Corrected H-2A transportation reimbursement examples

Signed letter

Official PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2002/TEGL23-01_Ch1.pdf

CLASSIFICATION
Employment and Training Administration H-2A Program

Advisory System CORRESPONDENCE SYMBOL
U.S. Department of Labor OWS

Washington, D.C. 20210 DATE

August 2, 2002

TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 23-01, Change 1

TO: ALL STATE WORKFORCE AGENCIES
ALL STATE WORKFORCE LIAISONS
ALL WORKER ADJUSTMENT LIAISONS
ALL ONE-STOP CENTER SYSTEM LEADS

FROM: EMILY STOVER DeROCCO
      Assistant Secretary

SUBJECT: Clarification of Transportation Requirements Under the
H-2A Program

1. Purpose. To correct the examples provided in TEGL No. 23-01, (see page 3, Example (ii) and
Example (iv)).

2. Reference. 20 C.F.R. 655.102(b)(5)(i) and (ii), 55 Fed. Reg. 20500, 20507 (June 1, 1987).

3. Background. There have been a number of questions regarding the regulatory provisions

governing the H-2A employer's obligation to reimburse transportation expenses for foreign and
domestic workers.

U.S. workers, and in some cases H-2A workers, may go from a current H-2A employer to a
subsequent employer. When this happens, questions are raised regarding which, if any, employer

has the obligation to pay for (or provide) transportation back to the place from which the worker
was recruited.

Workers have a right to make an informed decision regarding the economic benefits of a
subsequent non-H-2A job and weigh these benefits against the loss of the transportation benefit.
State and regional staff will attempt to assist former workers in obtaining transportation
assistance either voluntarily from employers or through other sources.

RESCISSIONS

EXPIRATION DATE
TEGL NO. 23-01

Continuing

4. Pertinent Regulatory Provisions. The following regulatory provisions apply:

20 C.F.R. 655.102(b) (5) (i) “...the employer shall pay the worker for costs incurred by the
worker for transportation and daily subsistence from the place from which the worker has come
to work for the employer to the place of employment.”

20 C.F.R. 655.102(b) (5) (ii) “Transportation from place of employment. If the worker
completes the work contract period, the employer shall provide or pay for the worker’s
transportation and daily subsistence from the place of employment to the place from which the
worker, disregarding intervening employment, has come to work for the employer or, if the
worker has contracted with a subsequent employer who has not agreed in that contract to provide
or pay for the worker’s transportation and daily subsistence expenses from the employer’s
worksite to such subsequent employer’s worksite, the employer shall provide or pay for such
expenses; unless the worker has contracted for employment with a subsequent employer who, in
that contract, has agreed to pay for the worker’s transportation and daily subsistence expenses
from the employer’s worksite to such subsequent employer’s worksite, the employer is not
required to provide or pay for such expenses.”

20 C.F.R. 655.102(b)(5)(i) and (ii), 55 Fed. Reg. 20500 (June 1, 1987) (Supplemental
Information) “...the employer must offer to pay for (or provide) the worker’s transportation
home, or wherever the worker began the series of jobs culminating at the current place of
employment.... H-2A workers may be authorized to go from “criteria” employment...to other
criteria employment... This effectively places the requirement on the H-2A worker’s final

criteria employer to pay for (or provide) the H-2A worker’s transportation “home.”
(emphasis added)

“U.S. workers, however, may go from “criteria” employment (i.e., where they have H-2A co-
workers in the same agricultural activity) to either criteria or non-criteria employment...The

transportation “home” requirement is assumed by the next criteria employer...” (emphasis
added)

If the U.S. worker’s subsequent employer is a non-criteria employer, ...and unless that
subsequent employer offers to pay for...transportation “home,” or to further employment, it is the
worker’s responsibility to obtain transportation... The transportation “home”
requirement...is not assumed by the non-criteria employer...” (emphasis added)

“If the U.S. worker has no subsequent employer, the current employer must offer to pay for (or
provide) the worker’s transportation home, or wherever the worker began the series of jobs
culminating at the current place of employment.”

5. Policy.

a. In general, the final H-2A employer has responsibility for the trip home when the
contract is completed, but only when there is no subsequent employer.

“Home” is where the worker was originally recruited. However, if subsequent
employment is involved and the worker, whether H-2A or U.S., is referred from one H-2A

employer to a subsequent H-2A employer, the last H-2A employer is responsible for the
transportation home once the “final” contract is completed.

b. When there is a non-H-2A subsequent employer, the worker becomes responsible for
his/her own transportation costs home.

c. When the regulations were written, it was not contemplated that an H-2A worker
could go on to work for an employer in another legal status - - such as H-2B, which has no
transportation requirement. It is ETA’s position that in this case, neither employer has an
obligation under the H-2A regulations to provide transportation home.

Examples (assume contracts are completed):

(i) U.S. worker is recruited in Texas by a Michigan H-2A employer, and the worker then

goes on to work for a Wisconsin H-2A employer. The Wisconsin employer is responsible for the
worker’s transportation back to Texas.

(ii) U.S. worker is recruited in Texas by a Michigan H-2A employer, and the worker then
goes on to work for a New York non-H-2A employer. If the subsequent, New York non-H-2A
employer does not offer to pay for (or provide) the U.S. worker’s transportation from the current
place of employment to the subsequent place of employment, the Michigan H-2A employer is
required to pay for (or provide) such transportation. The transportation home requirement is not

assumed by either employer, and it is the worker’s responsibility to obtain such transportation
from some other source.

(iii) H-2A worker is recruited in Jamaica by a Connecticut H-2A employer. The
H-2A worker then goes to work (after an approved visa status change petition) for another
certified H-2A employer in New York. After completion of the contract, the New York H-2A
employer is responsible for the worker’s transportation home to Jamaica.

(iv) H-2A worker is recruited in Jamaica by a Connecticut H-2A employer. The H-2A
worker then goes to work (after an approved visa status change petition) for a Maine H-2B
forestry employer. If the subsequent Maine H-2B employer does not offer to pay for (or provide)
the worker’s transportation from the current place of employment to the subsequent place of
employment, the Connecticut H-2A employer is required to pay for (or provide) such

transportation. DOL regulations do not require either employer to pay for the worker’s
transportation back to Jamaica.

(v) H-2A worker is recruited in Jamaica by a Connecticut H-2A employer. The H-2A
worker then goes to work (after an approved visa status change petition) in an H-2B job with the

same employer or an entity owned by the same employer. The H-2A employer is required to pay
for (or provide) transportation home for the worker.

Note: This guidance addresses employer responsibility under the H-2A program only. However,
the Immigration and Nationality Act, provides that the subsequent H-2B employer may be
responsible for reasonable costs of return transportation. Specifically, Section 214 (c)(5)(A)
provides that: “In the case of an alien who is provided nonimmigrant status under Sections
101(a)(15)(H)(i)(b) or 101(a)(15)(H)(ii)(b) and who is dismissed from employment by the
employer before the end of the period of authorized admission, the employer shall be liable for
the reasonable costs of return transportation of the alien abroad.”

6. Action Required. State Workforce Agencies are requested to:

a. Inform appropriate state staff of above policy;

b. Inform worker advocates and outreach workers of these provisions (pre-harvest
meetings are one way of disseminating this information); and

c. Work with advocacy groups and the regional-state monitor advocate network in
attempting to provide voluntary transportation reimbursement or other assistance to
workers who might find themselves in a situation where no employer is under an
obligation to pay for the worker’s transportation home.

7. Inquiries. Questions should be directed to Charlene Giles at (202) 693-2950.