CA2 on H-1B, TN Visa Pharmacists, N.Y. Law: Paidi v. Mills

"This case involves a state regulatory scheme that seeks to prohibit some legally admitted aliens from doing the very thing the federal government indicated they could do when they came to the United States—work.  Plaintiffs-Appellees are a group of nonimmigrant aliens who have been authorized by the federal government to reside and work as pharmacists in the United States.  All currently reside in New York and are licensed pharmacists there.   Plaintiffs obtained pharmacist’s licenses from New York pursuant to a statutory waiver to New York Education Law § 6805(1)(6)’s requirement that only U.S. Citizens or Legal Permanent Residents (“LPRs”) are eligible to obtain a pharmacist’s license in New York.  The waiver provision was set to expire in 2009.  In response, plaintiffs sued various state officials responsible for enforcing the law in the United States District Court for the Southern District of New York.  Plaintiffs allege that § 6805(1)(6) is unconstitutional because it violates the Equal Protection and Supremacy Clauses of the United States Constitution.  In a thorough and well-reasoned opinion, the district court granted plaintiffs’ motion for summary judgment and permanently enjoined defendants from enforcing the law.  See Adusumelli v. Steiner, 740 F. Supp. 2d 582 (S.D.N.Y. 2010).  On appeal, New York asks us to abrogate the Supreme Court’s general rule that state statutes that discriminate based on alienage are subject to strict scrutiny review.  The state argues that the statute at issue here, which discriminates against nonimmigrant aliens should be reviewed only to determine if there is a rational basis that supports it.  In our view, however, a state statute that discriminates against aliens who have been lawfully admitted to reside and work in the United States should be viewed in the same light under the Equal Protection Clause as one which discriminates against aliens who enjoy the right to reside here permanently.  Applying strict scrutiny, therefore, and finding, as the state concedes, that there are no compelling reasons for the statute’s discrimination based on alienage, we hold the New York statute to be unconstitutional.  We affirm the district court’s grant of summary judgment for plaintiffs." - Paidi v. Mills, July 10, 2012.

[Hats off to former AILA Presdent, Maggie Catillaz, and to Krishnan Chittur!]