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Temporary Agricultural Employment of H-2A Workers in the United States: 2010 Adverse Effect Wage Rates, Allowable Charges for Agricultural Workers' Meals, and Maximum Travel Subsistence Reimbursement

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Employment and Training Administration.




The Department of Labor (Department) is issuing this Notice to announce the new 2010 Adverse Effect Wage Rates (AEWRs) and the 2010 maximum allowable meal and travel subsistence charges applicable to employers seeking to employ H-2A nonimmigrant workers to perform agricultural labor in the United States (U.S.) on a temporary or seasonal basis.


Effective Date: March 15, 2010.

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William L. Carlson, PhD, Administrator, Office of Foreign Labor Certification, 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).

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A. Background

The U.S. Citizenship and Immigration Services of the Department of Homeland Security may 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 temporary labor certification. Approved labor certifications attest 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 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).

To ensure that the two preconditions to certification are met, the Department's H-2A regulations require, among other things, that employers offer and pay their H-2A and U.S. workers the highest of the AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining rate, or the Federal or State minimum wage rate, in effect at the time work is performed, whichever is highest. 20 CFR 655.122(l).

B. Adverse Effect Wage Rates for 2010

The AEWR serves as the floor for the agricultural wage rates in the H-2A program and is designed to prevent the potential wage-depressive impact the agricultural employment of nonimmigrant foreign workers may have on the domestic agricultural workforce.

Since 1953, the Department has computed and published AEWRs for the temporary employment of nonimmigrant foreign workers for agricultural employment under various admission programs. Between 1963 and 1987, the Department applied a variety of methodologies to determine how AEWR should be set. In 1989, the Department promulgated an Interim Final Rule (IFR) reaffirming the AEWR calculation methodology it initially established in the 1987 IFR that promulgated the first H-2A program regulations. 54 FR 28037, Jul. 5, 1989 and 52 FR 20496, Jun. 1, 1987. In the 1989 IFR, the Department retained the methodology that based the AEWRs on the level of actual average hourly agricultural wages for each State, as surveyed by the U.S. Department of Agriculture (USDA). This methodology set the AEWRs in each year for the H-2A program at a level equal to the previous year's annual regional average hourly wage rates for field and livestock workers (combined), as computed by USDA quarterly wage surveys. 54 FR 28037-28039, Jul. 5, 1989. The USDA-based methodology for calculating the AEWRs remained in place until January 17, 2009, the effective date of the Department's Final Rule on the Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, in which the Department adopted a different methodology that set the AEWRs at prevailing wage rates by relying on the Bureau of Labor Statistics Occupational Employment Statistics survey. 73 FR 77110, 77167, Dec. 18, 2008.

However, the Department has now published a Final Rule addressing the Temporary Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884, February 12, 2010 (2010 Final Rule). In the 2010 Final Rule, the Department announced that the H-2A AEWR will once again be based on the USDA data compiled through its Farm Labor Survey (FLS) Reports.

Therefore, unless otherwise provided in 20 CFR part 655, subpart B, the AEWRs applicable to all agricultural employment subject to the 2010 Final Rule (except those occupations for Start Printed Page 7294which special procedures for wages have been established pursuant to 8 U.S.C. 1188 and 20 CFR 655.102) for which temporary H-2A certifications are being sought will be the annual average of combined crop and livestock workers' wages applicable for each State as reported by the USDA FLS reports.

The Department's regulations at 20 CFR 655.120(c) require the Office of Foreign Labor Certification (OFLC) to publish at least once in each calendar year the AEWR for each State as a Notice in the Federal Register. Accordingly, the 2010 AEWRs for agricultural work performed by U.S. and H-2A workers hired pursuant to an H-2A application subject to the 2010 Rule on and/or after the effective date of this Notice are set forth in the table below:

Table—2010 Adverse Effect Wage Rates

State2010 AEWR
New Hampshire10.16
New Jersey9.94
New Mexico9.71
New York10.16
North Carolina9.59
North Dakota10.66
Rhode Island10.16
South Carolina9.11
South Dakota10.66
West Virginia9.71

C. Allowable Meal Charges

The Department's regulations at 20 CFR 655.122(g) require the employer to provide each worker with three meals a day (for which it is permitted to charge the workers) or free and convenient cooking and kitchen facilities. When the employer provides meals to its workers, it must state in the job offer the meal charge, if any, the employer will impose on the workers for the meals provided. The amount of the meal charges, if any, is governed by 20 CFR 655.173.

The 2010 Final Rule at 20 CFR 655.173 sets the maximum allowable amount that an H-2A agricultural employer may charge its U.S. and foreign workers for providing three meals per day. This section of the 2010 Final Rule also provides for annual adjustments of the previous year's allowable charges based upon the 12-month percentage change for the Consumer Price Index for Urban Consumers for Food (CPI-U for Food) between December of the year just concluded and December of the year prior to that.

Under 20 CFR 655.173(a) an H-2A employer may charge workers no more than the maximum amount set forth in that paragraph, unless the employer petitions the Certifying Officer and receives a favorable decision under 20 CFR 655.173(b) to charge a higher amount. The Department's H-2A regulations require the OFLC Administrator to publish a Notice in the Federal Register each calendar year, announcing annual adjustments in allowable meal charges applicable to H-2A employers who provide three meals per day to their U.S. and nonimmigrant foreign workers. The 2009 rates were published in the Federal Register at 74 FR 26016, May 29, 2009.

The Department has determined the percentage change between December of 2008 and December of 2009 for the CPI-U for Food was 1.8 percent. Accordingly, the maximum allowable charge under 20 CFR 655.173 was adjusted using this percentage change, and the new permissible charge for 2010 will be no more than $10.64 per day.

D. Maximum Travel Subsistence Expense

The regulations at 20 CFR 655.122(h) establish that the minimum daily travel subsistence expense, for which a worker 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 655.173. The regulation is silent about the maximum amount to which a qualifying worker is entitled.

The Department based the maximum meals component on the standard Continental United States (CONUS) per diem rate established by the General Services Administration (GSA) and published at 41 CFR part 301, Appendix A. The CONUS meal component is now $46.00 per day.

Workers who qualify for travel reimbursement are entitled to reimbursement up to the CONUS meal rate for related subsistence when they provide receipts. In determining the appropriate amount of subsistence reimbursement, the employer may use the GSA system under which a traveler qualifies for meal expense reimbursement at 75 percent of the subsistence for the first partial day of travel and 75 percent of the subsistence for the last partial day.

If a worker has no receipts, the employer is not obligated to reimburse above the minimum stated at 20 CFR 655.173(a) as specified above.

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Signed in Washington, DC, this 12th day of February 2010.

Jane Oates,

Assistant Secretary, Employment and Training Administration.

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[FR Doc. 2010-3078 Filed 2-17-10; 8:45 am]