Changes in H-2A Eligibility for Dairy Producers
For many years, American dairy producers faced unique challenges, remaining excluded from the H-2A temporary farm worker program. Unlike orchards, vegetable growers, nurseries, and livestock farms that have utilized H-2A to combat continuous labor shortages, dairy farms were often sidelined due to the U.S. Citizenship and Immigration Services (USCIS) long-standing stance. USCIS maintained that the year-round demands of milking and herd care characterized the industry’s needs as “permanent” instead of “temporary or seasonal.” This gap in viable agricultural visa options has become increasingly burdensome, particularly as the domestic workforce continues to decline each year.
New Policy Clarifies H-2A Eligibility for Dairy Farms
Significant developments have recently emerged. On June 17, 2026, USCIS issued Policy Memorandum PM-602-0200, which provides guidance on the eligibility for H-2A petitions in the dairy sector. This memorandum effectively clarifies that under appropriate circumstances, dairy operations can participate in the H-2A program. The immediate effectiveness of this memorandum applies to all adjudicators processing H-2A petitions related to dairy operations.
Legislative Intent Recognized for Dairy Workers
Historically, Congress had intended for dairy labor to qualify for the H-2A program. What had been lacking was comprehensive guidance on how dairy employers could demonstrate compliance with the legal requirement that work be “temporary or seasonal.” The recent memorandum finally sheds light on this critical issue.
Determining Temporary Needs Based on Employer Requirements
A core concept within this memorandum resonates with experienced H-2A practitioners: the assessment of “temporary needs” hinges on the employer’s requirements rather than the nature of the job itself. USCIS reaffirms that a “temporary” position is defined by the employer’s need for workers, irrespective of whether the tasks in question are year-round or seasonal. This pivotal interpretation allows dairy farming to be evaluated similarly to that of sheep and goat farming, both of which can demonstrate genuine temporary or seasonal labor demands, tailored to the specific work cycles of the employer.
Framework for Establishing Temporary or Seasonal Needs in Dairy Operations
Policy Memorandum PM-602-0200 establishes a fact-driven, case-by-case framework for dairy employers. According to 8 CFR § 214.2(h)(5)(iv)(A), temporary employment is defined as work that cannot exceed one year, barring special circumstances. Seasonal employment must align with specific timelines characterized by recurring events or patterns, necessitating labor above the regular operational requirements. Notably, USCIS identifies several dairy-specific factors that may lend credence to establishing a temporary or seasonal need.
Criteria for USCIS Scrutiny and Assessment
In line with the precedent set by Hispanic Affairs Project v. Acosta, USCIS will closely monitor successive H-2A petitions to ensure that they accurately reflect temporary or seasonal needs rather than permanent requirements. The memorandum outlines key inquiries for adjudicators, which include evaluating whether consecutive petitions genuinely reflect distinct job duties, whether individual submissions provide adequate documentation of temporary labor, and whether different beneficiaries were employed at different times of the year. Without clear indications of seasonality or exceptional circumstances, ongoing petitions for the same dairy position beyond one year risk being met with requests for additional evidence or outright denial.
Strategic Guidance for Dairy Producers
For dairy producers, the PM-602-0200 memorandum presents valuable, though not unconditional, opportunities. To strengthen their H-2A applications under this new guidance, dairy employers should meticulously document operational cycles, including calving and breeding seasons, labor fluctuations, and seasonal job descriptions. Moreover, if repeated petitions are necessary, employers should ensure that each application is firmly grounded in distinct, documentable events or patterns, and maintain comprehensive records that substantiate their requests. Engaging with a knowledgeable H-2A attorney early in the process is also crucial, as submissions must be prepared well in advance of labor requirements, particularly given the individualized nature of the recent policy guidance.
Exercise Caution with New Regulations
It is important to recognize that Policy Memorandum PM-602-0200 is a policy directive rather than formal regulation, meaning it can be altered or revoked by future administrations. Dairy employers must remain cognizant of the political and regulatory landscape while developing workforce strategies centered around H-2A applications. They should also prepare for extensive changes brought about by the H-2 Modernization Final Rule, which introduces various new provisions affecting the H-2A program.
