On September 29, 2010, a federal district court in Manhattan declared unconstitutional a New York State law that bars nonimmigrants authorized to work from obtaining a pharmacist license. Adusumelli v. Steiner, No. 1:08-cv-06932 (S.D.N.Y Sept. 29, 2010). The law at issue is New York Education Law §6805(1)(6). It requires all applicants for a pharmacist license to be either an American citizen or a lawful U.S. permanent resident. New York argued that the law protected the public because nonimmigrants on temporary work visas only have a "tenuous connection" with the state and, thus, would not be available to answer for disciplinary infractions or malpractice claims. The state also contended that the law protected the jobs of New York residents against those having less contacts with the state.
The court rejected these arguments on equal protection and preemption grounds. The court found an equal protection violation because the New York law did not serve a compelling state interest and was not narrowly tailored to serve an important governmental objective. Thus, the law could not survive under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. The court also held that the New York law was preempted by federal immigration law. Relying on Toll v. Moreno, 458 U.S. 1 (1982), the court found that the law imposed additional conditions on nonimmigrants than those authorized by Congress and, therefore, unconstitutionally interfered with the federal government's exclusive power to regulate immigration and naturalization.
The court's decision in Adusumelli follows a similar decision in Kirk v. New York State Department of Education, 562 F. Supp. 2d 405 (W.D.N.Y. June 23, 2008). Kirk found Section 6704 of the New York State Education Law unconstitutional because it contained a similar restriction on applicants for veterinary licenses.
Two federal courts of appeals have upheld comparable state laws that distinguish between permanent residents and nonimmigrants in granting applications for a state benefit. However, the U.S. Court of Appeals for the Second Circuit, the circuit where the Adusumelli decision arose, has not yet addressed the issue. See League of United Latin American Citizens ("LULAC") v. Bredesen, 500 F.3d 523 (6th Cir. 2007) (Tennessee law barring nonimmigrants from securing driver's licenses), and LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005) (Louisiana law barring nonimmigrants from taking the state bar exam). If Adusumelli is affirmed on appeal, this would sound the death knell for all similar restrictions in the New York State Education Law, at least, until a possible review by the U.S. Supreme Court.