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Elderly, Immigration, Indian Law
Free Passage Rights of North American Indians Born in Canada
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Free Passage Rights Of North American Indians Born In Canada Under The Jay Treaty And 8 U.S.C.A. § 1359 



  • The Jay Treaty of 1794 between the United States and Great Britain recognized the right of North American Indians to cross the international border between Canada and the United States. 
  • Some historians and legal scholars argue that the treaty was abrogated by the War of 1812, but modern jurisprudence continues to reference the Jay Treaty in their analysis of North American Indian free passage rights.
  • The signing of the Treaty of Ghent in 1814 reinstated the free passage rights of North American Indians that may or may not have been abrogated by the war.
  • The Immigration Act of 1924 caused North American Indians some problems crossing the border, since it failed to mention or recognize the right of free passage.
  • In April of 1928, Congress added the free passage right of North American Indians into 8 U.S.C.A. § 1359 in response to the Immigration Act of 1924, which restricted access to the United States. 
  • 8 U.S.C.A. § 1359 states, “Nothing in this subchapter shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.”

Who Is Entitled To Free Passage Rights As A North American Indian Born In Canada?

  • A North American Indian from a First Nations Band or Inuit, who can show at least 50% Indian Blood.

  • This does not include non-Indians adopted into North American Indian families but only those individuals possessing 50% or more Indian blood per centum.

  • The Métis are generally not allowed free passage rights; however, in some cases, documents of Métis descent combined with other documentation may satisfy the statutory blood requirement.


What Documents Must Be Produced To Establish Oneself As A Qualifying Canadian Born North American Indian?

  • Canadian Birth Certificate (long form)

  • Documentation either from the Ministry of Indian and Northern Affairs or a written statement from an official of the tribe from which you or your ancestors originate - substantiated by documentary evidence (tribe records and civil long form birth certificate bearing names of parents). Such a statement would be on the tribe's official letterhead and should explicitly state what percentage North American Indian blood you or your parents possess, based on official documents/records.

  • Photographic identification, such as a driver's license, tribal identification card or passport.

  • Under the Western Hemisphere Travel Initiative (WHTI), a higher standard of identification is required. The Department of Homeland Security continues to accept prior issued photo identification tribal cards until better complying cards are available. The better card is a proposed Secure Certificate of Indian Status (SCIS) card that are anticipated during 2010.

What Do Free Passage Rights For North American Indians Mean Today?

You have the right to:
  • Cross the US/Canada Border freely.
  • Live and work in the US.
  • Be eligible for public benefits, such as Medicaid, Supplemental Security Income (SSI), Medicare, Unemployment Benefits and other Public Assistance, provided you meet the appropriate agency guidelines.
  • Register for college or university as a “domestic student” in the US.
You are not exempt from paying duties on goods when crossing borders.
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DISCLAIMER: This information is not legal advice. If you have a legal problem, you should talk to a lawyer and ask for advice about your options.
July 2010
Published by Legal Services of North Dakota
LSND would like to thank UND Law Student John Ward for his significant contribution to this brochure.


Immigration Fee Waivers
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Immigration application fees are very expensive.  Fee waivers can be requested for some applications.


Fee Waivers are only accepted for the following forms.

  • Biometrics
  • Form I-90 (Replace Green Card)
  • Form I-485 (Green Card) but only for applicants with U and T visas, asylees and refugees, and approved VAWA self-petitioners
  • Form I-751 (Remove conditions on residence)
  • Form I-765 (Work Permit)
  • Form I-817 (Benefits under “Family Unity” program)
  • Form N-300 (Permanent Resident to apply for a Declaration of Intention to become a U.S. Citizen)
  • Form N-336 (To Request a hearing on an unfavorable decision on a naturalization application)
  • Form N-400 (Naturalization)
  • Form N-470 (Permanent resident who must leave the United States and does not want to lose status as an immigrant for the purpose of naturalization)
  • Form N-565 (Replacement of Naturalization/Citizenship Document)
  • Form N-600 (Certificate of US Citizenship status from citizen parentage)
  • Form N-600K (Claim U.S. Citizenship based on parentage for a non U.S. resident child)
  • Form 1-290B (Appeal or seek to reopen or reconsider a USCIS decision on one of the above applications)


Specifically request a fee waiver, with reasons why it should be approved, at the time one of the forms listed above is sent to USCIS.

Reasons USCIS will consider in deciding a fee waiver include:

  • You receive or were eligible to receive public benefits within the last 180 days (eg—Food Stamps, SSI, Medicaid, TANF)
  • You are age 65 or older
  • You are disabled or in a long term care facility
  • You have limited or fixed income
  • Number and age of dependents, if immigration application is for the children
  • Hardship

All the reasons given for a fee waiver request, must have paperwork to support them.


If it is denied, you must apply again and pay the fee at the same time.

If it is returned there is a letter that tells you what additional information is needed and what you need to do. You may not need to reapply, just send in the requested information.


Call Our Toll-Free Number: 1-800-634-5263 Monday, Tuesday, and Thursday from 9:00 a.m. to 3:00 p.m. If you are 60 years of age or older, call 1-866-621-9886 Monday through Thursday from 8:00 a.m. to 5:00 p.m.  Friday from 8:00 a.m. to 2:00 p.m.

2. Apply online at


INTERPRETERS Are Always Provided AT NO COST To The Client, By Telephone or During Office Visits.


DISCLAIMER: This information is not legal advice. If you have a legal problem, you should talk to a lawyer and ask for advice about your options.

April 2010

Domestic Violence, Immigration
Immigration Self-Petitions For Victims Of Domestic Violence
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Are You A Noncitizen Spouse Who Is Or Has Been A Victim of Domestic Violence?

If you do not have a green card you may still be able to get your green card without the co-operation of your spouse by filing a Self Petition on form I-360 with the United States Citizenship and Immigration Services (USCIS)

Your alien status can be Documented OR
undocumented to file this Petition.


What is a spouse?

A spouse is a husband or a wife.

What is a self petitioner?

A self petitioner is the person completing form I-360, a Self Petition asking USCIS for protection from abuse and deportation when needing to leave an abusive situation.  A self petitioner can file for his or her self or for children under age 21, who are being abused.

 What is abuse?  

For an I-360 Self Petition, abuse is domestic violence - being beaten or physically hurt, or forced sexual actions.  It also includes extreme cruelty, which can mean threats of serious harm, severe mental cruelty or similar types of actions by the abusive spouse.

Who May File?

1.   An abused spouse of a United States citizen (USC) or a legal permanent resident (LPR).

2.   An abused child under the age of 21 of a USC or LPR.

3.  A non abused spouse of a USC or LPR whose child is abused by a USC or LPR spouse.

4.  An abused parent of a USC son or daughter age 21or older.

There is NO FILING FEE for those persons listed above.

What You Will Need To Prove:

  • That the abuse occurred during the marriage.
  • That the self-petitioner suffered abuse while living with the abuser.
  • That the abuse meets the definition of battery or extreme cruelty.
  • That the abuser and self-petitioner were legally married.
  • That the abuser spouse is or was a USC or LPR.

  • That a self-petitioner’s marriage was a “good faith” marriage.
  • That the self-petitioner resides in the United States or was subject to abuse when living in the United States.
  • That the self-petitioner is a person of good moral character.

Documentation Required

If you cannot get some or all of the documents you need for your self-petition, do not get discouraged. USCIS will consider any credible evidence, such as:

  • Sworn statements from friends; support letters from church members, employers, community members or agencies, and friends, your child’s school records, letter and cards.
  • Filing a self-petition (I-360) involves hard work, lots of time, patience, and paperwork.
  • You should contact an immigration attorney to see whether you are eligible to file a self-petition.


Two Ways To Apply For Services:


1. Call the Toll-Free Number: 1-800-634-5263 Monday through Thursday from 9:00 a.m. to 3:00 p.m.

     If you are 60 years of age or older, call 1-866-621-9886 Monday through Thursday from 8:00 a.m. to 5:00 p.m. Friday from 8:00 a.m. to 2:00 p.m.


2.  Apply online at


INTERPRETERS Are Always Provided AT NO COST To The Client, By Telephone Or During Office Visits.

DISCLAIMER: This information is not legal advice.  If you have a legal problem, you should talk to a lawyer and ask for advice about your options

August 2011


Becoming A United States Citizen
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  • You cannot be removed (deported) from the U.S. for any reason.
  • You can get a U.S. Passport for traveling.
  • You can vote.
  • Your minor children born abroad who came to the U.S. with you will automatically become U.S. citizens by law.
  • You will be eligible for Social Security and other public benefits that are stopped after you have been in the U.S. for seven years without becoming a U.S. citizen.
  • You will have preference when petitioning for family members abroad who are waiting to come to the U.S.


  • You may request a waiving of the filing fees from U.S. Citizenship and Immigration Service (USCIS).


  • All applicants for naturalization must be able to speak, read, and write English.
  • All applicants must take a U.S. civics, and history test.
  • For limited reasons, applicants with disabilities may qualify for a Medical Waiver to bypass the testing requirements.


  • If you do not have the documentation required by USCIS because the papers were lost before arriving in the United States or your home country does not keep or issue vital records, you should still apply.
  • Other documents are acceptable to USCIS, including Affidavits of Birth, Marriage, or Divorce. Many times you can use documents you have acquired since your move to the United States.

The Naturalization Process Can
Take Over a Year, SO DO IT NOW!


If requested, USCIS will process your applicatino much faster so you can get Social Security.

The law requires that after you have been in the United States for seven (7) years and have not become a citizen, you will not be eligible to receive Social Security or you will lose any Social Security benefits you receive.

Are You Afraid To File For Citizenship Because You Have Had Trouble In The Past With The Law?



If you have some doubts about applying for citizenship or if you have had any of the following problems, seek the advice of an immigration attorney before applying for naturalization:

  • ANY criminal violations and arrests since you arrived in the United States;
  • History of domestic violence or violation of a Protection Order;
  • Tax problems, such as unpaid taxes, failure to file taxes, or accusations of fraud with your tax returns;
  • Unpaid child support;
  • Immigration fraud at the time of entry;
  • False claims to U.S. citizenship;
  • Voting or registering to vote in a U.S. election; or
  • Abandonment of your legal permanent resident status.


  1. Call Our Toll-Free Number: 1-800-634-5263 Monday, Tuesday and Thursday from 9:00 a.m. to 3:00 p.m. If you are 60 years of age or older, call 1-866-621-9886 Monday through Thursday from 8:00 a.m. to 5:00 p.m.  Friday from 8:00 a.m. to 2:00 p.m.
  2. Apply online at

INTERPRETERS Are Always Provided AT NO COST To The Client, By Telephone or During Office Visits.

Disclaimer: This information is not legal advice. If you have a legal problem, you should talk to a lawyer and ask for advice about your options.

September 2011