How “American Indians Born in Canada” Can Live & Work in the U.S.

Indigenous Canadians can obtain United States permanent residency (a “Green Card”) immediately upon entry to the U.S. if they can demonstrate that they have at least 50% of what the Americans call “American Indian blood.” This allows these Indigenous Canadians, known in U.S. law as “American Indians born in Canada,” to bypass other U.S. immigration laws.

Green Card eligibility presents opportunities for individual Indigenous Canadians to live and work in the U.S. and for Canadian businesses to deploy Indigenous employees to the U.S. to work in capacities that other Canadians cannot. For instance, under U.S. law, it is difficult to get U.S. visas for Canadian tradespeople. However, Canadian tradespeople who qualify as an “American Indian born in Canada,” can take on projects in the U.S. on behalf of their employers.

History of U.S. Policy on “American Indians Born in Canada”

The right of “American Indians born in Canada” to move freely between Canada and the United States dates back to the Jay Treaty between Great Britain and the United States in 1794. The right was reiterated in the 1814 Treaty of Ghent, and prior to 1924, Canadian-born “American Indians” were allowed to cross the U.S.-Canadian border without regulation.

Following the passage of the U.S. Immigration Act of 1924, Congress clarified in 1928 that the right of “American Indians born in Canada” to pass the borders of the United States remained intact.

Who Qualifies?

In the current U.S. Immigration and Nationality Act (the “Act”) contained in the United States Code of Federal Regulations, the term “American Indian born in Canada” is limited to “only persons possessing 50 per centum or more of the blood of the American Indian race.”[1] An “American Indian” born in Canada who can satisfy that standard is regarded as a lawful permanent resident of the United States.[2]

The determination as to whether an individual qualifies as an “American Indian born in Canada” will be determined strictly based on that individual’s blood quantum. While individuals who maintain Indian status under the Canadian Indian Act could potentially qualify, the registration provisions under the Indian Act are not premised on blood quantum. As such, a person who is a status Indian under the Indian Act will not automatically qualify as an American Indian born in Canada.

U.S. courts have been clear that the test set out in the Act must be applied objectively rather than subjectively: whether a Canadian-born person identifies himself or herself or is viewed by others as an “American Indian” is insufficient to meet the statutory test. The individual must produce evidence from which it can reasonably be concluded that the person possesses at least 50 per centum of “American Indian” blood.

How Does an Indigenous Canadian Qualify for a Green Card?

U.S. Citizenship and Immigration Services provides an overview of the eligibility criteria and how to qualify for the Green Card. There two ways for an American Indian born in Canada to qualify:

  1. Upon entering the U.S., tell the customs officer that you are an “American Indian born in Canada” and that you seek to enter to reside permanently in the U.S; or
  2. If you already live in the U.S., you may obtain a Green Card by requesting a “creation of record” of your status and eligibility to live permanently in the U.S.

In either case, an applicant must have proof of ancestry based on familial blood relationship to parents, grandparents and/or great-grandparents who are or were registered members of a Canadian Indian Band or U.S. Indian Tribe. This documentation must come from the official Band government or Indian and Northern Affairs Canada (now Indigenous Services Canada). Other specific documentary requirements include: government-issued photo identification and a long form Canadian birth certificate.

Applicants already living in the U.S. seeking a creation of record must make an appointment to attend at a customs office and provide the appropriate documentation.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

[1] 8 C.F.R. 289.1.

[2] 8 C.F.R. 289.2.