Green Cards for Native Americans Born in Canada
Under section 289 of the Immigration and Nationality Act (INA) a Native American Indian born in Canada may be entitled to lawful permanent resident status in the United States if they meet certain requirements. This provision of the INA incorporates one of the agreements contained in the “Jay Treaty” signed between Great Britain and the United States in 1794. The treaty provides that Native Americans may freely trade and travel between the United States and Canada (which was then a territory of Great Britain).
Under INA § 289, a Native American Indian born in Canada who seeks to gain permanent residency in the United States must inform the Customs and Border Patrol (CBP) at the port of entry that he or she is a Native American Indian seeking to live in the United States permanently, and must support that request with documentation. The individual must (1) show a blood quantum of greater than 50% of the American Indian race, and (2) prove that they were born in Canada. The 50% blood quantum is established through proof of ancestry—through the individual’s family relationship through their parents, grandparents, or great-grandparents who were registered members of a recognized Canadian Indian band or U.S. Indian tribe. CBP will generally only recognize documentation of blood quantum provided by an official tribal government or from the Ministry of Indian and Northern Affairs Canada.
For the proof of birth in Canada, CBP will only accept a civil long form Canadian birth certificate bearing the names of both parents. In addition, the individual will need to provide passport-style photographs and a copy of a government-issued photo identification.
Once the claim to 50% blood quantum has been established, the individual will be entitled to creation of a record of admission for lawful permanent residence. Subsequently, they will be issued a permanent resident card (“green card”).
If the individual already resides within the United States, they still need to follow the same process as stated above to request lawful permanent residency. However, instead of making their request at the port of entry with CBP, they would make an appointment with a local USCIS office and provide the same documentation. The role of USCIS in that event would not be to adjudicate the application for permanent residency, but instead to simply verify the status which the individual already possesses, and issue documentation of that status.
The individual’s spouse and children (“derivatives”) cannot obtain lawful permanent resident status unless they individually meet the required blood quantum. However, once the individual obtains permanent residency status, he or she can sponsor a spouse and children. Note that the derivative probably cannot pursue adjustment of status in the United States unless they are already present in a bona fide non-immigrant status. More than likely, the derivative will need to pursue an immigrant visa via consular processing in their country of residence. Furthermore, numerical limitations apply to family-based visas in the second preference category—which includes spouses, children, and unmarried sons and daughters (age 21 and over)—meaning the process will not be immediate and will take time.
If you require assistance with an immigration matter anywhere in the United States, the immigration attorneys at Livesay & Myers, P.C. can help. From our offices in Northern Virginia, we represent clients in Virginia, D.C. and across the United States. Contact us to schedule a consultation today.