Chapter 5 - Other Special Laws

A. American Indians Born in Canada

1. Purpose and Background

Section 289 of the Immigration and Nationality Act (INA) provides that American Indians who are born in Canada cannot be denied admission into the United States if they possess at least 50 percent American Indian blood. By regulation, noncitizens who are eligible for INA 289 status may also become lawful permanent residents (LPRs) if they have maintained residence in the United States since their last entry.[1]

Texas Band of Kickapoo Indians

Certain members of the Texas Band of Kickapoo Indians, which is a subgroup of the Kickapoo Tribe of Oklahoma, also cannot be denied admission to the United States. However, INA 289 is not the statutory basis for the treatment of members of the Texas Band of Kickapoo Indians which is authorized by a separate statute.[2]

2. Legal Authorities

3. Eligibility Requirements

A noncitizen who proves that he or she is an American Indian born in Canada, with at least 50 percent American Indian blood, cannot be denied admission to the United States at a port of entry. If a noncitizen with at least 50 percent American Indian blood lives outside the United States and seeks to enter the United States, he or she must tell the Customs and Border Protection officer that he or she is an American Indian born in Canada and provide documentation to support that claim.

Noncitizens who live in the United States and are American Indians born in Canada who possess at least 50 percent American Indian blood are entitled to evidence of LPR status if they can establish that they have maintained residence in the United States since their last entry.[3] They may obtain a Permanent Resident Card (PRC)[4] by requesting a creation of record at a USCIS Field Office. As with presumption of lawful admission cases,[5] USCIS is not adjudicating an application to become an LPR, but verifying a status which the person already has and issuing documentation accordingly.

4. Documentation and Evidence

To obtain a PRC, claimants must demonstrate:

  • 50 percent or more of blood of the American Indian race;

  • Birth in Canada; and

  • Residence in the United States since last entry. [6]

Claimants must have proof of ancestry based on familial blood relationship to parents, grandparents, or great-grand parents who are or were registered members of a recognized Canadian Indian Band or U.S. Indian tribe. Usually, eligibility is established by presenting identification such as a tribal certification that is based on reliable tribal records, birth certificates, and other documents establishing the requisite percentage of Indian blood.

The Canadian Certificate of Indian Status (Form IA-1395) issued by the Canadian government[7] specifies the tribal affiliation but does not indicate percentage of Indian blood. Membership in an Indian tribe or First Nation in Canada does not necessarily require Indian blood.

Noncitizens are not eligible for permanent residence if tribal membership comes through marriage or adoption.

For additional information on how to request creation of a record and proof of permanent residence, see the Green Card for an American Indian Born in Canada web page.

5. Decision

Approval

Upon establishing that the claimant is an American Indian born in Canada, with at least 50 percent American Indian blood, who has maintained residence in the United States since his or her last entry, the claimant is entitled to creation of a record of admission for lawful permanent residence, even if technically inadmissible or previously deported.[8] USCIS issues a PRC accordingly. A claimant is not required to file any application or pay any fees as part of this process.

If DHS records show that the claimant has already been accorded creation of a record of admission for lawful permanent residence and issued a PRC, an officer should advise the applicant that he or she must file an Application to Replace Permanent Resident Card (Form I-90), and pay the filing fee required.[9]

Denial

If the claimant is unable to prove that he or she is an American Indian born in Canada, with at least 50 percent American Indian blood, or prove residency since the last entry, the officer must deny the request and provide a written explanation of the reasons of the denial.[10] There is no appeal from the decision, although the claimant may renew his or her request if and when he or she is able to overcome the basis of the decision. Depending on the circumstances, such a claimant may be referred for consideration of initiation of removal proceedings.

B. [Reserved]

Footnotes


[^ 1] See 8 CFR 289.2.

[^ 2] Members of the Texas Band of Kickapoo Indians typically present themselves for admission at a port of entry. See Texas Band of Kickapoo Act, Pub. L. 97-429 (PDF), 96 Stat. 2269 (January 8, 1983).

[^ 3] See INA 289 and 8 CFR 289.2.

[^ 4] A Permanent Resident Card is also called a Form I-551 or a green card.

[^ 5] See 8 CFR 101.1 and 8 CFR 101.3.

[^ 6] See 8 CFR 289.2.

[^ 7] Since August 2017, the certificates (also known as “INAC cards” or “status cards”) are issued by Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC). For more information, see the CIRNAC webpage.

[^ 8] See Matter of Yellowquill (PDF), 16 I&N Dec. 576 (BIA 1979).

[^ 9] See 8 CFR 103.7(b).

[^ 10] See 8 CFR 103.3.

Current as of October 20, 2021