Dairy operations can use the H-2A guest worker program if they can prove the work they need assistance with is temporary or seasonal in nature, according to June 17 guidance from the Department of Homeland Security and Labor Department.

A DHS policy memo reads that while dairy cows require year-round work, there are temporary and seasonal duties associated with dairying that H-2A workers may be hired to perform.

The memo states statute includes dairying in the definition of “agricultural labor or services” H-2A workers could perform under current law, demonstrating that Congress believed the dairy industry to be eligible for the program. The document also states the more relevant factor in determining eligibility for the H-2A program is whether the job’s nature is truly temporary or seasonal, rather than the kind of agricultural work the H-2A employee would be performing.

Prospective dairy employers would have to show, per current regulations, that their employment needs would generally last no longer than a year or would be tied to a certain time of year by an event or pattern.

DHS also writes dairy employers could file consecutive, back-to-back H-2A petitions, seeking the same or different workers, for subsequent jobs. They’d have to show they either need assistance with demonstrably different duties than the previous job or that they need assistance during a specific, subsequent season.

The memo gives the example of a dairy owner with distinct breeding and calving seasons filing H-2A petitions for dairy herdsmen for each season.

Petitions also may be approved if the employer establishes that H-2A workers would have different duties in the spring & summer than they do in the fall & winter, for example, even if some responsibilities, like milking, remain the same.

Requesting H-2A workers to perform the same dairying position and job duties for a consecutive period, without a meaningful break in employment, would indicate an ongoing permanent need and would generally lead to a petition’s denial, the memo reads.

American Farm Bureau Federation President Zippy Duvall thanked the Trump administration for the guidance expanding H-2A access and called for a more long-term solution.