For decades, America’s dairy producers have been the odd industry out of the H-2A temporary agricultural worker program. While orchards, vegetable growers, nurseries and livestock operations leveraged H-2A to address chronic labor shortages, dairies were effectively left out to pasture — sidelined by United States Citizenship and Immigration Service’s (USCIS) longstanding view that the year-round nature of milking and herd care rendered dairying needs “permanent” rather than “temporary or seasonal.” For an industry that has watched its domestic labor pool shrink year after year, the lack of a viable agricultural visa option has been a persistent and costly gap.
That gap has now narrowed considerably. On June 17, 2026, USCIS issued Policy Memorandum PM-602-0200, “Guidance on Temporary or Seasonal Need for H-2A Petitions for Dairying,” formally clarifying that dairy operations may, in appropriate circumstances, qualify for the H-2A program. The memorandum takes effect immediately and applies to all USCIS adjudicators reviewing H-2A petitions involving dairy work.
For dairy producers — and the immigration practitioners who serve them — this is a long-awaited turning point.
The Statutory Foundation: Congress Already Included Dairying
The new policy is not a regulatory expansion; it is a recognition of what Congress wrote into law nearly four decades ago. As USCIS now expressly acknowledges, Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (INA), as amended by Section 301 of the Immigration Reform and Control Act of 1986 (IRCA), incorporates the definitions of “agricultural labor” under Section 3121(g) of the Internal Revenue Code and “agriculture” under Section 3(f) of the Fair Labor Standards Act — both of which expressly include “dairying” and work performed on a “dairy” within the definition of qualifying H-2A agricultural labor.
In other words, Congress decided long ago dairy work can qualify for H-2A. What was missing was clear adjudicative guidance on how dairy employers could satisfy the additional statutory requirement that the labor be “of a temporary or seasonal nature.”
The Core Holding: Focus on the Employer’s Need, Not the Nature of the Job
The memorandum’s analytical heart will be familiar to seasoned H-2 practitioners: the determination of “temporary need” turns on the employer’s need, not on whether the underlying occupation is theoretically year-round. USCIS expressly relies on the 1987 Department of Justice Office of Legal Counsel opinion (Temporary Workers Under § 301 of the Immigration Reform & Control Act, 11 O.L.C. 39), which held:
“Temporary” work … refers to any job where the employer’s need for the employee is temporary. The nature of the underlying job and, in particular, whether the underlying job itself can be described as permanent or temporary, is irrelevant.
Applying this principle, USCIS now confirms dairying is analytically similar to range sheep and goat herding — both involve year-round care of livestock, yet both can give rise to genuinely temporary or seasonal labor needs depending on the employer’s specific operational cycle. Importantly, the memorandum makes clear that dairying does not require the special procedures (such as range housing or a distinct adverse effect wage rate) that apply to range herding occupations; dairy employers may rely on the standard H-2A process.
How Dairy Employers Can Establish Temporary or Seasonal Need
PM-602-0200 sets out a fact-driven, case-by-case framework. Under the governing regulation, 8 C.F.R. § 214.2(h)(5)(iv)(A):
- Temporary employment is need that “will, except in extraordinary circumstances, last no longer than one year”; and
- Seasonal employment is “tied to a certain time of year by an event or pattern … and requires labor levels far above those necessary for ongoing operations.”
The memorandum identifies several dairy-specific facts that may support a finding of temporary or seasonal need:
- Distinct Calving and Breeding Cycles
USCIS recognizes that dairy cows are typically milked for approximately 10 months after calving before being “dried off” for two months prior to calving again. For dairies that implement distinct breeding seasons, employers may file separate H-2A petitions — of up to 10 months each — for dairy herdsmen tied to each calving cycle. - Seasonally Differentiated Duties
Even dairies without discrete breeding seasons may qualify by showing that herdsmen perform materially different duties at different times of year — for example, pasture-based management in spring/summer versus barn-based care, calf-rearing, or winterization tasks in fall/winter — even though some tasks (like milking) remain constant throughout the year. - Extraordinary Circumstances
A petitioner may also establish a need lasting longer than one year (but not indefinitely) by showing, by a preponderance of the evidence, that extraordinary circumstances exist.
What USCIS Will Be Looking For — and Watching Out For
Consistent with Hispanic Affairs Project v. Acosta, 901 F.3d 378 (D.D.C. 2018), USCIS will continue to scrutinize back-to-back, consecutive H-2A petitions that, taken together, suggest a permanent, year-round need rather than a true temporary or seasonal need. The memorandum identifies several inquiries adjudicators will consider, including:
- Whether successive petitions reflect genuinely different job duties (evaluated by examining the tools used and tasks performed);
- Whether each petition covers distinct temporary work, supported by work contracts, invoices, employee schedules, or evidence that the work recurs on the same cycle each year and includes “more than token gaps” when services are not needed;
- Whether the petitioner is employing different beneficiaries for each distinct period, supported by payroll records, staffing/workload data or employment contracts.
Conversely, the memorandum warns that consecutive petitions for the same dairying position with the same duties spanning more than a year — without an articulated seasonal event/pattern or extraordinary circumstances — will likely draw a Request for Evidence or denial.
The memorandum also reaffirms that USCIS remains the final adjudicator of temporary or seasonal need, and may reach a different conclusion than the Department of Labor’s Temporary Labor Certification (TLC) where “substantial evidence” in the record indicates the need is not temporary or seasonal — for example, where USCIS has information about the employer’s prior filing history that DOL did not have when it issued the TLC.
Practical Takeaways for Dairy Employers
For dairy producers across the country, PM-602-0200 represents a meaningful — but not unlimited — opening. To position your operation for a successful H-2A filing under the new guidance, we recommend the following:
- Map your operational cycle. Document calving and breeding seasons, herd-rotation patterns and any month-by-month variation in workforce demand. Charts comparing labor levels across the calendar year are powerful evidence of seasonality.
- Differentiate job duties by season. Carefully draft job descriptions for the ETA-790 and ETA-9142A that reflect the actual seasonal variation in herdsmen duties — not generic catch-all language.
- Be strategic about consecutive filings. If you anticipate filing back-to-back petitions, ensure each is tied to a distinct, documentable event or pattern, and consider whether separate beneficiary pools strengthen the temporary-need narrative.
- Maintain a clean audit trail. Payroll records, production data, breeding/calving logs, and contemporaneous staffing schedules will all be relevant — both at the DOL and USCIS stages.
- Coordinate with experienced H-2A counsel early. The H-2A timeline is unforgiving (the ETA-9142A must be filed no later than 45 days before the date of need), and the case-by-case nature of the new guidance makes early strategy essential.
A Word of Caution
It bears emphasis that PM-602-0200 is a policy memorandum — guidance to USCIS adjudicators — rather than a regulation. It expressly states it “is not intended to, does not, and may not be relied upon to create any right or benefit … enforceable by law.” Like all policy memoranda, it can be modified or rescinded by a future administration. Dairy employers building their workforce strategy around H-2A should do so with eyes open to that political and regulatory reality, and with contingency planning in mind — particularly given the broader changes ushered in by the H-2 Modernization Final Rule (whistleblower protections, prohibited fees, mandatory and discretionary denial grounds and codified compliance inspections) that now apply across the H-2A and H-2B programs.
How Harris Beach Murtha Can Help
Harris Beach Murtha maintains one of the largest attorney-managed H-2A and H-2B practices in the country, representing farms, agricultural producers, and seasonal employers nationwide. Our Immigration Practice Group, working from our Albany and other offices across New York, Connecticut, Massachusetts, New Jersey, and Washington, D.C., counsels dairy producers and other agricultural employers on every phase of the H-2 process — from temporary need analysis and prevailing wage strategy through DOL certification, USCIS adjudication, consular processing, and post-filing compliance.
If you operate a dairy and would like to evaluate whether the H-2A program is now a viable workforce solution for your operation in light of PM-602-0200, please contact L.J. D’Arrigo at ldarrigo@harrisbeachmurtha.com or any member of our Immigration Practice Group.
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This alert does not purport to be a substitute for advice of counsel on specific matters.
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