United States | USCIS issues guidance on H-2A eligibility for dairy operations

The U.S. Department of Agriculture (USDA) announced that U.S. Citizenship and Immigration Services has released updated policy guidance clarifying the eligibility of dairy operations for the H-2A temporary agricultural worker visa program.

Key takeaways:

USCIS issues guidance and clarification for certain H-2A petitions, effective June 17, 2026. USCIS issued a nine-page policy memorandum (PM-602-0200), “Guidance on Temporary or Seasonal Need for H-2A Petitions for Dairying,” on June 17. The guidance states that certain dairy operations may qualify for H-2A classification where employers can demonstrate a temporary or seasonal need, even in an industry traditionally viewed as year-round.

Clarification addresses dairy industry challenges. To help remedy some dairy industry challenges in alignment with current administration policies, the USDA provided the following statement: “The clarification provides additional certainty regarding the circumstances under which dairy operations may access the H-2A program while maintaining existing protections for U.S. workers and ensuring compliance with applicable federal law.”

Guidance emphasizes employer’s need and congressional intent. The updated guidance emphasizes that eligibility for H-2A classification depends on the nature of the employer’s labor need and a consideration of a “totality of circumstances,” and not solely on whether the industry itself operates continuously. Additionally, the guidance notes that “Congress deemed ‘agricultural labor’ as defined in the Internal Revenue Code of 1986 and ‘agriculture’ as defined in the Fair Labor Standards Act (FLSA) eligible for the H-2A program at a minimum.”

Other factors considered in issuing guidance and clarification. The memorandum also addresses other factors supporting the guidance and clarification, including further defining “seasonal” and “temporary,” and an exploration of temporary or seasonal need analysis and scenarios.

Additional information: The memorandum notes it is “intended solely for the training and guidance of USCIS personnel in performing their duties” to help “ensure that petitioners filing H-2A petitions on behalf of dairies are held to the same legal standards with respect to temporariness and seasonality as all other H-2A petitioners while protecting the interests of similarly situated U.S. workers.”

BAL will continue monitoring developments related to H-2A adjudications and agency implementation of this guidance.

This alert has been provided by the BAL U.S. Practice Group.

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