Appeal from an order of the United States District Court for the Southern District of New York (Holwell, J.), entered on September 30, 2010, granting plaintiffs' motions for summary judgment and enjoining defendants from applying or enforcing New York Education Law § 6805(1)(6) against plaintiffs.
The opinion of the court was delivered by: Wesley, Circuit Judge:
Before: WESLEY, HALL, Circuit Judges, UNDERHILL, District Judge.*fn1
2 This case involves a state regulatory scheme that seeks 3 to prohibit some legally admitted aliens from doing the very 4 thing the federal government indicated they could do when 5 they came to the United States--work. Plaintiffs-Appellees 6 are a group of nonimmigrant aliens who have been authorized 7 by the federal government to reside and work as pharmacists 8 in the United States. All currently reside in New York and 9 are licensed pharmacists there. Plaintiffs obtained 10 pharmacist's licenses from New York pursuant to a statutory 11 waiver to New York Education Law § 6805(1)(6)'s requirement 12 that only U.S. Citizens or Legal Permanent Residents 13 ("LPRs") are eligible to obtain a pharmacist's license in 14 New York. The waiver provision was set to expire in 2009.
15 In response, plaintiffs sued various state officials*fn2 16 responsible for enforcing the law in the United States 17 District Court for the Southern District of New York.
1 Plaintiffs allege that § 6805(1)(6) is unconstitutional 2 because it violates the Equal Protection and Supremacy 3 Clauses of the United States Constitution. In a thorough 4 and well-reasoned opinion, the district court granted 5 plaintiffs' motion for summary judgment and permanently 6 enjoined defendants from enforcing the law. See Adusumelli 7 v. Steiner, 740 F. Supp. 2d 582 (S.D.N.Y. 2010).
8 On appeal, New York asks us to abrogate the Supreme 9 Court's general rule that state statutes that discriminate 10 based on alienage are subject to strict scrutiny review.
11 The state argues that the statute at issue here, which 12 discriminates against nonimmigrant aliens should be reviewed 13 only to determine if there is a rational basis that supports 14 it. In our view, however, a state statute that 15 discriminates against aliens who have been lawfully admitted 16 to reside and work in the United States should be viewed in 17 the same light under the Equal Protection Clause as one 18 which discriminates against aliens who enjoy the right to 19 reside here permanently. Applying strict scrutiny, 20 therefore, and finding, as the state concedes, that there 21 are no compelling reasons for the statute's discrimination 22 based on alienage, we hold the New York statute to be 1 unconstitutional. We affirm the district court's grant of 2 summary judgment for plaintiffs.
4 Most of the plaintiffs have H-1B temporary worker 5 visas. Under the Immigration and Nationality Act ("INA"), 6 H-1B visas may be given to aliens who come "temporarily to 7 the United States to perform services . . . in a specialty 8 occupation." 8 U.S.C. § 1101(a)(15)(H)(i)(b). The 9 remaining plaintiffs have what is known as "TN" status. 10 "TN" status is a temporary worker status created by federal 11 law pursuant to the North American Free Trade Agreement 12 ("NAFTA"). NAFTA permits "a citizen of Canada or Mexico who 13 seeks temporary entry as a business person to engage in 14 business activities at a professional level" to enter the 15 United States and work here pursuant to the requirements of 16 the TN status. 8 C.F.R. § 214.6(a).
17 These provisions technically grant plaintiffs admission 18 to the United States for a finite period. Because 19 plaintiffs' status grants them the right to reside and work 20 in the United States only temporarily, plaintiffs are part 21 of the group of aliens the immigration law refers to as 22 non-immigrants. 8 U.S.C. § 1101(a)(15). And, although 1 plaintiffs had to indicate that they did not intend to stay 2 here permanently to obtain their visas, the truth is that 3 many (if not all) actually harbor a hope (a dual intention) 4 that some day they will acquire the right to stay here 5 permanently. The BIA and the State Department both 6 recognize this doctrine of dual intent, which allows aliens 7 to express an intention to remain in the United States 8 temporarily (to satisfy the requirements of their temporary 9 visas) while also intending to remain permanently, which 10 allows them to apply for an adjustment of status. Matter of 11 Hosseinpour, 15 I. & N. Dec. 191 (BIA 1975); 70 No. 42 12 Interpreter Releases 1444, 1456-58 (Nov. 1, 1993).
13 For purposes of both the H1-B and TN visas, the initial 14 period during which the visa-holder can legally remain and 15 work in the United States is three-years. 8 C.F.R. 16 §§ 214.2(h)(9)(iii)(A)(1) (H1-B visa), 214.6(e) (TN status).
17 Each visa status also permits a three-year extension of the 18 initial period. Id. at §§ 214.2(h)(15)(ii)(B), 214.6(h). 19 But an alien with an H1-B visa is limited to one such 20 extension, essentially restricting H1-B status to a six-year 21 period.*fn3 Id. at § 214.2(h)(15)(ii)(B)(1). In practice, 1 however, federal law permits many aliens with TN or H1-B 2 status to maintain their temporary worker authorization for 3 a period greater than six years. All plaintiffs in this 4 case, for example, have been legally authorized to reside 5 and work in the United States for more than six years. And, 6 six plaintiffs have been authorized to reside and work in 7 the United States for more than ten years.
8 Several factors contribute to the difference between 9 the technical limitations on H1-B and TN status and the 10 length of time these aliens remain authorized to reside and 11 work in the United States. Many aliens who receive 12 temporary worker authorization are former students who 13 entered the United States with a student visa and who have 14 made their home in the United States for many years before 15 entering the professional world.*fn4 Many nonimmigrant aliens 16 are also often eligible to apply for LPR status. This 17 process is typically quite slow, and the federal government 18 therefore regularly issues Employment Authorization 1 Documents ("EADs"), which extend the time period during 2 which these aliens are eligible to work in the United States 3 while they await their green cards. 8 C.F.R. 4 § 274a.12(c)(9).
5 Twenty-two plaintiffs have applied for Permanent 6 Resident status.*fn5 Sixteen have received EADs because they 7 have exhausted the six-year maximum authorization provided 8 by H1-B status.
9 Based on their visa status, all plaintiffs currently 10 reside in the United States legally and have permission to 11 work here. All are pharmacists who were granted a 12 pharmacist's license (albeit a "limited" one) pursuant to a 13 previous version of the New York statute at issue here.*fn6 14 Section 6805(1)(6), in its current incarnation, provides 1 that to be eligible for a pharmacist's license in New York, 2 an applicant must be either a U.S. Citizen or a LPR.*fn7 The 3 statute bars all other ...