[Federal Register Volume 77, Number 45 (Wednesday, March 7, 2012)]
[Notices]
[Pages 13635-13636]
From the Federal Register Online via the Government Printing 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
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