required 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 or is dismissed as described above,
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 worksite.
[[Page 9887]]
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.
Portia Wu,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2016-04116 Filed 2-25-16; 8:45 am]
BILLING CODE 4510-FP-P