American Indians born in Canada who declare an intention to live or work in the United States must be granted the freedom to do so under the Jay Treaty. They must go through a registration process. The U.S. Embassy in Ottawa provides the following information:
Subsection 289.3 of the Combined Federal Regulations (8 CFR PART 289) provides guidance requiring that any Canadian-born American Indian who declares an intention to move to the U.S. and reside or work, that upon initial entry at a land-border Port of Entry, they must declare the intention to live and/or work in the U.S., provide CBP with documentation proving American Indian status, and complete an Application to Register Permanent Residence or Adjust Status (Form I-485).
(http://canada.usembassy.gov/visas/information-for-canadians/first-nation...). Immigration regulations require that the person prove 50% American Indian blood quantum to qualify for a green card. Not everyone who has a tribal card can show the requisite blood quantum. Filing an I-485 begins the process in which a Canadian-born American Indian is afforded lawful permanent residence. This process is not an application for status, but is the initial action required to convey the appropriate status authorized under the Jay Treaty.
An excerpt from the Inspector's Field Manual on the process at the border states:
11.3 American Indians Born in Canada.
An American Indian born in Canada, with 50% American Indian blood, cannot be denied admission to the United States. The applicant bears the burden of proof in establishing eligibility. Usually, this is accomplished 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 Department of Indian Affairs in Ottawa specifies the tribal affiliation but does not indicate percentage of Indian blood. Membership in an Indian tribe in Canada does not necessarily require Indian blood. Once the claim to 50% Indian blood has been established, the applicant can freely enter the U.S., regardless of the purpose or duration of the trip, even if technically excludable or previously deported.
If such person is entering to reside permanently in the U.S., Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence, must be executed. The words "Canadian-born American Indian admitted for permanent residence" must be endorsed on the I-181. Under the box marked "Other Law" indicate section 289 of INA. Complete Form I-89, Data Collection Card, including fingerprint , proper photograph, and other required data. The admission classification is S13. An "A" file may be created at the port-of-entry and forwarded to the district office for data entry into Central Index or the I-181 and I-89 may be forwarded directly to the Immigration Card Facility for creation of the file and card production. Issue a temporary I-551 using Form I-94
See USCIS's instructions from the AFM.
http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-8624/0-0-0...
A Canadian-born American Indian cannot be denied LPR status, but is required to complete the I-485 in order to receive any benefits under U.S. federal law. Recipients are entitled to all rights and privileges accorded legal immigrants to the United States, including if they desire, eventual naturalization as American citizens and the right to sponsor immediate family members into the United States. Thanks to Mark R. Barr.
