[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]


-----------------------------------------------------------------------

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 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.
---------------------------------------------------------------------------

    \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.

[[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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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 
2024. 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]
BILLING CODE 4510-FP-P