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Federal Appeals Court Strikes Down New York State Law Preventing H-1B Visa Holders and Temporary Workers From Obtaining Pharmacy Licenses

1219484_12178642.jpgThe Second Circuit Court of Appeals in New York, ruling in Dandamudi, et al v. Tisch, et al, 686 F.3d 6 (2nd Cir. 2012), struck down a state law that only allowed citizens and permanent residents to obtain pharmacy licenses in New York. The plaintiffs, nonimmigrant visa holders with work authorizations, alleged violations of the Equal Protection and Supremacy Clauses of the U.S. Constitution. After the district court ruled for the plaintiffs, the state of New York appealed. The Second Circuit ruled that discrimination based on “alienage” is a “suspect class,” and that the New York law did not pass strict scrutiny review.

The plaintiffs were all H-1B visa holders or temporary workers with TN status. They had all been in the United States, with legal work authorization, for at least six years. Twenty-two of the plaintiffs, according to the court, had applied to adjust status to legal permanent resident. Sixteen of those plaintiffs had passed the maximum six-year period allowed on their H-1B visas, and so had obtained Employment Authorization Documents (EADs) allowing them to stay in the U.S. while their applications were pending.

The state of New York had issued limited pharmacy licenses to the plaintiffs under a waiver that previously existed in the pharmacy licensure law. The law, New York Education Law § 6805(1)(6), states that only U.S. citizens and legal permanent residents are eligible for a New York pharmacy license. The waiver for people with nonimmigrant visas expired in 2009, thus invalidating the plaintiffs’ licenses.

The plaintiffs sued various state officials, alleging that the ban on nonimmigrant pharmacy licenses violated the U.S. Constitution’s Equal Protection Clause. They argued further that, because the federal government had granted them authorization to work in the country, the Supremacy Clause prevented the state of New York from denying them licenses. The District Court for the Southern District of New York granted the plaintiffs’ motion for summary judgment in 2010, and the state appealed to the Second Circuit.

New York asked the court to apply rational basis review, the lowest form of review in Equal Protection jurisprudence. It cited cases from other circuits that supposedly declined to extend to nonimmigrant visa holders certain protections given to legal permanent residents. The Second Circuit disagreed, finding that precedent from the U.S. Supreme Court applied the Fourteenth Amendment’s protection to all immigrants. It cited Graham v. Richardson, 403 U.S. 365 (1971), in which the Supreme Court struck down laws in Arizona and Pennsylvania that restricted immigrants from receiving public assistance. An earlier case, Takahashi v. Fish and Game Commission, 334 U.S. 410 (1948), struck down a California law that prevented immigrants who were “ineligible for citizenship” from obtaining fishing licenses from the state. The Second Circuit ruled that New York’s law had the same impermissible goal as these other state laws, and that people who are admitted to work in the U.S. should get same standard of review as permanent residents.

Samuel C. Berger, P.C. helps immigrants seeking visas to work for, or invest in, a New York or New Jersey business, and helps businesses petition for skilled immigrant employees. To schedule a consultation with one of our attorneys today, contact us online or at (212) 380-8117.

More Blog Posts:

ICE Fines New Jersey Business Over $600,000 for Immigration Employment Violations, New York & New Jersey Immigration Lawyer Blog, September 21, 2012
U.S. Senate Passes Extension of EB-5 Investor Visa Pilot Program, New York & New Jersey Immigration Lawyer Blog, September 7, 2012
Almost Half of the Applications for H1-B Visas are from Computer Companies; New York Leads the Demand for Skilled Immigrants, New York & New Jersey Immigration Lawyer Blog, July 19, 2012
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