Does New York State have the right to restrict legal but non-permanent resident healthcare professionals from practicing there? According to The Daily Record of Rochester, in a recent decision by the US District Court for the Western District of New York, it doesn’t. Regarding Kirk v. New York State Department of Education, Judge Charles J. Siragusa held that Edcuation Law Sect. 6704 requirements restricting permanent licenses from visiting veterinarians, who aren’t citizens or green card-holding permanent residents, are unconstitutional.
The decision allows Simon Kirk, a Canadian-born vet, to continue his practice with Animal Hospital of Pittsford, NY. Kirk, who specializes in emergency veterinary medicine, interned and worked at the facility for the past four years under a non-renewable temporary license. Without the ruling, he would have lost his ability to practice at the end of July.
In his decision, Judge Siragusa found the state requirements to be in violation of the Constitution’s equal protection clause, which prohibits discrimination on the basis of race, gender, nationality, and other factors. Aliens have long been held by courts to be a protected class, but some courts have ruled that there may be a difference between permanent resident aliens and non-permanent resident aliens. In Kirk, Judge Siragusa ruled such a difference is not valid.
He further found that the restrictions violate North American Free Trade Agreement (NAFTA) provisions and, therefore, the Constitution’s supremacy clause, which invalidates state legislation that conflicts with federal laws and treaties. While Kirk does not have a green card, he does have a work-related TN Visa issued through the treaty. NAFTA allows those who hold such visas to work and live in other member countries as long as they do not plan to reside there permanently. Conversely, New York’s legislation prohibits permanent licenses to those who do not intend to stay her permanently, Judge Siragusa noted.
“In the court’s view, these statutes are in conflict,” the decision said. “By requiring the plaintiff to become a US citizen or obtain Permanent Resident Alien status, Education Law 6704(6) imposes an additional burden on him that apparently was not contemplated by NAFTA.”
Kirk’s attorney, Margaret Catillaz, said she believes the decision will have strong implications on the state. New York is one of only a few states requiring veterinarians, pharmacists, dentists, dental hygienists and other persons in healthcare to be citizens or permanent residents in order to obtain permanent licenses – as a result, the state has experienced shortages in many of these professions. “As a community, we struggle to recruit and retain this kind of talent, yet we’re closing the door in their face, said Catillaz. “Forty-seven other states are saying ‘Please, come in.’”
