H-2A Visa · Agricultural Labor
USCIS Clarifies H-2A Eligibility for Dairy Operations: What Actually Changed
On June 17, 2026, USCIS issued Policy Memorandum PM-602-0200, formally titled "Guidance on Temporary or Seasonal Need for H-2A Petitions for Dairying." The headlines have been dramatic — some outlets are calling it a brand-new pathway that opens H-2A to an entire industry for the first time. That framing significantly overstates what the memo actually does.
Dairy farms were never categorically barred from the H-2A program. What's changed is that USCIS has, for the first time, put in writing exactly how it will evaluate whether a dairy operation's labor need is "temporary or seasonal" under the statute — the same legal standard every H-2A employer has always had to meet. Here's what the guidance actually says, what it doesn't change, and what dairy employers need to do differently starting now.
Why This Guidance Was Needed
The H-2A program allows U.S. agricultural employers to hire foreign workers for labor that is, by statute, temporary or seasonal in nature. That standard works cleanly for crop operations — planting and harvest windows are easy to document. It has always sat awkwardly with dairy, where cows require milking and care 365 days a year, regardless of season.
That tension has fueled a persistent industry talking point: that dairy is categorically ineligible for H-2A. Practitioners who work in this space have consistently pushed back on that framing — dairy was never formally excluded by statute or regulation. The real problem was an absence of written agency guidance. Before this memo, the only closely analogous policy document was PM-602-0176.1, issued in 2020, addressing range sheep and goat herding — a different agricultural sector entirely. Adjudicators handling dairy petitions had no dairy-specific framework to apply, which created unpredictable, inconsistent outcomes.
The dairy industry has pushed for a fix for years. With roughly 130,000 workers employed in U.S. dairy operations, and close to half of that workforce foreign-born, labor access has become one of the sector's most consistently cited operational challenges.
What Actually Changed — and What Didn't
Several immigration practitioners following the memo closely have pushed back on the more sensational coverage, characterizing it less as a policy shift and more as a formal affirmation of standards that technically already existed. The distinction matters for any employer deciding how to act on this guidance.
What the Memo Does
- Confirms dairying is squarely within the statutory definition of "agricultural labor," tied to its inclusion in the Internal Revenue Code and Fair Labor Standards Act definitions Congress incorporated by reference
- Provides USCIS adjudicators a dairy-specific framework for the first time, comparable to the existing sheep and goat herding guidance
- Confirms year-round industry operation does not, by itself, disqualify a specific labor need from being temporary or seasonal
- Offers concrete examples — including calving-season petitions of up to 10 months — illustrating how a qualifying need might be documented
What the Memo Does Not Do
- Create a new visa category or H-2A subtype for dairy
- Lower the evidentiary bar dairy employers must meet
- Guarantee approval for any dairy petition, including those with a pattern of consecutive, overlapping filings
- Exempt dairy employers from standard H-2A obligations: U.S. worker recruitment, prevailing wage requirements, housing standards, and DOL temporary labor certification
The memo is explicit that dairying does not require special procedures apart from those available under existing H-2A statutes and regulations. Employers use the same petition process, the same Department of Labor temporary labor certification (TLC) requirement, and the same prevailing wage and recruitment obligations that apply to every other H-2A employer.
The "Totality of Circumstances" Test
USCIS evaluates every H-2A petition — dairy included — based on the facts presented in that specific petition, along with the petitioner's filing history where relevant. The agency explicitly notes that prior approvals do not bind future adjudications, and a prior denial does not automatically doom a future petition either; each filing is assessed on its own facts.
Critically, the memo clarifies that DOL's temporary labor certification will generally be given weight, but is not controlling, if the petition record contains substantial evidence that the underlying job is not actually temporary or seasonal. USCIS retains independent authority to look behind a TLC at filing history, the specific duties described, work schedules, and whether a sequence of petitions appears to cover what is, in substance, the same ongoing labor need year after year.
How a Dairy Operation Might Qualify
USCIS provided non-exhaustive examples in the memo illustrating circumstances where a dairy operation's need could plausibly be classified as temporary or seasonal. These examples presume underlying compliance with DOL's separate regulatory requirements.
-
Distinct, Defined Calving or Breeding Seasons
Operations with a documented annual breeding or calving cycle may be able to file separate H-2A petitions, each lasting up to roughly 10 months, tied to the labor surge associated with that specific calving season — provided the petition demonstrates the need is genuinely tied to that cyclical event rather than year-round, ongoing operations described differently across filings.
-
Seasonal Production Peaks Tied to a Specific Event
If a dairy operation experiences a documented, recurring production peak connected to a specific time of year or identifiable triggering event — rather than constant, undifferentiated year-round demand — that peak period may itself support a temporary or seasonal labor need separate from the operation's baseline staffing.
-
Consecutively Filed Petitions With Genuinely Different Duties
USCIS has indicated it may consider need in consecutively filed petitions to remain temporary or seasonal so long as each petition involves materially different duties, or — for a claimed seasonal need — can be clearly tied to a specific, identifiable time of year. Petitions that simply restate the same ongoing duties filing after filing are the pattern adjudicators are specifically watching for.
These examples are illustrative, not exhaustive. Employers whose circumstances don't map cleanly onto any of these scenarios may still be able to establish a qualifying temporary or seasonal need — but the burden of demonstrating that, with specific evidentiary support, sits with the petitioner.
The Trade-Off: More Access, More Scrutiny
Several practitioners reviewing the memo have flagged a notable trade-off built into the guidance: while it provides a clearer path for dairy operations to access H-2A, it simultaneously signals USCIS intends to scrutinize dairy petitions more closely than the bare DOL temporary labor certification alone might suggest. USCIS explicitly reserved authority to examine filing history, job duties, work schedules, and whether a sequence of petitions effectively describes the same ongoing labor need stretched across years of consecutive filings.
An employer who files what is, in substance, the same petition — same duties, same role, same justification — year after year without a clear seasonal or cyclical anchor faces real risk that USCIS will view the underlying need as ongoing rather than temporary, regardless of how the most recent petition is worded. The memo gives adjudicators explicit license to look at the pattern across filings, not just the document in front of them.
Industry and Political Reaction
The USDA welcomed the guidance directly, framing it as providing dairy operations additional certainty about when the H-2A program is available to them, while emphasizing that existing protections for U.S. workers remain fully intact. The International Dairy Foods Association issued a statement welcoming the move and urging Congress to build on it with further legislative solutions.
Even within agriculture, the reaction has been measured rather than uniformly celebratory. American Farm Bureau Federation president Zippy Duvall called it an important step while explicitly noting it does not fully resolve the underlying problem, and called for legislation to provide more durable, lasting reform for both farmers and workers.
The guidance has also drawn criticism from immigration restriction advocates, who argue that using agency guidance to effectively extend H-2A access to a year-round industry stretches the statutory definition of "seasonal" beyond what Congress intended, and that this kind of change should go through Congress rather than agency policy memoranda. That critique centers on process and statutory interpretation — it does not allege the memo is unlawful on its face, and no litigation challenging the guidance had been filed as of this writing.
What Dairy Employers Should Do Now
- Review PM-602-0200 in full before filing or amending any H-2A petition for dairy positions
- Map your actual labor need against a genuine seasonal or cyclical pattern — calving season, defined production peaks, or another identifiable, recurring event — rather than describing year-round staffing in seasonal language
- Avoid filing consecutive petitions describing materially identical duties without a clear basis for treating each filing as a distinct, temporary need
- Confirm your Department of Labor temporary labor certification reflects the same temporary or seasonal framing used in your USCIS petition — inconsistency between the two is a documented risk factor
- Maintain full compliance with standard H-2A obligations: U.S. worker recruitment, prevailing wage, and housing requirements remain entirely unchanged by this memo
- Consult immigration counsel before filing, particularly if your operation has a history of consecutive or overlapping H-2A petitions for similar dairy positions
Frequently Asked Questions
Does this mean any dairy farm can now hire H-2A workers automatically?
No. The memo confirms dairy is not categorically barred from H-2A, but every petition is still evaluated individually against the statutory requirement that the specific labor need be temporary or seasonal. An operation with genuinely ongoing, undifferentiated year-round staffing needs is unlikely to qualify simply because this guidance exists. The burden remains on the employer to demonstrate, with specific evidence, that the petitioned-for need fits the temporary or seasonal standard.
Is this a new H-2A visa category for dairy workers?
No. There is no new visa classification and no dairy-specific H-2A subtype. Dairy employers use the same H-2A process, the same forms, and the same Department of Labor temporary labor certification requirement as every other agricultural employer. The memo is internal USCIS adjudication guidance, not a change to the underlying statute or regulations.
Can a dairy operation file the same petition every year and expect approval?
This is exactly the pattern the memo flags for closer scrutiny. USCIS has explicit authority to review an employer's filing history and may find that consecutive petitions describing the same ongoing duties, without a clear seasonal or cyclical distinction, do not satisfy the temporary or seasonal standard — regardless of how any individual petition is worded. Each petition needs its own clear, fact-specific basis.
Does a Department of Labor temporary labor certification guarantee USCIS approval?
No. The memo specifically states that DOL's certification will generally be given weight but is not controlling if the USCIS petition record contains substantial evidence suggesting the underlying job is not actually temporary or seasonal. USCIS retains independent adjudicative authority and can look behind the DOL certification.
Could this guidance be challenged or reversed?
As policy guidance rather than a formal regulation, PM-602-0200 could in principle be modified, rescinded, or clarified further by USCIS without the formal rulemaking process a regulation would require. Some immigration restriction advocates have publicly questioned the guidance's consistency with the statutory definition of seasonal labor, though no litigation had been filed challenging it as of this writing. Employers should treat the guidance as current policy while remaining aware that agency guidance carries less permanence than a codified regulation.
Building or Reviewing an H-2A Petition for Your Dairy Operation?
The new guidance creates a real opportunity for dairy employers, but it comes with documented scrutiny on filing patterns and the temporary-or-seasonal standard. Our attorneys help agricultural employers structure compliant, well-documented H-2A petitions from the start.
Request a Free Evaluation Contact the Firm- USCIS — Policy Memorandum PM-602-0200: Guidance on Temporary or Seasonal Need for H-2A Petitions for Dairying
- USDA — Trump Administration Welcomes Clarification on H-2A Eligibility for Dairy Operations
- Feedstuffs — DHS Clarifies Dairy Industry Eligibility for H-2A Program
- Berry Appleman & Leiden — USCIS Issues Guidance on H-2A Eligibility for Dairy Operations
- Kirchner Immigration — What the H-2A Dairy Memo Does (and Doesn't) Change
- másLabor — Dairy & H-2A: What the New USCIS Memo Really Means
This article is for general informational purposes only and does not constitute legal advice. Agency policy guidance can be modified or rescinded without formal rulemaking. Please consult with a qualified immigration attorney regarding the specific facts of your dairy operation's labor needs before filing an H-2A petition.