On the evening of June 17, the U.S. Department of Agriculture released the following announcement:

The U.S. Department of Agriculture today welcomed new guidance from the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor clarifying 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 policy memorandum provides additional clarity regarding how U.S. Citizenship and Immigration Services (USCIS) will evaluate H-2A petitions for dairy-related work. Under the guidance, dairy operations will be subject to 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. It also confirms that employers seeking H-2A workers for dairy-related positions may use existing H-2A procedures and requirements.

For many dairy farmers, labor availability remains a significant challenge. 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.

The Department of Homeland Security’s policy memorandum clarifying its view that H-2A might be available for dairies seems to leave some questions unanswered, particularly whether changes in underlying federal law authorizing the H-2A program may be necessary to provide dairies with access to the program.