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< Back to current issue of Immigration Daily

[Federal Register: February 18, 2010 (Volume 75, Number 32)]
[Notices]               
[Page 7293-7294]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18fe10-59]                         

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

DEPARTMENT OF LABOR

Employment and Training Administration

 
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

AGENCY: Employment and Training Administration.

ACTION: Notice.

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

SUMMARY: 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.

DATES: Effective Date: March 15, 2010.

FOR FURTHER INFORMATION CONTACT: 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).

SUPPLEMENTARY INFORMATION:

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

[[Page 7294]]

which 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
------------------------------------------------------------------------
                           State                              2010 AEWR
------------------------------------------------------------------------
Alabama....................................................        $9.11
Arizona....................................................         9.71
Arkansas...................................................         9.10
California.................................................        10.25
Colorado...................................................        10.06
Connecticut................................................        10.16
Delaware...................................................         9.94
Florida....................................................         9.20
Georgia....................................................         9.11
Hawaii.....................................................        11.45
Idaho......................................................         9.90
Illinois...................................................        10.51
Indiana....................................................        10.51
Iowa.......................................................        10.86
Kansas.....................................................        10.66
Kentucky...................................................         9.71
Louisiana..................................................         9.10
Maine......................................................        10.16
Maryland...................................................         9.94
Massachusetts..............................................        10.16
Michigan...................................................        10.57
Minnesota..................................................        10.57
Mississippi................................................         9.10
Missouri...................................................        10.86
Montana....................................................         9.90
Nebraska...................................................        10.66
Nevada.....................................................        10.06
New Hampshire..............................................        10.16
New Jersey.................................................         9.94
New Mexico.................................................         9.71
New York...................................................        10.16
North Carolina.............................................         9.59
North Dakota...............................................        10.66
Ohio.......................................................        10.51
Oklahoma...................................................         9.78
Oregon.....................................................        10.85
Pennsylvania...............................................         9.94
Rhode Island...............................................        10.16
South Carolina.............................................         9.11
South Dakota...............................................        10.66
Tennessee..................................................         9.71
Texas......................................................         9.78
Utah.......................................................        10.06
Vermont....................................................        10.16
Virginia...................................................         9.59
Washington.................................................        10.85
West Virginia..............................................         9.71
Wisconsin..................................................        10.57
Wyoming....................................................         9.90
------------------------------------------------------------------------

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.

    Signed in Washington, DC, this 12th day of February 2010.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2010-3078 Filed 2-17-10; 8:45 am]
BILLING CODE 4510-FP-P




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