On June 17, 2026, United States Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0200 (the Policy Memorandum), a guidance that seeks to help dairy producers participate in the H-2A temporary foreign labor program. This is a significant development for the dairy industry as it speaks to the long-term issue of dairy operations not meeting H-2A eligibility requirements due to the nature of their needs for year-round ag labor. This article will discuss the H-2A program, the new guidance, and how it may impact the dairy industry.
Background
To understand this topic, it is important to first cover what exactly the H-2A program does, why dairy producers have historically been ineligible, and what has changed in light of the Policy Memorandum. The H-2A program was created by Congress in 1986 for the purpose of providing agricultural employers with an alternative source of labor during domestic shortages. It is administered by the United States Department of Labor (DOL). Through the H-2A program, employers experiencing a shortage of domestic labor have the option of hiring nonimmigrant foreign workers as seasonal or temporary workers.
Any employer seeking to participate in the H-2A must satisfy several requirements. First, the employer must demonstrate that there are not enough domestic workers who are “able, willing, qualified, and available to do the temporary work.” This requires the employer to engage in what is known as “positive recruitment” of domestic workers, which itself has certain requirements. The purpose of “positive recruitment” is to ensure that domestic workers are given ample employment opportunities before jobs are filled by foreign workers under the H-2A program In general, an employer must first contact former domestic employees and invite them to return to their job. Second, an employer must use the Office of Foreign Labor Certification’s electronic job registry to publish information about the job. An employer must also contact, “by mail or other effective means,” U.S. workers employed by the employer in the occupation at the place of employment during the previous year and “solicit” their return to the job. Next, an employer must work with the State Workforce Agency and accept referrals of domestic applicants. Any qualified and available applicants referred by the State Workforce Agency or who applied directly to the employer must typically be hired. An employer can reject any U.S. applicants for lawful, job-related reasons. Finally, an employer must create and maintain a “recruitment report” that detail all recruitment activities.
Next, the employer must demonstrate that the positions are of “a temporary or seasonal nature.” According to the DOL, employment is of a seasonal nature when it is tied to a certain time of year by an event or pattern, “usually in relation to the production and/or harvesting of a crop” and requires “labor levels far above those necessary for ongoing operations.” For example, seasonal work could be tied to harvesting or planting cycles for crops. Work of a “temporary” nature is defined as occurring when the employer’s need to fill the position with a temporary worker is for a limited time period of less than one year. This requirement has traditionally been a barrier for dairy producers participation in the H-2A program as they often require year-round labor. Additionally, dairy operations have also failed to qualify as “temporary” work.
Matter of: Grandview Dairy illustrates the issue. There, a dairy producer applied under the H-2A program for labor to assist in operations between January 15, 2009, and December 12, 2009. That application was denied because the job as described was deemed “ a year-round activity, and neither temporary nor seasonal in nature.” Unlike crop operations which see seasonal planting, growing, and harvesting cycles, dairy operations maintain a consistent workload year-round. The producer appealed the denial to an administrative law judge of the DOL. On appeal, the DOL considered only whether the dairy producer established a temporary or seasonal need for H-2A workers. The DOL noted that the employer stated that its need for workers extends over eleven months of the year and that “an ongoing dairy operation will have this same need each and every year.” The DOL stated that employment will not be inherently temporary when it lasts less than 12 months and found that the dairy producer’s application did not “present a need for agricultural labor or services of a temporary or seasonal nature.”
The New Guidance
Policy Memorandum PM-602-0200 was published with the stated purpose of providing guidance “regarding the determination of temporary or seasonal need for H-2A petitions seeking workers for dairying.” It is important to note that the Policy Memorandum is guidance intended “solely for the training and guidance of USCIS personnel in performing their duties” and thus not a regulation or statute. Additionally, the Policy Memorandum stated that it creates no substantive or procedural rights. Thus, this guidance could be retracted or modified in the future without rulemaking or Congressional action. The Policy Memorandum directs all H-2A dairy petitions to be treated “in the same manner of all other H-2A petitions” but does not otherwise change any existing requirements or impose new requirements. Instead, it seeks to clarify the relationship between the “temporary or seasonal nature requirement” and dairy operations. The Policy Memorandum states that “dairy can involve H-2A eligible temporary or seasonal labor, no matter that dairy cows can require milking or other types of work year-round.” The Policy Memorandum compares dairy operations to “range sheep or goat herding” which it states, “can also be eligible for H-2A.”
The Policy Memorandum stated that in enacting the H-2A provisions, Congress “expressly” included “dairying” and work on a “dairy” operation in the definition of “agricultural labor or services” as being H-2A eligible. Here, the Policy Memorandum cites the definitions of “agricultural labor” and “agriculture” as found in the Internal Revenue Code and the Fair Labor Standards Act. Both definitions include “dairy” or “dairying” as forms of agriculture and agricultural labor. Additionally, both definitions were adopted by the H-2A program. According to the Policy Memorandum, this “clearly” demonstrates that Congress concluded that dairy operations “can involve ‘temporary’ or ‘seasonal’ employment needs for purposes of H-2A classification.”
The Policy Memorandum also highlighted a U.S. Department of Justice Office of Legal Counsel (OLC) opinion that the “temporary” standard is met if the employer demonstrated that its need for labor was temporary. According to the OLC, “if an employer makes a bona fide application showing that he needs to fill a job on a temporary basis, the work is “of a temporary or seasonal nature.” Per that opinion, any agricultural job will qualify as temporary for the purposes of H-2A “where the employer needs a worker for a limited period of time, generally of less than one year’s duration.”
Finally, the Policy Memorandum turns to the more practical matters implicated by the new guidance. First, USCIS states that the Policy Memorandum will not “impose new burdens on employers. Instead, dairy producers looking to participate in the program “may rely on existing standard procedures for H-2A workers.” The existing standard referred to here requires two separate determinations. First, the foreign worker must be coming “temporarily” to the United States. Second, the work being performed must be “of a temporary or seasonal nature.” Under this new guidance, dairy operations will now be able to satisfy the second requirement. The Policy Memorandum then goes on to describe the mechanics of the H-2A program and its application process, none of which are new or otherwise altered by the guidance.
Conclusion
Under this new guidance, the conflict between the “temporary” requirement of the H-2A program and dairy producers has seemingly been resolved, at least for the time being. As written, dairy operations are now eligible for the H-2A program. To learn more about recent developments with the H-2A program, click here. To view NALC webinar “Homing in on H-2A: An Overview of the Temporary Agricultural Worker Program”, click here. To view NALC webinar “Understanding the H-2A Temporary Agricultural Guest Worker Program”, click here.