The U.S. Department of Homeland Security and the U.S. Department of Labor have clarified that dairy operations may use the H-2A temporary agricultural worker program when they can demonstrate a qualifying temporary or seasonal labor need under existing law. The guidance removes prior ambiguity about whether dairy—historically considered a year-round operation—qualifies for the H-2A visa category, which is limited to temporary or seasonal agricultural work.
What changed
USCIS will evaluate H-2A petitions for dairy-related work under the same statutory and regulatory standards applied to all H-2A employers, with petitions evaluated on a case-by-case basis based on the employer’s demonstrated temporary or seasonal need. The guidance clarifies that dairying is an agricultural activity eligible for consideration under the H-2A program and recognizes that dairy operations may experience temporary or seasonal labor needs that qualify for H-2A employment.
The policy memorandum emanates from DHS and the Department of Labor and is available through USCIS’s policy memoranda page.
Why it matters
For decades, dairy operations were effectively excluded from the H-2A program because USCIS adjudicators questioned whether milk production—typically a year-round operation—satisfied the “temporary or seasonal” labor requirement. This guidance removes that barrier, provided the dairy employer can document a genuine spike in labor demand that is temporary or seasonal in nature (e.g., expansion during peak production seasons, seasonal increase in milking operations, or time-limited projects like facility repairs or expansions).
Practitioners advising dairy clients should note that the case-by-case standard means each H-2A petition will turn on the specific facts: the employer must demonstrate which labor need is temporary or seasonal and provide evidence (production schedules, historical hiring patterns, project timelines) to support that characterization. Employers cannot simply assert that dairy work is “temporary” for all positions; rather, they must isolate particular roles or periods that meet the statutory definition.
Way forward
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Prepare labor certification first. Before filing Form I-129 with USCIS, work with the Department of Labor’s Foreign Labor Certification program to obtain an approved Temporary Labor Certification (TLC) that clearly documents the temporary or seasonal nature of the work.
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Document the seasonal spike. Gather evidence of the employer’s labor demand cycle—production data, prior hiring patterns, seasonal peaks—to support the temporary or seasonal characterization in the I-129 petition.
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Review the policy memo. Contact USCIS or review the full policy memorandum (available through USCIS policy pages) for specific adjudication factors and case-by-case examples.
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Engage early with DOL. The TLC process is critical; the more explicit the temporary or seasonal need is in the DOL determination, the stronger the USCIS I-129 petition will be.
Disclaimer
This article summarizes publicly available information and is not legal advice. Immigration law is complex and fact-intensive; consult a licensed immigration attorney licensed in your jurisdiction before filing any petition or relying on this guidance. Policy and guidance can change without notice. Verify all information against the primary USCIS and Department of Labor materials linked above and in the official press release.