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Can I get married in a state that has gay marriage but live in one that doesnt and then sponsor my husband for a green card?

Greenville, SC |

we want to get married in NY but live in south carolina, can i still get a green card for him?

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Attorney answers 6


This is a common question. You can be married in any state that will legally marry you. It does not mean you have to continue to reside in that state or ever have to reside in that state. You can get married in Washington DC for example, and then live in Virginia, and USCIS will accept your marriage as long as it is legal and genuine. Immigration rights are federally conferred and have nothing to do with states.

This is addressed further in a blog post in the link attached.


Yes. Immigration is Federal law.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.




USCIS has recently issued an FAQ regarding same sex marriages. It indicates that they are going to review the marriage petition against the law in which the couple resides. This, if it is policy, will cause consternation and litigation. If you file the I-130 in your state and that state does not recognize same sex marriages, please be ready to litigate. Our office is willing to take these cases up through the district and circuit courts as we believe it is contrary to the holding of U.S. v. Windsor. We hope USCIS will not continue with this path but we are prepared and you should be as well.


I agree with my colleagues.


There is no problem getting married and filing the petition. However, CIS has made comment that they may consider "the law of the state of residence in addition to the law of the state of celebration of the marriage" when adjudicating the petition, and that if necessary they will issue guidance in the future. My opinion is that it would be very difficult to deny such a case solely on residence issues IF a heterosexual couple would otherwise be approved under the same circumstances.

Samuel Ouya Maina, Esq. 415.391.6612 Law Offices of S. Ouya Maina, PC 332 Pine Street, Suite 707 San Francisco, CA 94104