Notice2023-02755
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, Including Lodging
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 9, 2023
Effective
February 9, 2023
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 27 (Thursday, February 9, 2023)</title>
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[Federal Register Volume 88, Number 27 (Thursday, February 9, 2023)]
[Notices]
[Pages 8478-8479]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-02755]
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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.
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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 (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 who resides in employer-provided
housing 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.
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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. See 20 CFR 655.210(e).
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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 2021
and
[[Page 8479]]
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 x 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).
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\2\ See Consumer Price Index--December 2022, published January
12, 2023, at <a href="https://www.bls.gov/news.release/archives/cpi_01122023.pdf">https://www.bls.gov/news.release/archives/cpi_01122023.pdf</a>.
\3\ In 2022, the maximum allowable charge under 20 CFR
655.122(g) and 655.173 was $14.00 per day. See 87 FR 10246 (Feb. 23,
2022).
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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 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 <a href="https://www.gsa.gov/travel/plan-book/per-diem-rates">https://www.gsa.gov/travel/plan-book/per-diem-rates</a>. 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.
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\4\ See id.
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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 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 <a href="https://www.dol.gov/agencies/eta/foreign-labor">https://www.dol.gov/agencies/eta/foreign-labor</a>.
Authority: 20 CFR 655.173.
Brent Parton,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2023-02755 Filed 2-8-23; 8:45 am]
BILLING CODE 4510-FP-P
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</html>Indexed from Federal Register on February 9, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.