If a foreign visitor wants to get married in NC and is not eligible for a Social Security number, can the register of deeds still issue a marriage license?

Plain-English summary

In 1997, the NC General Assembly added a Social Security number requirement to the marriage license application. New G.S. § 51-8 read: "Each applicant for a marriage license shall provide on the application the applicant's social security number. The register of deeds shall not issue a marriage license unless all of the requirements of this section have been met." That language was driven by federal child support enforcement law, 42 U.S.C. § 666(a)(13)(A), which conditioned state receipt of federal child support funds on a requirement that SSNs appear on professional, driver, occupational, recreational, and marriage license applications.

The collision was immediate. NC was a popular destination wedding location. Foreign visitors regularly applied for marriage licenses. But under 42 U.S.C. § 405(c)(2)(B)(i)(I) and the implementing federal regulations, an SSN can only be issued to a U.S. citizen, a national, a lawful permanent resident, or someone admitted under a status allowing work in the U.S. A tourist on a B-2 visa cannot get an SSN. If § 51-8 was read literally, no destination wedding to a foreign visitor was possible in NC.

General Counsel Andrew A. Vanore, Jr. solved the problem by reading the statute alongside federal law. The state SSN requirement reflected the legislature's intent to give child support enforcement officials a tool to locate wage-earning, support-paying parents. The tool only works for people who can have SSNs. For people who legally cannot have an SSN (because they are not entitled to one under federal law), the requirement does no work and serves no purpose. The Congress that enacted § 666(a)(13)(A) and the legislature that enacted § 51-8 cannot rationally have meant to bar all foreign-visitor marriages in the U.S. as a side effect of an SSN requirement.

The AG's solution was procedural. The register of deeds should issue the license if (1) the applicant is an alien who has not come to the U.S. for permanent residence or for employment, (2) the applicant otherwise meets the legal requirements (age, consent, kinship, capacity), and (3) the register has appropriate documentation. The AG suggested a sworn affidavit setting forth the necessary facts: that the applicant is a citizen of a foreign country, is not a U.S. citizen or national, is not in the U.S. to settle permanently, is not in the U.S. to work, and is therefore not eligible for an SSN. Proof of foreign citizenship (typically a passport) plus the affidavit would satisfy the register.

The opinion was about pragmatic statutory construction. The literal reading produced an absurd result; the AG bridged the gap with a workable procedure that registers across the state could apply.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. NC's marriage license framework was amended after the 2004 Lawrence-era social shifts, and again after Obergefell v. Hodges (2015) on same-sex marriage. SSN-related practices and identity-verification protocols at registers of deeds have continued to evolve.

Background and statutory framework

The pre-1997 NC marriage statute. Chapter 51 of the General Statutes governs marriage. The substantive requirements (age, consent, kinship, mental capacity) are in §§ 51-2 and 51-3. The license requirement is in §§ 51-6 and 51-8. Before 1997, an applicant simply gave the register of deeds the standard biographical information and any required medical certificates; an SSN was not required.

The 1997 amendment. Session Laws 1997-433, section 4.5 (later refined in Session Laws 1998-17) added the SSN requirement to § 51-8. The phrase "shall not issue a marriage license unless all of the requirements of this section have been met" made the SSN field operationally mandatory. The amendment paralleled SSN requirements added to professional licensure, driver licensure, recreational licensure, and occupational licensure statutes around the same time.

The federal child support driver. 42 U.S.C. § 666(a)(13)(A) required states, as a condition of receiving federal child support enforcement funds, to record SSNs on the listed license applications. The federal rationale was that a parent under a child support order who tries to evade enforcement can often be located by tracing wage records or government-benefit records keyed to the SSN. Marriage licenses were included because remarriage was a common life event that might surface a defaulting parent's location.

The federal SSN issuance constraints. 42 U.S.C. § 405(c)(2)(B)(i)(I), § 405(c)(3)(B)(ii), and the implementing regulations at 20 C.F.R. §§ 422.103, 422.104, 422.107, and 422.204 governed who could get an SSN. The short answer was: U.S. citizens, U.S. nationals, lawful permanent residents (green card holders), and noncitizens with specific work authorization. A B-1 business visitor, B-2 tourist, or F-1 student without on-campus employment cannot get an SSN.

The "make a mockery" reasoning. The AG's argument was an application of the canon against absurdity. Statutes should not be read to produce results their drafters cannot have intended. Reading § 51-8 to bar foreign visitors from marriage would mean Congress and the legislature, by trying to help child support enforcement, had accidentally outlawed destination weddings to foreign visitors. The AG read the statute as not reaching the case where federal law made compliance impossible.

The sworn affidavit mechanism. The opinion suggested but did not require a particular form. The needed facts were: foreign citizenship, not a U.S. national, purpose of stay not to settle permanently and not to work. A passport plus a sworn affidavit would typically supply enough evidence for the register's satisfaction. Registers retained discretion to demand more documentation if the situation seemed questionable.

Why the register, not a court, decides. Marriage licensing in NC is administrative, not judicial. The register of deeds is the licensing officer and bears the responsibility for verifying applicant qualifications. The AG's opinion gave registers a workable procedure for the SSN-impossible case rather than punting the question to a court.

Common questions

Q: What documents should a foreign visitor bring to a NC register of deeds for a marriage license?

A: Per this opinion, proof of foreign citizenship (typically a passport) and a sworn affidavit stating the visitor's status (foreign citizen, not a U.S. national, in the U.S. not to settle and not to work). Plus all the normal documents (ID, proof of age, divorce decree if previously married, etc.).

Q: What if the foreign applicant is in the U.S. for employment and could get an SSN?

A: Then the applicant must apply for an SSN and provide it on the marriage license application. The opinion's exception was specifically for visitors not eligible for an SSN.

Q: Could a register refuse to follow this opinion?

A: AG advisory opinions are persuasive but not binding. A register could disagree, though doing so would invite litigation and likely loss. Practically, registers across the state followed the opinion.

Q: Did this opinion address same-sex marriage between foreign visitors?

A: No. The opinion predates Obergefell by 17 years and addressed only the SSN-versus-foreign-status conflict.

Q: Did the AG address common-law marriage or proxy marriage?

A: No. NC does not recognize either form; the opinion was about formal marriage licenses issued by a register of deeds.

Q: Could a U.S. citizen also use a similar affidavit to skip the SSN requirement?

A: No. The exception was specifically for applicants who legally cannot get an SSN. A U.S. citizen has and must produce an SSN under § 51-8.

Citations from the opinion

• N.C. Gen. Stat. §§ 51-2, 51-3, 51-6, 51-8
• 42 U.S.C. § 405 (and subsections (c)(2)(B)(i)(I) and (c)(3)(B)(ii))
• 42 U.S.C. § 408
• 42 U.S.C. § 666(a)(13)(A)
• 20 C.F.R. §§ 422.103, 422.104, 422.107, 422.204
• 70A Am. Jur. 2d, Social Security and Medicare, §§ 184-205 (1987)

Source

• Landing page: https://ncdoj.gov/opinions/marriage-license-eligibility-of-an-alien-to-obtain-a-marriage-license/

Original opinion text

Best-effort transcription from the NCDOJ landing page; the opening paragraphs were not in the scraped capture, so the text below begins where the capture starts. The linked landing page is authoritative.

• N.C.G.S. §§ 51-2 and 51-3. These requirements deal with the age of the unmarried person, when the consent of a parent is required because of the individual's age, and the kinship of those who marry.
• N.C.G.S. § 51-8 addresses the license for marriage which is issued by the appropriate register of deeds. The General Assembly in 1997 amended § 51-8 mandating: "Each applicant for a marriage license shall provide on the application the applicant's social security number. The register of deeds shall not issue a marriage license unless all of the requirements of this section have been met." Session Laws 1997-433, s. 4.5; Sessions Laws 1998-17.

Social security numbers are mandated by federal law of every citizen or national of the United States who is employed or who earns income from self-employment. The individual's name and social security number identifies the individual's record so that wages or self-employment income reported can be properly posted to the individual's record. The social security number is also used when determining entitlement to benefits. See, 42 U.S.C. §§ 405 and 408; 20 CFR §§ 422.103 and 422.107; 70A Am. Jur. 2d, Social Security and Medicare, §§ 184-205 (1987). Aliens are not eligible to receive a social security number unless admitted "for permanent residence or under other authority of law permitting them to engage in employment in the United States. . . ." 42 U.S.C. § 405 (c)(3)(B)(ii) and 20 CFR §§ 422.204 and 422.107.

The General Assembly amended § 51-8 to comply with federal law requiring stricter and more efficient means of enforcement of child support laws. See, 42 U.S.C. § 666 (a)(13)(A), which requires that the social security number of "any applicant for a professional license, driver's license, occupational license, recreational license, or marriage license be recorded on the application." Obviously, where a citizen or national of the United States marries, has children, and fails to lawfully provide support, if the defaulting parent is a wage earner, he or she is required to have a social security number and can be more readily located through access to the social security number.

As earlier noted, aliens may not lawfully receive a social security number unless admitted "for permanent residence or under other authority of law permitting them to engage in employment in the United States . . . ." 42 U.S.C. § 405 (c)(2)(B)(i)(I) and 20 CFR §§ 422.104 and 422.107. To read § 51-8 in such a way that would deny an alien a marriage license because he cannot provide a social security number which he may not legally obtain would make a mockery of the law. Certainly, that was not the intent of Congress or the General Assembly.

In conclusion, where the register of deeds is satisfied that the applicant is an alien who has not come to the United States for the purpose of establishing a permanent residence or for the purpose of engaging in employment, and who otherwise meets the lawful requirements for a marriage license, the register of deeds should issue the license. We suggest that the applicant provide the register of deeds with proof of citizenship of a foreign country and a sworn affidavit setting forth the necessary facts whereby the Register is satisfied that the individual would be ineligible to receive a social security number, i.e., that the applicant is a citizen of a foreign country, is not a citizen or national of the United States, and that the purpose for being in the United States is neither to establish a permanent residence nor to engage in employment, but to get married.

Should you have any questions, please feel free to contact us.

signed by:

Andrew A. Vanore, Jr., General Counsel