New Requirements for Temporary Agricultural Employment of H-2A Workers in the U.S
2010 Adverse Effect Wage Rates, Allowable Charges for Agricultural Workers' Meals, and Maximum Travel Subsistence Reimbursement
USCIS Effective Date: March 15, 2010
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.
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.
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. 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 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. 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 can be found here in a table.
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.
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.
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.
For more information regarding these new 2010 temporary agricultural employment requirements, call The Law Offices of N.M. Gehi for a free consultation. (718)263-5999
SOURCES: * Jane Oates, Assistant Secretary, Employment and Training Administration, FR Doc. 2010-3078 Filed 2-17-10; 8:45 am, BILLING CODE 4510-FP-P; Federal Register: February 18, 2010 (Volume 75, Number 32), Pages 7293-7294, From the Federal Register Online via GPO Access [wais.access.gpo.gov].
USCIS Effective Date: March 15, 2010
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.
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.
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. 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 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. 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 can be found here in a table.
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.
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.
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.
For more information regarding these new 2010 temporary agricultural employment requirements, call The Law Offices of N.M. Gehi for a free consultation. (718)263-5999
SOURCES: * Jane Oates, Assistant Secretary, Employment and Training Administration, FR Doc. 2010-3078 Filed 2-17-10; 8:45 am, BILLING CODE 4510-FP-P; Federal Register: February 18, 2010 (Volume 75, Number 32), Pages 7293-7294, From the Federal Register Online via GPO Access [wais.access.gpo.gov].
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