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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, aliens 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

An alien 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 an alien 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.

Aliens 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.

Aliens 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.

Resources

Legal Authorities

No legal authorities available at this time.

Appendices

No appendices available at this time.

Updates

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

Technical Update - Incorporating Existing Guidance into the Policy Manual

This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 1, 3.4, 10.2, 10.3(a), 10.3(c), 10.3(e), 10.3(i), 10.4, 10.22, 11.1(c), 13, 14, 17, 23.8, 31.7, 33.10, 34.5, 35, 41.6, 42, 44, 56.1, 56.3, 56.4, 62, 81, 82, 83.1, 83.2, and 83.3 of the AFM, related appendices, and policy memoranda.

Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

POLICY ALERT - Use of Form G-325A

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A).

Read More
POLICY ALERT - Registration of Lawful Permanent Resident Status

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance addressing registration of lawful permanent resident (LPR) status.

Read More