8. Judge Rules NY Pharmacy Licensing Law Discriminates Against Nonimmigrants

The U.S. District Court for New York ruled on September 29, 2010, that a New York education law was unconstitutional because it violates the rights of nonimmigrants under the Equal Protection Clause of the U.S. Constitution.  Twenty-six qualified pharmacists with temporary authorization to work in the United States filed a lawsuit against the New York State Department of Education who had refused them licenses because they did not have lawful permanent resident (LPR) status or U.S. citizenship.

The controversial law, New York Education Law § 6805(1)(6), states that "[t]o qualify for a pharmacist’s license, an applicant shall...be a United States citizen or an alien lawfully admitted for permanent residence in the United States." The law excludes all nonimmigrants.

Twenty-two of the plaintiffs had obtained H-1B visas and the other four has TN visas. All twenty-six had complied with immigration law.  Twenty-two of them had applied for lawful permanent residence and sixteen had EADs.  Each of the plaintiffs had secured “limited licenses” to practice pharmacy in New York under a previous version of § 6805(1)(6), which permitted a three-year waiver of the citizenship or green card requirement for otherwise qualified pharmacists, plus a one year extension of that waiver. The plaintiffs’ limited licenses were set to expire in 2009, and could not be renewed.  The Court had ordered that all twenty-six licenses be extended pending the outcome of this case.  Therefore, all twenty-six were able to keep practicing pharmacy for the duration of the case.

The State of New York contended that the purpose of the law was to protect the health and safety of the state’s residents by monitoring, regulating and enforcing compliance with professional disciplinary rules and ensuring the availability of malpractice actions against pharmacists.  According to the State, pharmacists without U.S. citizenship or LPR status, i.e., nonimmigrants without permanent ties to the United States, are less likely to remain in the state, and therefore less likely to comply with state disciplinary regulations and be available for malpractice actions.

The State further argued that LPRs “share essential benefits and burdens of citizenship” since they pay taxes, they can be in the army, and can live and work in the United States indefinitely, while nonimmigrants do not have as much in common with U.S. citizens. According to the State’s position, nonimmigrants have a distinct “constitutional status” that is not protected under the Equal Protection Clause.

However, the Court disagreed with the State’s position.  Both LPRs and nonimmigrants have foreign citizenship and can choose to leave the United States permanently for their country of citizenship in the future.  Also, both have the choice to remain in the United States permanently: a nonimmigrant can apply for and obtain LPR status, and an LPR can stay by exercising his or her right to permanent residence.  According to the Court, the difference between the two statuses is that a nonimmigrant may not be able to remain in the United States if he or she wishes.  The differences between LPR and nonimmigrant status come down to the fact that nonimmigrants have not yet obtained permission to reside in the United States permanently.  (The Court also recognized that there are some other minor differences between nonimmigrants and LPRs, such as the fact that nonimmigrants are barred from the United States military, some of them do not pay taxes on foreign income, they can be denied certain federal benefits, and they are usually admitted for a single purpose, such as practicing a particular profession, like pharmacy).

Because the issue at hand was the fact that nonimmigrants can pick up and leave the state or the country because they cannot permanently stay in the United States, the Court found the law to be unconstitutional.  This is because the law does not address the possibility that U.S. citizen and LPR pharmacists can also leave the state or country to avoid malpractice decisions and disciplinary actions.  The law singles out nonimmigrants, who can become LPRs when the federal government processes their pending green card applications.  Therefore the law is unconstitutional under the Equal Protection Clause.

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