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< Back to current issue of Immigration Daily

[Federal Register: March 1, 2011 (Volume 76, Number 40)]
[Notices]               
[Page 11286-11287]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr11-111]                         

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

DEPARTMENT OF LABOR

Employment and Training Administration

 
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

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice.

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

SUMMARY: 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.

DATES: Effective Date: March 1, 2011.

FOR FURTHER INFORMATION CONTACT: 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).

SUPPLEMENTARY INFORMATION: 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
------------------------------------------------------------------------
                           State                              2011 AEWRs
------------------------------------------------------------------------
Alabama....................................................        $9.12
Arizona....................................................         9.60
Arkansas...................................................         8.97
California.................................................        10.31
Colorado...................................................        10.48
Connecticut................................................        10.25
Delaware...................................................        10.60
Florida....................................................         9.50
Georgia....................................................         9.12
Hawaii.....................................................        12.01
Idaho......................................................         9.90
Illinois...................................................        10.84
Indiana....................................................        10.84
Iowa.......................................................        11.03
Kansas.....................................................        11.52
Kentucky...................................................         9.48
Louisiana..................................................         8.97
Maine......................................................        10.25
Maryland...................................................        10.60
Massachusetts..............................................        10.25
Michigan...................................................        10.62
Minnesota..................................................        10.62
Mississippi................................................         8.97
Missouri...................................................        11.03
Montana....................................................         9.90
Nebraska...................................................        11.52
Nevada.....................................................        10.48
New Hampshire..............................................        10.25
New Jersey.................................................        10.60
New Mexico.................................................         9.60
New York...................................................        10.25
North Carolina.............................................         9.30
North Dakota...............................................        11.52
Ohio.......................................................        10.84
Oklahoma...................................................         9.65
Oregon.....................................................        10.60
Pennsylvania...............................................        10.60
Rhode Island...............................................        10.25
South Carolina.............................................         9.12
South Dakota...............................................        11.52
Tennessee..................................................         9.48
Texas......................................................         9.65
Utah.......................................................        10.48
Vermont....................................................        10.25
Virginia...................................................         9.30
Washington.................................................        10.60
West Virginia..............................................         9.48
Wisconsin..................................................        10.62
Wyoming....................................................         9.90
------------------------------------------------------------------------

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

[[Page 11287]]

meals 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.

    Signed in Washington, DC this 18th day of February, 2011.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2011-4419 Filed 2-28-11; 8:45 am]
BILLING CODE 4510-FN-P


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