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Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2011 Adverse Effect Wage Rates, Allowable Charges for Agricultural Workers' Meals, and Maximum Travel Subsistence Reimbursement

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Employment and Training Administration, Department of Labor.




The Employment and Training Administration (ETA) of the Department of Labor (Department) is issuing this Notice to announce: (1) The 2011 Adverse Effect Wage Rates (AEWRs) for employers seeking to employ temporary or seasonal nonimmigrant foreign workers to perform agricultural labor or services (H-2A workers); (2) the allowable maximum amount for 2011 that employers may charge their H-2A workers for providing them with three meals a day; and (3) the maximum travel subsistence reimbursement which a worker with receipts may claim in 2011.


Effective Date: March 1, 2011.

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William L. Carlson, Ph.D., 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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The United States (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 of Labor (Department) an H-2A 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), 1101(a)(15)(H)(ii)(b), 1184(c)(1), and 1188(a); and 8 CFR 214.2(h)(5) and (6).

The Department's regulations for the H-2A program require employers to offer and pay their U.S. and H-2A workers no less than the appropriate hourly AEWR in effect at the time the work is performed. 20 CFR 655.122(l).

A. Adverse Effect Wage Rates for 2011

Employers of H-2A workers must pay the highest of (i) the AEWR, in effect, at the time the work is performed; (ii) the applicable prevailing wage; or (iii) the statutory minimum wage, as specified in the regulations. 20 CFR 655.120(a). Except as otherwise provided in 20 CFR part 655, Subpart B, the region-wide AEWR for all agricultural employment (except those occupations which are exempted under the special procedure provisions of 20 CFR 655.102) for which temporary H-2A certification is being sought is equal to the annual weighted average hourly wage rate for field and livestock workers (combined) for the region as published annually by the United States Department of Agriculture (USDA) based on its quarterly wage survey. Pursuant to 20 CFR 655.120(c), the Administrator of the Office of Foreign Labor Certification must publish USDA field and livestock worker (combined) wage data as AEWRs in a Federal Register Notice. Accordingly, the 2011 AEWRs for agricultural work performed by U.S. and H-2A workers on or after the effective date of this Notice are set forth in the table below:

Table—2011 Adverse Effect Wage Rates

State2011 AEWRs
New Hampshire10.25
New Jersey10.60
New Mexico9.60
New York10.25
North Carolina9.30
North Dakota11.52
Rhode Island10.25
South Carolina9.12
South Dakota11.52
West Virginia9.48

B. Allowable Meal Charges

Among the minimum benefits and working conditions which the Department requires employers to offer their U.S. and H-2A workers are three Start Printed Page 11287meals a day or free and convenient cooking and kitchen facilities. 20 CFR 655.122(g). When the employer provides meals, the job offer must state the charge, if any, to the worker for such meals. 20 CFR 655.122(g).

The Department has published 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 meals. These rules provide for annual adjustments of the previous year's allowable charges based upon Consumer Price Index (CPI) data. 20 CFR 655.173(a).

Each year, the maximum charges allowed by 20 CFR 655.122(g) are adjusted by the same percentage as the 12-month percent change for the CPI for all Urban Consumers for Food (CPI-U for Food). The Department may permit an employer to charge workers no more than the higher maximum amount set forth in 20 CFR 655.173(b), as applicable, for providing them with three meals a day, if justified and sufficiently documented. The H-2A program's regulations require the Department to make the annual adjustments and to publish a Notice in the Federal Register each calendar year, announcing annual adjustments in allowable charges that may be made by agricultural and logging employers for providing three meals daily to their U.S. and foreign workers. The 2010 rates were published in the Federal Register at 75 FR 7293, Feb. 18, 2010.

The Department has determined the percentage change between December of 2009 and December of 2010 for the CPI-U for Food was .8 percent. Accordingly, the maximum allowable charges under 20 CFR 655.122(g) were adjusted using this percentage change, and the new permissible charges for 2011 shall be no more than $10.73 per day, unless the Department has approved a higher charge pursuant to 20 CFR 655.173(b).

C. 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 at least as much as the employer would charge the worker for providing the worker with three meals a day during employment (if applicable), but in no event less than the amount permitted under 20 CFR 655.173(a). 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), 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 per quarter of a 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 18th day of February, 2011.

Jane Oates,

Assistant Secretary, Employment and Training Administration.

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[FR Doc. 2011-4419 Filed 2-28-11; 8:45 am]