A group of pharmacists with nonimmigrant visas sued a number of New York state officials over a law limiting pharmacy licenses to U.S. citizens and legal permanent residents. The plaintiffs in Dandamundi, et al v. Tisch, et al, 686 F.3d 6 (2nd Cir. 2012) alleged that the law violated the U.S. Constitution's Equal Protection and Supremacy Clauses by discriminating based on "alienage." The Second Circuit affirmed the trial court's ruling in the plaintiffs' favor, finding that immigration status, other than a lack of documented status, is a "suspect class" and that the law failed strict scrutiny review. While this case did not directly involve allegations of discrimination by an employer, it may have an important benefit for nonimmigrant employees who face discrimination based on their immigration status or national origin.
The plaintiffs have H-1B worker visas or TN temporary worker status, giving them the right to work in the United States for a limited time in a specified job. Each plaintiff had legally worked in the United States for six or more years. The court stated that twenty-two of the thirty-two plaintiffs had applied to obtain green cards. The six-year maximum H-1B period had expired for sixteen of the plaintiffs, so they had obtained Employment Authorization Documents from immigration officials to allow them to remain in the U.S. and continue working during review of their applications.
All of the plaintiffs had New York pharmacy licenses issued through a waiver program in New York Education Law § 6805(1)(6). The law states that pharmacy licenses are only available to citizens and permanent residents, but the waiver extended the availability of licenses to people with certain nonimmigrant visas. The plaintiffs' pharmacy licenses became void when the waiver expired in 2009.
The lawsuit alleged that the law violated two clauses of the Constitution. Expressly omitting nonimmigrant visa holders from eligibility for licenses, the plaintiffs claimed, violated the Equal Protection Clause. The New York law, by subverting their work authorization from federal immigration authorities, also allegedly violated the Supremacy Clause. The state argued that it had the authority to deny certain legal protections to nonimmigrant visa holders.
The Second Circuit Court of Appeals applied several Supreme Court cases addressing state laws restricting certain state services to nonimmigrants. In one case, Takahashi v. Fish and Game Commission, 334 U.S. 410 (1948), the Supreme Court ruled against the state of California regarding a law stating that immigrants who did not qualify for U.S. citizenship could not obtain fishing licenses. The Court invalidated laws that made immigrants in Arizona and Pennsylvania ineligible for public assistance in Graham v. Richardson, 403 U.S. 365 (1971). The Second Circuit rejected the State of New York's argument that it should apply rational basis review rather than strict scrutiny. The state cited cases from other Circuit Courts of Appeal that purportedly upheld state laws denying legal protections to nonimmigrant visa holders that were available to permanent residents.
If you need to speak to an employment law attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or 646-867-7997.
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Bullying and The New Jersey Healthy Workplace Bill: Beyond Harassment and Hostile Work Environment, The New Jersey Employment Law Firm Blog, June 1, 2012
Specified New Jersey Workers and Their Rights, The New Jersey Employment Law Firm Blog, December 5, 2011