Court held New York cannot drive H-1B and NAFTA workers out of the State

A New York state law requiring pharmacists to be either a US citizen or a lawful permanent resident has been struck down by the US Court of Appeals for the Second Circuit.

Originally filed in August 2008 on behalf of nine Indian-American pharmacists in federal court, the plaintiffs contended that the law violated the Equal Protection and Supremacy Clauses of the US Constitution.  

The case of H-1B workers

  • The pharmacists were all employed in pharmacies in New York and had passed the licensing exam and met all other required conditions set by the State.
  • They were however only granted a limited license due to the fact that they were not US citizens or lawful permanent residents.
  • Some of the plaintiffs were holding H-1B visas while others were under TN visas which are issued under NAFTA program and are classified as temporary visas.

Skilled workers’ case in the court

  • Prior to the case moving to the Second Circuit, a federal district court judge struck down the provision of the New York state law on September 30, 2010 as violating the US Constitution.
  • The State of New York appealed the district court’s decision.
  • The Court of Appeals for the Second Circuit rejected the State’s appeal:
    • unable to see that the State was able to meet “strict security” or
    • that their argument was narrowly tailored to a compelling governmental interest using the least restrictive means available.

Court’s favors skilled workers’ suit

Lawyers representing the plaintiffs were rejoicing over the Second Circuit’s decision as the court found that the New York law was considered to be an obstacle to federal immigration law parallel to that of the recent Supreme Court decision overturning the Arizona law concerning illegal immigrants.

Decision of the Court

  • According to the Court, New York is not allowed to drive non-immigrants out of the state who have federal permission to enter the United States to work.

It is now up to the New York State Attorney General to decide whether or not to file a writ of certiorari to the US Supreme Court, as required, before the High Court will entertain a case.  However, such an appeal will most likely be problematic as the Supreme Court denies certiorari to eight out of every nine appeals.  

License Issuance refusals

  • One of the members of the first group of plaintiffs, Naveen Parupalli said that he worked as a pharmacist in 2002 under a four-year license which was set to expire in 2006.  After it expired, the State of New York refused to renew licenses for pharmacists who did not hold US citizenship or lawful permanent residency which resulted in him having to work as a pharmacy coordinator.
  • Another plaintiff, Naren Adusumilli came to the United States to obtain a master’s degree in pharmacy and passed the required boards.
    • He worked as a licensed pharmacist in New Hampshire for two years before moving to New Jersey in 2006.
    • However, not being in possession of US citizenship or lawful permanent residency resulted in more obstacles as he had to secure sponsorship for an H-1B visa and even after obtaining sponsorship, the waiting period for a green card is long.

Coupled with the New York state restrictions, it was truly extremely difficult for people like Adusumilli and Parupalli.

Legal Assistance

Truly the participation of a competent immigration lawyer can significantly make or unmake a situation should there be valid grounds.

When you think you are at risk of losing your privileges or rights that were granted to you on the strength of your US visa, you should consult a New York Immigration attorney. The experienced immigration attorneys at Niren and Associates have been in the business for over 15 years and are more than qualified to help you with your immigration problems.

The firm’s New York office can be reached at (212) 810-2976 or at [email protected].

Any information provided here does not constitute legal advice and is intended for general information only. Should you require legal advise, you are encouraged to contact a lawyer directly. All blog postings are public and are not subject to solicitor/client confidentially. Case results depend on a variety of factors unique to each case, and case results do not guarantee or predict a similar result in any further case undertaken by the lawyer.



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