APPEAL FROM DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. THOMAS. (D.C. Civil No. 75-169).
Weis, Van Dusen and Garth, Circuit Judges.
VAN DUSEN, Circuit Judge.
This appeal raises the important question of whether 24 V.I.C. § 129, which provides for the replacement of alien nonimmigrant workers in the Virgin Islands with United States citizens or permanent resident aliens,*fn1 is (1) preempted under the Supremacy Clause, Art. VI, cl. 2, of the Constitution,*fn2 by the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. §§ 1101, et seq., or (2) violative of the Equal Protection Clause of the Fourteenth Amendment as applied through section 3 of the Revised Organic Act of the Virgin Islands, 48 U.S.C. § 1561, as amended.*fn3
The district court denied a request for injunction against enforcement of the Virgin Islands statute and dismissed the complaint, finding neither pre-emption nor equal protection violations. Rogers v. Larsen, V.I. , 411 F. Supp. 122 (D. V.I. 1976). Because we disagree as to pre-emption, the order of the district court will be reversed.*fn4 Under the view we take of this case, it is unnecessary to reach the issue of equal protection.
Appellant Rafael Lockhart*fn5 was admitted to the Virgin Islands for temporary employment as a nonimmigrant alien under § 101(a)(15)(H)(ii) of the INA, 8 U.S.C. § 1101(a)(15)(H)(ii),*fn6 and the regulations promulgated thereunder (8 C.F.R. Ch. 1). Prior to his entry, a determination had been made in accordance with the regulations promulgated under the INA by, or in behalf of, the United States Department of Labor that local workers were not available for the positions which the temporary alien nonimmigrant workers would fill and that the employment of these workers, including Lockhart, would not adversely affect the wages and working conditions of the domestic workers similarly employed. See 8 C.F.R. § 214.2(h)(3).*fn7 On April 5, 1975, pursuant to notice given by the Virgin Islands Commissioner of Labor under 24 V.I.C. § 129(a), appellant Lockhart's employer, the Litwin Corporation, informed him by letter that his position was to be filled by a United States citizen or permanent resident alien as required by Virgin Islands law and that his employment would terminate in 14 days on April 18, 1975.
The issue before us is whether 24 V.I.C. § 129(a) is pre-empted by the INA and the relevant federal regulations. Although power to regulate immigration is unquestionably exclusively a federal power, regulation of immigration is not per se pre-empted by constitutional power. De Canas v. Bica, 424 U.S. 351, 354-55, 47 L. Ed. 2d 43, 96 S. Ct. 933 (1976). When the statutes of a state or territory are challenged as void under the Supremacy Clause, "no simple formula can capture the complexities of this determination; the conflicts which may develop between state and federal action are as varied as the fields to which congressional action may apply." Goldstein v. California, 412 U.S. 546, 561, 37 L. Ed. 2d 163, 93 S. Ct. 2303 (1973). The Supreme Court has, however, established three grounds upon which a local statute may be deemed pre-empted by federal law. It will be pre-empted (1) if "Congress has unmistakenly so ordained," or (2) if "the nature of the regulated subject matter permits no other conclusion" but pre-emption, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963); De Canas v. Bica, supra at 356; or (3) if it violates the Supremacy Clause by standing "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."*fn8 Hines v. Davidowitz, 312 U.S. 52, 67, 85 L. Ed. 581, 61 S. Ct. 399 (1941); Florida Lime & Avocado Growers, Inc. v. Paul, supra at 141; Goldstein v. California, supra at 561; De Canas v. Bica, supra at 363. Our task, then, is to determine if 24 V.I.C. § 129(a) is void because it is pre-empted by the INA under any one of these tests.
The meaning of the first test is clear, but before we apply the tests to the facts of this case, we articulate our understanding of the distinction between the second and third tests. We understand the second test to mean that the subject matter of the federal and local laws is such that the two laws or regulatory schemes must inherently either conflict or be duplicative. That is, under this test it is impossible for there to be local regulation in the subject area that does not conflict with or duplicate federal regulation.
The third test is applied when there is room in the subject area for both federal and local regulation. This test requires the court to examine both statutory schemes to determine if they can co-exist or if they conflict. De Canas v. Bica, supra at 363.
As to the first test, the answer seems clear. As the United States concedes in its amicus brief, nothing in the INA or its legislative history specifically precludes local regulation in this area.*fn9 Furthermore, appellee does not cite, nor can we find, any legislative history or language in the statute indicating that Congress unmistakably ordained that the INA pre-empts local regulation. Additionally, the Supreme Court has held that in enacting the INA, Congress did not ordain pre-emption of state regulation of the employment of aliens illegally in the country. De Canas v. Bica, supra at 356.
Regarding the second test, our view is that the nature of the subject matter does not preclude local regulation in this area. We reach this conclusion by relying on Gannet Corporation v. Stevens, 6 V.I. 309, 282 F. Supp. 437 (D. V.I. 1968), which illustrates how local and federal law can coexist in this area without duplication or conflict. There, Gannet Corporation appealed from an order by the Commissioner of Agriculture and Labor of the Government of the Virgin Islands, directing it to pay back wages to certain nonresident aliens pursuant to a statutory scheme requiring employers to pay a specified minimum wage to, and provide not less than forty hours of work per week for, nonresident alien workers who had been brought to the territory to supplement the labor force. Gannet argued that the statutes authorizing the Commission to take this action were pre-empted by federal law. Judge Maris thoroughly reviewed the provisions and purposes of both the INA and the challenged Virgin Islands statutory scheme and concluded that the Virgin Islands statutes were not inconsistent with federal law. Gannet, supra, 6 V.I. at 329-30, 282 F. Supp. ...