2023-02755. 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, ...

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 any workers who reside in employer-provided housing 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 9, 2023.

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 [phone] (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 [phone].

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. See8 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 who resides in employer-provided housing three meals per day or free and convenient cooking facilities.^[1] See20 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.

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. See20 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 2021 and December 2022 was 10.4 percent.^[2] Thus, the annual update to the H-2A allowable meal charge is calculated by multiplying the current allowable meal charge ($14.00) by the 12-month percentage change in the CPI-U for Food between December 2021 and December 2022 ($14.00 × 1.104 = $15.46).^[3] Accordingly, the updated maximum allowable charge under 20 CFR 655.122(g) and 655.173 is $15.46 per day, and an employer is not permitted to charge a worker more than $15.46 per day unless the OFLC Certifying Officer approves a higher charge, as authorized under 20 CFR 655.173(b).

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. See20 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, 87 FR 50861 (Aug. 18, 2022). The standard CONUS meals and incidental expenses rate is $59.00 per day for 2023.^[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. Id. 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. See20 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, and H-2B Frequently Asked Question on Job Offers and Employer Obligations, on OFLC's website at https://www.dol.gov/​agencies/​eta/​foreign-labor.

Authority:20 CFR 655.173.

Brent Parton,

Acting Assistant Secretary for Employment and Training, Labor.

Footnotes

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. See20 CFR 655.210(e).

2.   See Consumer Price Index—December 2022, published January 12, 2023, at https://www.bls.gov/​news.release/​archives/​cpi_​01122023.pdf.

3.  In 2022, the maximum allowable charge under 20 CFR 655.122(g) and 655.173 was $14.00 per day. See87 FR 10246 (Feb. 23, 2022).

4.   See id.