Legal Affairs Counsel’s Corner: Updated H-2A Meals and Travel Subsistence Rates

DOL Issues Annual Update to H-2A Meals and Travel Subsistence Rates

The U.S. Department of Labor’s Office of Foreign Labor Certification (OFLC) has published its 2026 update to allowable meal charges and required travel subsistence reimbursement rates for H-2A workers. The new rates are effective immediately upon publication in the Federal Register and apply to all qualifying travel and meal reimbursements effective April 7, 2026.

Updated 2026 Rates

Effective April 7, 2026, the following new rates apply to H-2A employers’ active and future job opportunities: 

Employers should review the following resources for full details and compliance guidance:

• OFLC Announcement

• Federal Register Notice

• DOL Meals & Subsistence Rates

Important Reminders

Consistent with DOL guidance, these rates apply to required inbound travel reimbursement (once a worker completes 50% of the contract) and outbound travel at the end of the work contract. However, employers should be aware that the Fair Labor Standards Act (FLSA) applies independently of the H-2A regulations and may require earlier reimbursement of certain inbound travel expenses if those costs would effectively bring a worker’s wages below the required minimum wage in the first workweek. 

In practice, this means employers must evaluate reimbursement obligations under both 20 C.F.R. § 655.173 and the FLSA, and comply with whichever standard is more protective of the worker. Employers must still reimburse actual, reasonable travel costs within the applicable caps and may only reimburse lodging expenses when necessary and supported by receipts. Employers should review the following DOL Fact Sheet regarding this topic. 

FAQ: Key Compliance Questions for Employers

• Can employers begin applying the new rates immediately?
  Yes. Because the rates are effective upon publication in the Federal Register, employers may begin applying the updated meal charges and reimbursement limits as of that date.

• Do the new rates apply to current workers and travel already underway?
  Yes. The updated rates apply to reimbursements made after the effective date, including for workers currently in transit or mid-contract. This is one of the few exceptions to DOL’s rule prohibiting post-certification amendments. 

• What is required if workers do not provide receipts?
  Employers must reimburse at least the minimum daily subsistence rate of $16.78 per day when receipts are not provided, consistent with DOL guidance.

• Are employers required to reimburse up to the maximum amounts?
  No. Employers must reimburse actual, reasonable expenses, up to the applicable caps. The maximum rates only apply when supported by receipts and when expenses reach those levels.

• Are employers required to reimburse any method of transportation chosen by the worker?
  No. Employers are only required to reimburse the most reasonable and economical method of transportation between the worker’s home (or place of recruitment) and the place of employment. If a worker chooses a more expensive or indirect method of travel, the employer’s obligation is generally limited to what the reasonable and customary cost would have been for the most economical option. Employers should document standard travel assumptions and maintain consistency in how reimbursements are calculated.

• How does 20 C.F.R. § 655.173 interact with meal charges and the new 2026 rates?
  20 C.F.R. § 655.173 allows employers to either provide meals or charge workers for employer-provided meals up to the maximum allowable daily meal charge, or instead provide a kitchen and permit workers to prepare their own meals. With the 2026 update, that maximum allowable charge is $16.78 per day. Employers may not charge more than this amount unless they obtain prior approval from DOL demonstrating that a higher charge is justified. At the same time, the regulation requires employers to reimburse daily subsistence for travel, using the updated minimum and maximum rates. In practice, this means the same published rate now serves as both the cap on meal charges (absent approval) and the floor for minimum subsistence reimbursements when receipts are not provided.

Best Practice: First Workweek Reimbursements Under FLSA

As a best practice, employers should proactively reimburse inbound transportation, daily subsistence, and visa-related fees during the worker’s first workweek where FLSA implications are at issue. Because these costs are primarily for the benefit of the employer, failure to reimburse them promptly can reduce a worker’s effective wages below the required minimum wage, creating potential liability even if reimbursement would otherwise be due later under the H-2A 50% rule. Many employers mitigate this risk by front-loading or advancing these payments, or by issuing reimbursement in the first payroll cycle, ensuring compliance with both FLSA wage requirements and H-2A program obligations.

Key Action Items

We highly recommend employers immediately begin reviewing their onboarding, payroll, and reimbursement practices to ensure compliance with the updated rates, particularly for any workers currently traveling or arriving in the coming weeks, to the extent they have not already done so. 

DHS/ICE Tightens I-9 Enforcement: Expanded Definition of “Substantive” Violations Raises Employer Risk

The Department of Homeland Security (DHS), through U.S. Immigration and Customs Enforcement (ICE), has recently implemented a significant shift in Form I-9 enforcement policy, fundamentally changing how errors are classified during audits. In March 2026, ICE updated its official inspection guidance signaling a more aggressive enforcement posture and a broader interpretation of violations identified during worksite inspections.

Reclassification of Common Errors as Substantive Violations

Under longstanding guidance, I-9 violations were divided into substantive violations (serious, uncorrectable errors) and technical or procedural violations (generally correctable within a cure period). ICE’s updated guidance reflects a shift away from that framework by expanding the types of errors that may be treated as substantive. Common issues such as missing dates, incomplete document information, or failure to properly complete required sections are now more likely to be classified as substantive violations during an audit.

Reduced Ability to Cure Errors and Increased Penalty Exposure

This change has immediate compliance consequences. Historically, employers were provided a period of time to correct technical errors identified during an inspection. Under the updated approach, many of those same errors may no longer qualify for correction and instead may result in immediate penalties. ICE has also emphasized that maintaining copies of supporting documents does not cure deficiencies on the Form I-9 itself, reinforcing that the form must be properly completed at the time of hire.

Key Takeaways for Employers

For H-2A employers—who often manage high-volume, seasonal hiring—the practical impact is significant. With increased audit activity and a stricter interpretation of violations, employers should prioritize accurate and complete I-9 completion at onboarding and implement regular internal audit protocols. Electronic I-9 recordkeeping systems can provide meaningful compliance advantages, including built-in validation checks, required field enforcement, standardized workflows, and audit trails that reduce the likelihood of common errors. In the current enforcement environment, leveraging technology alongside staff training can materially reduce risk, as mistakes that were once correctable may now carry significant financial penalties.

DOL 2027 Budget Request Signals Structural Changes for OFLC and Increased Processing Capacity

The U.S. Department of Labor (DOL) has released its FY 2027 budget request, outlining significant structural and funding changes for the Office of Foreign Labor Certification (OFLC) that will directly impact H-2A employers. Most notably, the budget proposes to reorganize OFLC into an independent agency within DOL, elevating it from its current position under the Employment and Training Administration (ETA). This shift is intended to streamline operations, improve accountability, and centralize oversight of employment-based immigration programs. 

OFLC Elevated to Independent Agency

Under the proposal, OFLC would operate directly under the Secretary of Labor and absorb additional responsibilities, including certain visa-related functions and broader immigration policy coordination currently handled by other DOL offices. The restructuring is framed as a way to “optimize performance” and create a more efficient, customer-centered system for processing labor certification applications. For H-2A employers, this could signal a more centralized and potentially more consistent adjudication framework going forward.

Increased Funding and Staffing for Case Processing

The budget requests approximately $86.8 million in funding for OFLC in FY 2027, including $63.5 million for federal administration and additional staffing resources. This represents a modest increase from FY 2026 levels and includes an addition of approximately 10 full-time employees to support growing workload demands. DOL specifically notes that these resources are intended to enhance case processing capacity, reduce adjudication times, and improve the agency’s ability to meet statutory deadlines—an important development given continued high demand in the H-2A program. 

Continued Investment in State Workforce Agency (SWA) Functions

The budget also includes over $23 million in funding for State Workforce Agencies (SWAs), which play a critical role in the H-2A process by reviewing job orders, conducting housing inspections, and supporting recruitment of domestic workers. This continued investment underscores DOL’s focus on maintaining the integrity of the labor market test and ensuring compliance at the state level—areas that directly impact application timelines and audit exposure for employers.

Key Takeaways for Employers

For H-2A employers, the FY 2027 budget signals a dual focus on efficiency and oversight. The elevation of OFLC to an independent agency, combined with increased staffing and funding, suggests potential improvements in processing times and operational consistency. At the same time, continued investment in SWA enforcement functions indicates that compliance expectations—particularly around recruitment and housing—will remain high. As a next step, the budget request must be reviewed and approved by Congress through the appropriations process, with final funding levels typically determined before the start of the federal fiscal year on October 1, 2026, though delays or continuing resolutions are common. Employers should expect a more centralized and data-driven certification process moving forward, with both faster adjudications and continued scrutiny of regulatory compliance.

Virginia Enacts Minimum Wage Overhaul Impacting Agricultural Employers While Preserving H-2A Exemption

Virginia lawmakers have enacted two significant pieces of legislation that will reshape minimum wage requirements across the Commonwealth, including for agricultural employers. Together, these laws both increase the statewide minimum wage and expand coverage to agricultural workers—while ultimately preserving the current federal wage framework applicable to H-2A employers.

Statewide Minimum Wage Increase to $15 by 2028 (HB 1 / SB 1)

The first bill establishes a path to increase Virginia’s minimum wage to $15.00 per hour by January 1, 2028. Under HB 1 / SB 1 (2026 Special Session), the wage will rise in scheduled increments beginning on January 1, 2027, which will increase the minimum wage from $12.77/hr. to $13.75/hr., continuing the Commonwealth’s gradual shift toward a higher wage floor. This increase applies broadly across industries, including agricultural employers to the extent their workforce is covered under the Virginia Minimum Wage Act. See HB 1 (2026) (enacted) and SB 1 (2026) (companion legislation), available here.

Expansion of Minimum Wage Coverage to Agricultural Workers (HB 20 / SB 121)

The second bill removes the long-standing exemption for agricultural workers under Virginia law, extending minimum wage protections to domestic farmworkers beginning in 2027. This change is reflected in HB 20 / SB 121 (2026), which amends the Virginia Minimum Wage Act to include agricultural employees who were previously excluded. Importantly, the enacted version preserves the existing framework for H-2A workers and does not newly subject them to Virginia’s minimum wage requirements. See HB 20 (2026), available here, and SB 121 (2026) (companion bill).

Key Takeaways for Employers

For employers, the takeaway is twofold. Domestic agricultural workers in Virginia will increasingly be subject to the state minimum wage, which may create upward pressure on wages and require careful alignment with corresponding employment obligations. At the same time, H-2A wage requirements remain governed by federal law—meaning most employers will continue to rely on the highest applicable wage rate, such as the Adverse Effect Wage Rate (AEWR), without a new, separate obligation under Virginia’s minimum wage framework.