The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
New York Education Law § 6805(1)(6) provides 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 phrase "lawfully admitted for permanent residence" refers to aliens who have obtained their green cards-that is, aliens who have gained "legal permanent resident" ("LPR") status under federal law. See 8 U.S.C. § 1101(a)(20). The New York statute excludes all other aliens from the pharmacy profession, including those who have received authorization from the federal government to work in the United States temporarily.*fn1 The question in this case is whether § 6805(1)(6) is unconstitutional because it denies non-LPR aliens equal protection of the laws or because it encroaches upon the exclusive federal power to regulate immigration.
The Supreme Court, relying on both the Equal Protection Clause and the exclusivity of the federal immigration power, has traditionally applied strict scrutiny to strike down state laws that discriminate against aliens. See Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 602 (1976). Two United States circuit courts, however, recently distinguished this precedent and upheld state laws discriminating against non-LPR aliens on the theory that alienage classifications are not suspect so long as they do not discriminate against LPRs. League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th Cir. 2007); LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005). The Second Circuit has not decided the issue.
The facts of these consolidated actions are not disputed. Plaintiffs are twenty-six aliens with temporary authorization from the federal government to work in the United States. Twenty-two of them obtained visas known as H-1B temporary worker visas, which under the Immigration and Nationality Act may be given to aliens who come "temporarily to the United States to perform services . . . in a specialty occupation . . . ."
8 U.S.C. § 1101(a)(15)(H)(i)(b); Def. 56.1 ¶ 4. The other four plaintiffs obtained "TN" temporary worker status, an immigration status created by federal law in accordance with the North American Free Trade Agreement ("NAFTA") that permits admission to "a citizen of Canada or Mexico who seeks temporary entry as a business person to engage in business activities at a professional level . . . ." 8 C.F.R. § 214.6(a). All twenty-six plaintiffs are pharmacists. They 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. (Farrell 56.1 ¶ 14.) The waiver provision expired in October 2006. (Id. at ¶ 15.) Though plaintiffs' limited licenses were set to expire by 2009 and are not eligible for renewal (because of the green card requirement), the parties stipulated and the Court ordered that the licenses be extended pending the outcome of this litigation. (Id. at ¶ 19.) Thus, plaintiffs continue to practice pharmacy in New York, and there is no dispute that they are qualified to do so but for their lack of green cards. Twenty-four of the twenty-six plaintiffs are licensed to practice pharmacy in other states. (Adusumelli Mem. at 3.)
Plaintiffs are known in the parlance of immigration law as "nonimmigrant aliens" because they are authorized to stay in the country for only a finite period. Both H-1B and TN status grant admission to the United States for an initial period of no more than three years. 8 C.F.R. §§ 214.2(h)(9)(iii)(A)(1) (H-1B visa), 214.6(e) (TN status). Both statuses also permit three-year extensions of this initial period, but an alien may not remain in the country on an H-1B visa for more than a total of six years (in other words, an H-1B visa may only be extended once). Id. at § 214.2(h)(15)(ii)(B)(1).*fn2 Despite these provisions, however, all but two of the plaintiffs have been in the United States for more than six years, and six have been here for more than ten years. (Adusumelli Opp. at 7 n. 8; Adusumelli 56.1 ¶ 20, 49-51, 98, 159-60, 201-02; Farrell 56.1 ¶ 8.) Two patterns of the immigration process for professionals explain this apparent anomaly. First, professional aliens who receive temporary work authorization are often former students who entered the country on student visas, completed their studies at an American university, and then remained to work in the United States as H-1B or TN professionals. (See, e.g.,Farrell 56.1 ¶¶ 2-4 (Farrell entered on an F-1 student visa in 1999, received a Doctor of Pharmacy from Howard University in 2005, and subsequently received an H-1B visa to work as a pharmacist at Mount Sinai Hospital).) Second, aliens may apply for green cards while working in the country on nonimmigrant status.*fn3 Because the green card process is slow and often remains unresolved when an H-1B professional's maximum period of stay expires, the United States issues "Employment Authorization Documents" ("EADs") to extend the work permissions of aliens awaiting green card determinations who are not eligible for further visa extensions. See 8 C.F.R. § 274a.12(c)(9). Here, twenty-two plaintiffs have applied for green cards, and sixteen of them have received EADs because they have exhausted the maximum terms of their H-1B visas. (Adusumelli Mem. at 3; Adusumelli 56.1 Response ¶ 4.) Thus, though plaintiffs are technically "non-immigrants," 8 U.S.C. § 1101(a)(15), most of them intend to immigrate and all of them are here in compliance with federal immigration laws and policy. The Court uses the misnomer only because it is a term of art imbedded in the law, see Toll v. Moreno, 458 U.S. 1, 3 (1982), not because it accurately describes plaintiffs' intentions.
Defendants are the Commissioner of Education and the Chancellor of the Board of Regents (collectively, "the State")-the leaders of the two New York agencies responsible for enforcing § 6805(1)(6).*fn4 They argue that nonimmigrant aliens are transient as a class and that the statute rationally protects the public from the consequences of this transience:
Section 6805(1)(6) [furthers] . . . New York's legitimate interest in protecting the health and safety of its residents by monitoring, regulating and enforcing compliance with professional disciplinary rules and ensuring the availability of malpractice actions against pharmacists where appropriate. . . . Persons without permanent ties to the United States are less likely to remain in the state, and  are therefore less likely to comply with state disciplinary regulations. . . . Likewise, . . . pharmacists without permanent ties to the United States are more likely to locate their assets outside the state and outside the country, making them less available to satisfy judgments in malpractice actions. (Def. Mem. at 18-19.)
Plaintiffs argue § 6805(1)(6) violates the Equal Protection Clause; unconstitutionally encroaches upon the federal immigration power; conflicts with federal immigration law; violates substantive due process; and violates the right to interstate travel. They seek a judgment declaring the statute unconstitutional and permanently enjoining the defendants from enforcing it. The parties filed cross motions for summary judgment. Because the Court agrees with plaintiffs' first two arguments, it does not reach the others.
"State classifications based on alienage are subject to 'strict judicial scrutiny.'" Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 602 (1976) (quoting Graham v. Richardson, 403 U.S. 365, 376 (1971)). The Supreme Court established this rule of constitutional law in a line of cases decided between 1971 and 1977 that began with Graham v. Richardson. The Court had struck down state and local alienage classifications before, see Yick Wo v. Hopkins, 118 U.S. 356 (1886) (municipal ordinance that excluded Chinese aliens from the laundry industry); Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948) (California law that denied fishing licenses to aliens not eligible for federal citizenship); Truax v. Raich, 239 U.S. 33 (1915) (Arizona law that required private employers with five or more employees to employ 80% citizens), but not until Graham did the Court explain its rationale in the terminology of modern Constitutional jurisprudence:
[C]lassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular' minority (see United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4 (1938)) for whom such heightened judicial solicitude is appropriate. Accordingly, it was said in Takahashi that "the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits." 403 U.S. at 372. The Graham court applied this principle to declare unconstitutional two welfare statutes, one that denied benefits to all non-citizens and another that allowed aliens to receive benefits only if they met a 15-year residency requirement. Id. at 367-69.
In the ensuing six years, the Court struck down four similar alienage classifications: a New York law that excluded non-citizens from a portion of the civil service, Sugarman v. Dougall, 413 U.S. 634 (1973); a Connecticut law that made non-citizens ineligible to take the bar exam, In re Griffiths, 413 U.S. 717 (1973); a Puerto Rico law that excluded non-citizens from the private practice of engineering, Flores de Otero, 426 U.S. at 576; and a New York law that limited public financial aid for higher education to citizens and aliens who had applied for citizenship or who declared an intent to apply when eligible. Nyquist v. Mauclet, 432 U.S. 1 (1977). Justice Blackmun authored all of these opinions except Griffiths, and he summarized their rationales in Flores de Otero:
The underpinnings of the Court's constitutional decisions defining the circumstances under which state and local governments may favor citizens of this country by denying lawfully admitted aliens equal rights and opportunities have been two. The first, based squarely on the concepts embodied in the Equal Protection Clause of the Fourteenth Amendment and in the Due Process Clause of the Fifth Amendment, recognizes that "(a)liens as a class are a prime example of a 'discrete and insular' minority . . . for whom . . . heightened judicial solicitude is appropriate." Graham v. Richardson, 403 U.S. at 372. The second, grounded in the Supremacy Clause, Const., Art. VI, cl. 2, and in the naturalization power, Art. I, s 8, cl. 4, recognizes the Federal Government's primary responsibility in the field of immigration and naturalization. 426 U.S. at 602 (citations omitted). Since Nyquist, the Supreme Court has upheld state laws discriminating against aliens only in two distinct circumstances that it has determined warrant lesser scrutiny. First, a state may exclude aliens from "political and governmental functions." Toll v. Moreno, 458 U.S. 1, 12 n.17 (1982); Foley v. Connelie, 435 U.S. 291, 295-96 (1978) (upholding under rational basis review New York law excluding aliens from police force). Second, states have broad power to deny benefits and opportunities to undocumented aliens, "whose very presence within the United States is the product of their own unlawful conduct." Plyler v. Doe, 457 U.S. 202, 219 (1982);*fn5 DeCanas v. Bica, 424 U.S. 351, 356 (1976) (upholding against Naturalization Clause and Supremacy Clause challenges California statute prohibiting employment of illegal aliens) ("California's attempt . . . to prohibit the knowing employment . . . of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of [its] police power regulation.").
Here, the State does not argue that § 6805(1)(6) falls into either of these established exceptions; instead the State seeks to distinguish the rule that alienage classifications draw strict scrutiny on the ground that the rule should only apply to laws that discriminate against LPRs. Unlike the Graham line of cases-most of which concerned laws that distinguished between citizens and non-citizens and all of which concerned statutes that disfavored at least some LPRs-§ 6805(1)(6) draws a slightly different line by immigration status, one that treats LPRs and citizens alike and places all other aliens into a disfavored class. Justice Rehnquist raised this distinction in his dissent in Toll v. Moreno, 458 U.S. 1, 44-45 (1982)-where the majority held that a Maryland law drawing a similar line between LPRs and other aliens violated the Supremacy Clause-but no majority of the ...