Noncitizen Pharmacists Win Big Decision in New York State

In a recent case brought up the U.S. Court of Appeals by nonimmigrant pharmacists, the Second Circuit applied strict scrutiny review and found that New York Educ. Law §6805(1)(6), which limits the issuance of pharmacist licenses to U.S. citizens and Lawful Permanent Residents only, is unconstitutional.

The plaintiffs were a group of noncitizens from various countries, all of whom resided in NY and were legally authorized to work in the U.S. with an H-1B or TN visa, or Employment Authorization Document. The NY statute mandated that to be eligible for a pharmacist’s license in the state, an applicant must be either a U.S. citizen or LPR. It barred all other aliens, including those with work-authorization who legally resided in the U.S., from becoming licensed pharmacists.

The U.S. Supreme Court has long held that any state statute which denies opportunities or benefits to aliens is subject to strict scrutiny review unless it falls within one of two narrow exceptions. This means that the state must show that a particular law, when challenged, is necessary to further a compelling government interest, and that no less restrictive alternative means to the law’s provisions are available. One exception to this rule allows states to create statutes which exclude aliens from certain civic roles that directly affect the political process. The second exception acknowledges that people who reside in the U.S. without authorization may be treated differently than those who are here legally.

In this case, however, the Court said that neither exception applies, and that the statute wrongly discriminates against aliens who have been lawfully admitted to reside and work in the U.S. The Court flatly rejected NY’s argument that the state can draw a distinction between U.S. citizens/ LPRs and lawfully admitted aliens. The Court stated: “…[T]he state seeks to prohibit aliens from engaging in the very occupation for which the federal government granted the alien permission to enter the United States. . . Federal law recognizes that states have a legitimate interest in ensuring that an individual applicant has the necessary educational and experiential qualifications for the position sought. But that traditional police power cannot morph into a determination that a certain subclass of immigrants is not qualified for licensure merely because of their immigration status.”

Since NY had no compelling reasons to limit the issuance of pharmacist licenses based on alienage, the statute was struck down as unconstitutional.

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