USCIS Issues Guidance on H-2A Visas for Dairy Operations: What It Does (and Doesn’t) Change

On June 17, 2026, USCIS issued Policy Memorandum PM-602-0200, titled “Guidance on Temporary or Seasonal Need for H-2A Petitions for Dairying.” The memo has generated significant coverage in agricultural and immigration circles, with some outlets framing it as a new pathway for dairy employers. That framing overstates what the memo actually does.

For dairy employers and the practitioners who represent them, here is a clear-eyed read on what changed, what did not, and what this memo means in practice.

What the Memo Actually Does

The memo does not create a new visa category or lower the bar for dairy employers seeking H-2A workers. What it does is fill a gap in written guidance that has existed for years.

Prior to this memo, USCIS had no formal policy document specifically addressing dairy operations in the H-2A context. The closest equivalent was PM-602-0176.1, issued in 2020, which addressed range sheep and goat herding. Dairy employers were filing under the same general H-2A framework as everyone else, with varying results depending on the adjudicator reviewing the petition. This memo standardizes that review.

In practical terms, this gives USCIS officers a formal policy anchor to approve qualifying dairy petitions without having to chart their own course. It also gives practitioners a direct citation to use when responding to Notices of Deficiency or denials that treated dairy as categorically ineligible for H-2A.

The Legal Foundation: Why Dairy Was Always Eligible

One of the most useful aspects of the memo is its straightforward statutory analysis. Congress expressly included “dairying” and work on a “dairy” in the definition of “agricultural labor or services” eligible for H-2A, through both the Internal Revenue Code and the Fair Labor Standards Act definitions incorporated into the Immigration and Nationality Act. The memo references these definitions directly and makes clear that dairying has never been categorically excluded from H-2A.

The more contested question has always been whether dairy work qualifies as “temporary or seasonal” given that cows require milking year-round. The memo addresses this directly.

The Temporary or Seasonal Standard

This is the part of the memo that matters most, both for employers hoping to use H-2A for dairy workers and for practitioners advising them.

The standard is the same as it has always been: the employer must demonstrate that its need for the position is temporary or seasonal. Critically, the memo reaffirms on page 5 that “the occupation or the job itself does not determine the temporary or seasonal nature of an agricultural position; the employer’s need for the duties to be performed is decisive.”

That language draws directly from a 1987 Department of Justice Office of Legal Counsel opinion (Temp. Workers, 11 U.S. Op. Off. Legal Counsel 39, 41-42 (1987)), which concluded that “the nature of the underlying job and, in particular, whether the underlying job itself can be described as permanent or temporary, is irrelevant.” What matters is whether the employer’s need is temporary.

For practitioners, this is the cite you want when an officer issues an RFE suggesting that year-round milking makes the position ineligible. The memo now incorporates that OLC opinion directly into USCIS policy, and the language is unambiguous.

What This Means for Dairy Employers

Certain dairy operations have been successfully accessing H-2A for years, particularly those that could document distinct seasonal needs. The memo validates that approach. It also provides two specific examples of how dairy employers may be able to establish temporary or seasonal need:

Operations with distinct calving or breeding seasons. Dairy cows are typically milked for approximately 10 months after calving before being dried off for two months prior to the next calving cycle. For dairies that implement distinct annual breeding seasons, this natural cycle can support separate H-2A petitions tied to each calving season, each lasting up to 10 months.

Operations without distinct breeding seasons. Even where milking is continuous year-round, employers may still qualify if they can show that workers perform meaningfully different duties during different seasons. While milking may remain constant, other tasks performed by dairy herdsmen, such as feeding protocols, reproductive management, or calf care, can change significantly between seasons. Separate petitions supported by that evidence may still be approvable.

Neither of these pathways is new. What the memo does is confirm that USCIS will evaluate them under the same framework applied to all other H-2A petitions.

The Warning Buried in the Memo

The coverage of this memo has focused heavily on access. Less attention has been paid to the cautionary language, and dairy employers considering H-2A should read it carefully.

The memo makes clear that consecutive, back-to-back H-2A petitions covering the same duties for the same workers, without a meaningful break in employment, will generally be treated as evidence of a permanent rather than temporary need. That, in turn, is grounds for denial, regardless of whether DOL has issued a temporary labor certification for each period.

This matters because USCIS reviews filing history when adjudicating H-2A petitions. An employer who has been filing back-to-back petitions for the same workers performing the same duties is not necessarily in a stronger position under this memo. In some respects, the memo gives adjudicators more structured grounds to deny.

The Takeaway

For dairy employers who have been uncertain whether H-2A was available to them at all, this memo is a useful clarification: yes, it is available, and here is the framework. For employers who have been filing successfully, the memo confirms that their approach was on solid legal ground.

For employers who assumed this memo would open the door to indefinite year-round staffing through H-2A, the memo does not support that reading. The temporary or seasonal need requirement applies with full force, and USCIS has now articulated in writing how it intends to scrutinize petitions that appear to reflect a permanent, ongoing need.

As always in H-2A, the strength of the petition depends on the strength of the underlying documentation. The memo does not change that calculus. It simply gives practitioners and employers a clearer map of the terrain.

Meagan Kirchner is the founder of Kirchner Law PLLC, a Virginia-based immigration law firm specializing in H-2B and employment-based immigration. She has represented employers in temporary worker visa matters for over a decade. This post is for informational purposes only and does not constitute legal advice. For guidance specific to your operation, contact our office.