This month, we discuss Dandamudi v. Tisch,1 in which the U.S. Court of Appeals for the Second Circuit, applying strict scrutiny, held that a New York statute barring persons who were neither U.S. citizens nor legal permanent residents from obtaining a pharmacist’s license is unconstitutional and violates the Equal Protection Clause. The court’s opinion, written by Judge Richard Wesley and joined by Judge Peter Hall and Judge Stefan Underhill of the U.S. District Court for the District of Connecticut, sitting by designation, creates a circuit split with the Fifth and Sixth circuits, both of which have upheld similar provisions after applying a rational basis test.

Background

Under American immigration law, nonimmigrants are aliens legally allowed to live and work in the United States for a limited period of time only. Plaintiffs, all of whom are pharmacists, either obtained H-1B temporary worker visas, allowing them to “come ‘temporarily to the United States to perform services in a specialty occupation,’” or held “TN status,” a temporary worker status created pursuant to the North American Free Trade Agreement (NAFTA) which allows Canadian and Mexican citizens to enter the United States temporarily to engage in business activities at a professional level. Nonimmigrant aliens holding H1-B and TN visas are only allowed to stay in the United States for an initial three-year period, but the government frequently extends this authorization for a much longer amount of time.2

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