In Dandamudi v. Tisch, the Second Circuit held that (1) strict scrutiny review, not rational basis review, was applicable to a New York licensing statute that prohibited lawfully admitted nonimmigrant aliens, including those with authorization to work in United States temporarily, from obtaining their licenses as pharmacists; and (2) that the New York statute was not narrowly tailored to further a compelling government interest.^[1] While the court decided the case under the Equal Protection Clause, it also noted that the statute, under the Supremacy Clause, stood as an obstacle to the full purposes and objectives of Congress.^[2] Particularly, the court expressly refused to follow the Fifth and Sixth Circuit, which (1) created a distinction between nonimmigrant aliens with temporary residency and those with permanent residency; and (2) applied the rational basis review, instead of the strict scrutiny test, to determine whether the state statute was unconstitutional.^[3] The Second Circuit correctly applied the strict scrutiny test and found that the New York law would preclude the nonimmigrants from participating in the exact thing the federal government specified they could do (i.e. work). However, the court should have further expanded the holding and found, not just noted, that the statute was unconstitutional even under the Supremacy Clause and against federal policy.

The plaintiffs in Dandamui were authorized by the federal government to reside and work in United States, because they either obtained a H1 B temporary worker visa under the Immigration and Nationality Act (“INA”) or “TN” temporary worker status pursuant to the North American Free Trade Agreement.^[4] Both visas permit individuals to work and reside in United States, but only temporarily, and such individuals are referred to as nonimmigrants under 8 U.S.C. § 1101(a)(15).^[5] Although the nonimmigrant, to obtain such a visa, has to indicate he does not intend to stay in United States permanently, the Board of Immigration Appeals and the State Department recognize the doctrine of dual intent, which allows nonimmigrants to show an intention to reside in United States temporarily, while also intending to remain permanently and applying for an adjustment of status.^[6] Also, federal law allows TN or H1 B aliens to maintain temporary work status for greater than the maximum statutory period.^[7] In fact, all of the plaintiffs in Dandamudi were authorized to work and reside for more than six years, which is the maximum statutory period.^[8] In fact, twenty-two plaintiffs had applied for Permanent Resident status and sixteen had received Employment Authorization Documents to extend the time period they could work while they waited for their green cards.^[9]

The New York licensing statute in question, New York Education Law § 6805(1)(6), prevented a legally admitted alien, without permanent residency, from obtaining his or her license as a pharmacist.^[10] Although all plaintiffs in Dandamudi were licensed pharmacists per a statutory waiver, the waiver was set to expire in 2009 and would thus bar the plaintiffs from maintaining their licenses, so the plaintiffs quickly sued state officials and argued that § 6805(1)(6) was unconstitutional because it violated the Equal Protection and Supremacy Clause.^[11] The Second Circuit affirmed the lower court’s grant of motion for summary judgment against the defendants by holding that the New York licensing statute was to be reviewed under the strict scrutiny test, even though the statute discriminated against nonimmigrants with finite residency rather than aliens with permanent residency, and held the statute unconstitutional.^[12]

Under the Equal Protection Clause of the Fourteenth Amendment, a state cannot “deny to any person within its jurisdiction the equal protection of the laws.”^[13] The strict scrutiny test applies to any law that “interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.”^[14] The Supreme Court has long held that the Fourteenth Amendment applies to aliens, and thus a state cannot discriminate based on alienage.^[15] A state law that treats aliens unequally is presumed to be unconstitutional unless the classification was necessary to fulfill a constitutionally permissible and substantial purpose.^[16] However, the Supreme Court in Graham v. Richardson identified two exceptions to this rule: (1) as long as the exclusion passes the rational basis test, states are allowed to exclude aliens from political and governmental functions or civic roles that directly influence the political process; and (2) states have more power to prohibit illegal aliens from benefits, because an illegal alien’s violation of federal law is not constitutionally irrelevant.^[17] The Second Circuit in Dandamudi specifically followed the Graham precedence in stating that “statutes that deny opportunities or benefits to aliens are subject to strict scrutiny unless they fall within” the above exceptions.^[18]

However, since the Supreme Court has never applied the strict scrutiny test to a statute that discriminates against nonimmigrant aliens, there is a circuit split on whether there should be a distinction between legally permanent residents (“LPR”) and nonimmigrants when applying the strict scrutiny test rather than the rational basis review. The Fifth Circuit, in LeClerc v. Webb, in upholding a Louisiana law that required citizenship or LPR status for admission to the State Bar, held that nonimmigrants were not part of the suspect class and applied the rational basis review.^[19] The Fifth Circuit focused on the fact that nonimmigrants are admitted for a finite period, may not serve in the military, are treated differently for tax reasons, and may be denied federal welfare benefits, unlike LPRs or citizens.^[20] Similarly, in LULAC v. Bredesen, the Sixth Circuit held that nonimmigrants are not a suspect class and upheld a Tennessee law that required citizenship or LPR status for receiving one’s driver’s license.^[21] However, the Second Circuit rejected to follow the Fifth and Sixth Circuit, and pointed out that the two circuits misunderstood the law by focusing on whether the nonimmigrants were similar to citizens.^[22]

The Second Circuit, in Dandamudi, rejected the Fifth and Sixth Circuit’s rationale for three reasons.^[23] First, the Court recognized that the Supreme Court’s identification of the similarities between citizens and aliens in Graham did not create a test to determine whether to apply strict scrutiny, but rather, the identification of similarities was the Court’s attempt to disprove the state’s compelling-reason argument.^[24] Second, the Supreme Court has always identified aliens without subdividing nonimmigrants from LPRs for Equal Protection Clause issues, and nonimmigrant aliens are part of the broader class “aliens” as well as the “discrete and insular minority.”^[25] Finally, it noted that even if the Second Circuit followed the Sixth and Fifth’s test in determining whether to apply the strict scrutiny test on the proximity of nonimmigrants to citizens, nonimmigrants are adequately similar to citizens.^[26]

The Second Circuit continued the analysis by attacking the Fifth and Sixth Circuit; “transience” arguments. In both LeClerc and LULAC, the courts differentiated nonimmigrants from LPRs by their temporary status; however, Second Circuit criticized the two circuits’ arguments and stated that the “aliens at issue are ‘transient’ in name only,” and the realistic duration of the nonimmigrants is much longer and sometimes ultimately permanent.^[27] The court also pointed out that under the Fifth and Sixth Circuit’s rationale, an unlawful alien would receive a greater protection because of heightened rational basis review rather than a lawful nonimmigrant because of mere rational basis review.^[28] Ultimately, the court held that nonimmigrants are part of the suspect class and the statute was not narrowly tailored to further a compelling government interest, and thus unconstitutional under the Fourteenth Amendment.^[29]

The Second Circuit’s findings correctly recognized the flaws in the Fifth and Sixth Circuit’s rationale for five reasons: (1) the Supreme Court has never indicated that nonimmigrants are distinct or not part of the suspect class for equal protection issues, but simply distinguished between lawful and illegal aliens; (2) the Second Circuit, unlike the Fifth and Sixth, refused to create a new exception without proper authority or even a hint of precedence; (3) even if the distinguishing factor is the proximity of nonimmigrants to citizens, the similarity is sufficient due to taxes and want of permanent residency; (4) temporary aliens, are the leading example of a “discrete and insular” minority, especially due to political impotence; and (5) even though the temporary status of nonimmigrants is an issue in LeClerc and LULAC, the reality, as shown by plaintiffs in both LeClerc and Dandamudi, is that many of these “temporary” residents actually apply for permanent citizenship. However, the court should have further held the statute unconstitutional under the Supremacy Clause, because, more importantly, these licensing state statutes actually conflict with the federal government’s goals and policy.

The Supreme Court, as supported by the dissent in LeClerc, has not distinguished between immigrant and nonimmigrant aliens when analyzing the suspect class issue.^[30] It has actually analyzed alienage suspect class as a “general alien,” and, as shown by Judge Gilman’s dissent, the Supreme Court by-passed the chance to create an exception for nonimmigrants in Toll v. Moreno.^[31] In fact, the Court did not rule out the district court’s holding that nonimmigrant aliens are within the “suspect classification blanket.”^[32] The only time the Supreme Court has drawn a distinction as to whether to apply rational basis or strict scrutiny involved illegal aliens, and even then, the Supreme Court applied heightened rational basis.^[33] The Second Circuit correctly recognized that the Fifth and Sixth Circuit’s analysis would actually give illegal aliens higher protection than legal nonimmigrants by applying the heightened rational basis review.^[34] Further, the Supreme Court is not ignorant to the terms used to identify nonimmigrants and immigrants since it has dealt with distinguishing between such terms for other issues.^[35]

The court in Dandamudi accurately refused to create a new test for the application of the strict scrutiny review, unlike the Fifth and Sixth Circuit. As pointed out by the dissent in both LULAC and LeClerc, the majority failed to follow the Supreme Court, and created an exception predicting the Supreme Court’s actions.^[36] Judge Higginbotham addressed this issue in his dissent to LeClerc by pointing out that the Supreme Court has never allowed circuit courts to “judicially craft[ ] a subset of aliens, scaled by how [the court] perceives the aliens’ proximity to citizenship.”^[37] However, even if one is to apply the Fifth and Sixth Circuit’s test, which was created without any strong support or precedence, nonimmigrants are actually very similar to citizens. First, nonimmigrants, especially those here with H1 B and “TN” status, are here to work legally, and thus, they do pay taxes on their income, and many times the tax terms are very similar, if not identical, to citizens and LPRs.^[38] Further, as argued by Judge Stewart in his dissent to LeClerc, a group’s ability to serve in the military or “temporary” status does not indicate whether the group is part of the suspect class.^[39] Rather, the Supreme Court has held aliens’ inability to vote and protect themselves through the political process as well as the “long history of discrimination against aliens, often based on prejudice or economic protectionism” is the justification for the use of strict scrutiny.^[40]The court’s decision in Dandamudi further correctly addressed the core of LeClerc and LULAC’s “transience” arguments, where both held that the temporary status of nonimmigrants is a sufficient basis to apply the rational basis review.^[41] The reality is that many nonimmigrants remain in United States, legally, for longer than the time allowed under the relevant statute and eventually apply for permanent residency. In fact, the act is so common that the federal government recognizes the dual intent doctrine and issues extensions regularly.^[42] Also, the plaintiffs in LeClerc and Dandamudi portrayed this reality.^[43] This reality not only collapses the “temporary” argument in LeClerc and LULAC, it also portrays that nonimmigrants are much more similar to LPRs because of their intention to remain in United States permanently.

The court in Dandamudi should have gone beyond the Equal Protection Clause and not just noted but also held the statute unconstitutional under preemption and policy grounds. In fact, many courts have applied the Supremacy Clause on statutes affecting aliens, and the Supreme Court has held that federal immigration laws “wholly occupy the field and preempt state efforts to regulate immigration.”^[44] As pointed out by Judge Higginbothm’s dissent, the majority in LeClerc refused to recognize the federal government’s strong power in governing immigration and naturalization issues.^[45]A state law is preempted when it “stands as an obstacle to the accomplishment and execution of full purposes and objectives of Congress,”^[46] and when the federal government has already specified that nonimmigrants admitted to United States are to practice a specialty “profession,” the state cannot again decide whether nonimmigrants can be allowed to practice that specialty.^[47] The only requirement for these nonimmigrants to engage in specialty occupations is that they are “professionally qualified,” and thus state statutes similar to ones in LeClerc create an obstacle to the accomplishment and execution of federal government’s goals, because they make the same individuals, which Congress intended to practice a specialty, ineligible to practice that occupation.^[48]

There is also a strong policy argument against such statutes. State statues that prohibit nonimmigrants from participating in a particular occupation run afoul with the federal government’s objective of injecting these specialized workers in the economy. H1 B and “TN” status citizenship is given with the intent to have such individuals “perform services…in a specialty occupation” or “at a professional level.”^[49] Licensing statutes that require LPR status create bizarre outcomes, because an alien allowed entrance for specialized work is now no longer able to work, especially since license to practice is almost always required for “professional” vocations. Such statutes, thus, interfere with infusion of specialized workers in the economy.

            The Second Circuit in Dandamudi correctly applied the strict scrutiny test under the Equal Protection Clause and held the New York statute unconstitutional. The court recognized the flaws in the Fifth and Sixth Circuit’s rationale, and instead applied the strict scrutiny test by finding nonimmigrants as part of the suspect class.^[50] The Fifth and Sixth Circuit went beyond the Supreme Court’s precedence in creating a new exception to the strict scrutiny test, read the Graham analysis incorrectly, and failed to recognize nonimmigrants as a “discrete and insular” minority. Further, even if such statutes are upheld under the Equal Protection Clause, there may still be several preemption and policy issues.