Mark A Ivener, A Law Corporation

Second Circuit Finds New York Law Prohibiting Nonimmigrant Pharmacists Unconstitutional

In Paidi v. Mills, the U.S. Court of Appeals for the Second Circuit found unconstitutional New York Education Law § 6805(1)(6), which stated that only U.S. citizens and legal permanent residents may obtain a pharmacist’s license in New York. (See PDF)

The nonimmigrant plaintiffs had obtained pharmacists’ licenses. Most of them had H-1B temporary worker visas; the remaining plaintiffs had TN (Trade NAFTA) visas. The court noted that although all of the plaintiffs were on temporary visas, they all were legally authorized to reside and work in the United States for more than six years, and in some cases for more than 10 years.

The court noted that the Fourteenth Amendment to the U.S. Constitution provides that states may not deny to any person within its jurisdiction the equal protection of the laws. Under the Fourteenth Amendment, any law that interferes with the exercise of a fundamental right or “operates to the peculiar disadvantage of a suspect class” is to be reviewed under a strict scrutiny standard. The court also pointed out that the Supreme Court has long held that states cannot discriminate based on alienage. There are only two exceptions to the strict scrutiny standard, the court noted. The first exception “allows states to exclude aliens from political and governmental functions as long as the exclusion satisfies a rational basis review.” The second exception acknowledges that people who reside in the United States without authorization may be treated differently in some instances from those who are in the United States legally.

In the instant case, the court noted that New York was proposing that a third exception be established that the Fourteenth Amendment’s protections not apply to nonimmigrant lawfully admitted persons who require a visa to remain in the United States. The court rejected New York’s approach, noting that, among other things, the bedrock of the Supreme Court’s decisions in this area is the fact that “although lawfully admitted aliens and U.S. citizens are not constitutionally distinguishable, aliens constitute a discrete and insular minority because of their limited role in the political process” and are therefore relatively powerless and vulnerable. The court said that the state’s focus on lawfully admitted nonimmigrants’ “transience” was “overly formalistic and wholly unpersuasive,” since the plaintiffs were transient in name only.

The court said it agreed with the district court that there is no evidence that transience among New York pharmacists threatens public health or that nonimmigrant pharmacists, as a class, are considerably more transient than LPR and citizen pharmacists. “Citizenship and Legal Permanent Residency carry no guarantee that a citizen or LPR professional will remain in New York (or the United States for that matter), have funds available in the event of malpractice, or have the necessary skill to perform the task at hand.” Noting that there are other ways to limit the dangers of potentially transient professionals, the court held that the statute unconstitutionally discriminated against the plaintiffs in violation of their Fourteenth Amendment rights.

The court added that the federal power to determine immigration policy is settled, extensive, and predominant. Federal law recognizes that states have a legitimate interest in ensuring that applicants for professional licenses have the necessary educational and experiential qualifications for the positions sought. But “that traditional police power cannot morph into a determination that a certain subclass of immigrants is not qualified for licensure merely because of their immigration status,” the court said. By making immigration status a professional qualification and thereby causing the group of noncitizens and non-LPRs whom Congress intended to allow to practice specialty occupations to be ineligible to do so, the New York statute “has created an obstacle to the accomplishment and execution of the [Immigration and Nationality Act],” the court noted, agreeing with the district court that Congress’s federal laws creating H-1B and TN status were not merely “advisory.”

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.