By JODI SOKOLOWSKI
Buffalo Law Journal

Licensed veterinarians who are not legal U.S. citizens or permanent residents cannot be prevented from practicing in New York based on their nationality, a judge of the U.S. District Court for the Western District of New York ruled recently.

In the case Simon E. Kirk v. New York State Education Department, Hon. Charles Siragusa ruled June 23 that the state cannot constitutionally enforce a requirement in the state education law that a licensed veterinarian be either a citizen or a permanent resident of the United States.

The judge ruled that the requirements violated the Supremacy Clause of the U.S. Constitution because they conflicted with federal immigration policy as expressed in the North American Free Trade Agreement.

The case sets a precedent that could allow other noncitizen licensed professionals, from medical doctors to land surveyors to work in the United States.

"It opens the door for those eligible in the medical field to accept job offers from New York employers and work in those professions without having to go through the long, costly process of securing a green card," said Serotte Law Firm LLC partner Michael Serotte, who is not connected to the case.

Simon Kirk, a Canadian citizen who has worked as a veterinarian in Rochester for five years, will now be able to obtain a permanent state veterinary license without having to become a U.S. permanent resident or citizen. Otherwise, he would have been barred from practicing in the state after July 31.

"He faced a concrete wall as he was speeding down the road toward licensure expiration," said Kirk's lead attorney, Margaret Catillaz, a Harter Secrest & Emery LLP partner.

Kirk was able to practice for a four-year limit under a "TN" status visa through NAFTA, which, in part, prohibits states from discriminating based on race, gender, nationality or alien status.

Catillaz said her client plans to stay on as a full-time salaried veterinarian at the Animal Hospital of Pittsford, where he specializes in emergency care for small animals.

"It's not only a wonderful opportunity for him but also Upstate and Western New York to have this person of significant talent and education to stay and share that expertise with us and the animals he treats," Catillaz said.

The president of the New York State Veterinary Medical Society said there's a shortage of qualified veterinarians in the area that is being filled by veterinarians who are Canadian citizens.

"The number of veterinary schools in the United States is not keeping pace with the need for new veterinarians. It's all over the country, but particularly in Western New York and Northern New York," said David Hancock, who is also a veterinarian at the Perinton Veterinary Hospital.

Consequently, these professionals, who are permitted to work under a temporary work visa, move to other states to practice, Catillaz said.

"It's putting a blockade in the way of what is already a substantial blockage by way of immigration law," she said. "It's dissuading them from seeking to make their professional lives here."

New York state is one of a few states that limits licensure for doctors based on immigration status, Catillaz said. It requires practitioners in 13 licensed professions to be legal citizens or permanent residents: doctors, chiropractors, dentists, dental hygienists, veterinarians, veterinary technologists, pharmacists, midwives, engineers, land surveyors, landscape architects, shorthand reporters and massage therapists.

She hopes the decision will prompt the state Education Department to allow application for veterinarians other licensed professions and that it will serve as the impetus for the state Legislature to amend the law.

Over the past 10 years, state bills have repeatedly been brought up in committee without moving further. An Assembly bill, A-7959, died earlier this year but a Senate bill, S-8278, was introduced May 21.

"Legislation would certainly be preferable, but it leaves without question the course the Education Department (will) take," Catillaz said.