[Federal Register Volume 77, Number 45 (Wednesday, March 7, 2012)]
[Notices]
[Pages 13635-13636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5602]


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DEPARTMENT OF LABOR

Employment and Training Administration


Labor Certification Process for the Temporary Employment of 
Aliens in Agriculture in the United States: 2012 Allowable Charges for 
Agricultural Workers' Meals and Travel Subsistence Reimbursement, 
Including Lodging

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice and clarification of policy.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department) is issuing this Notice to announce the 
allowable charges for 2012 that employers seeking H-2A workers may 
charge their workers when the employer provides three meals a day, and 
the maximum meal reimbursement which a worker with receipts may claim. 
The Department is also providing clarification on the issue of 
overnight lodging costs as part of required subsistence, where 
necessary.

DATES: Effective Date: This notice is effective March 7, 2012.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., 
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 
number).

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) and 
(6).

Allowable Meal Charge

    Among the minimum benefits and working conditions which 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.
    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. 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). 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).
    The Department has determined the percentage change between 
December of 2010 and December of 2011 for the CPI-U for Food was 3.7 
percent. Accordingly, the maximum allowable charge under 20 CFR 
655.122(g) shall be no more than $11.13 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 regulations at 20 CFR 655.122(h) establish that the minimum 
daily travel subsistence expense, for which a worker

[[Page 13636]]

is entitled to reimbursement, is equivalent to the employer's daily 
charge for three meals or, if the employer makes no charge, the amount 
permitted under 20 CFR 655.122(g).
    The maximum meals component of the daily travel subsistence expense 
is based upon the standard minimum Continental United States (CONUS) 
per diem rate as stated by the General Services Administration (GSA) at 
41 CFR part 301, Appendix A. The CONUS meal component remains $46.00 
per day. 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 655.122(g) as specified 
above.
    The Department notes that the regulation has consistently used the 
term ``subsistence'' which includes both meals and lodging during 
travel to and from the worksite. 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. 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. If 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 worksite. For further 
information on when the employer is responsible for lodging costs, see 
the FAQ on travel costs at the OFLC Web site at http://www.foreignlaborcert.doleta.gov/.

    Signed in Washington, DC, this 2nd day of March, 2012.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2012-5602 Filed 3-5-12; 11:15 am]
BILLING CODE 4510-FP-P