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CITIZENSHIP OR LPR REQUIREMENT OF LICENSURE HELD UNCONSTITUTIONAL

May an alien be denied a professional license because he or she is not a U.S. citizen or lawful permanent resident (LPR)?

Many states have a law which provides that only U.S. citizens or LPRs may obtain a license to practice certain professions such as medicine, nursing, dentistry, and engineering. An example of such a law is a provision in the New York State Education Law which states that to qualify for a pharmacist’s license the applicant must be a U.S. citizen or LPR.

The exclusion covers non-LPRs including nonimmigrant workers who have authorization to work in the U.S.

But in a recent case, a federal court in the Southern District of New York held that the abovementioned New York law is unconstitutional because it denies aliens who are not permanent residents equal protection of the law and that it is contrary to the federal power to regulate immigration.

The plaintiffs in the case, Adusumelli v. Steiner, are H-1B and TN temporary workers. H-1B workers are in the U.S. temporarily to perform services in a specialty occupation. TN workers are citizens of Canada or Mexico who are in the U.S. to engage in business activities at a professional level pursuant to the North American Free Trade Agreement.

The plaintiffs secured limited licenses under a waiver provision of the law but their licenses were not renewable. They sued the heads of the New York agencies in charge of enforcing the law, seeking to declare the statute unconstitutional and permanently enjoining the defendants from enforcing it.

The defendants argued that nonimmigrant aliens are temporaryily in the U.S. and that the law rationally protects the public from the consequences of their temporary status. They maintained that the law is necessary to protect the health and safety of New York residents by enforcing and regulating disciplinary rules and malpractice actions and that persons who are here only temporarily would be less likely to comply with the disciplinary rules.

In deciding the case, the Court noted that classifications based on immigrant status such as the New York law are “intrinsically suspect” and are subject to “strict judicial scrutiny.” It cited cases decided by the U.S. Supreme Court which struck down alienage classifications. Among these cases were a New York law excluding noncitizens from civil service, a Connecticut law making noncitizens ineligible to take the bar exam, and a Puerto Rican law that barred noncitizens from engineering practice.

It also said that the only cases where the Supreme Court upheld laws discriminating against aliens and applying lesser scrutiny pertained to the exclusion of aliens from political and governmental functions and the denial of benefits to undocumented aliens.

The defendants contended that the “strict scrutiny” standard should not apply in the case because LPRs are not being discriminated against but only all other aliens. They argued that LPRs have different rights and obligations than those of other aliens. LPRs, unlike other aliens, they asserted, pay taxes like citizens, serve in the military and have authorization to live and work indefinitely.

But the court was not convinced that the differences between LPRs and nonimmigrants are substantial enough to remove non-LPRs from the “strict scrutiny” standard.

The Court also said that the New York law imposes additional burdens not intended by Congress and thus conflicts with the federal immigration power.

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