Can you accrue unlawful presence if admitted as a B-2 and annotated by CBP as "N/C" (Non-Controlled)?

Question: I am a Canadian citizen. I was recently denied entry into the U.S. because CBP stated that I was inadmissible for a ten-year period due to a previous period of unlawful presence.  

Several years ago, I entered the U.S. in B1/B2 status. On my passport, Customs and Border Protection (“CBP”) did not stamp a date by which I had to depart, but rather CBP stamped my passport with the designation: “N/C”. During that stay, I remained in U.S. for three (3) years (volunteering for my church). 

In April, I tried to enter the U.S. with my R-1 Approval Notice issued by USCIS. After being questioned by CBP, I was denied entry into the U.S. and found inadmissible due to “unlawful presence.” CBP officers informed me that since I overstayed my B1/B2 status, I am now inadmissible to the U.S. for ten (10) years and must apply for a waiver if I want to enter within that ten-year period.

Did I accumulate unlawful presence even though there was no date stamped on my passport telling me when I had to depart the U.S? Will I need a waiver? If so, which one and how long does it take?

Answer: Given the brief facts you have stated, while I can provide you with some general advice, I cannot provide you with a detailed professional analysis without learning more about your case.

Your question about the designation of “N/C” on your passport and its relation to “unlawful presence” highlights how some Canadians are not given a specific date to leave the United States.

Generally, when a foreign national enters the U.S. on a nonimmigrant visa, they are be given an authorized time period in which they may remain. Once that time period has ended, if they have not otherwise sought to extend/change their status, they must depart the U.S.  If they do not depart the U.S., any periods of unlawful overstay could result in a "unlawful presence" bar which may prevent them from re-entering the U.S. for a given time period.

Based on the amount of days the foreign national has overstayed, they may be subject to a three-year or ten-year bar. Pursuant to INA § 212(a)(9)(B)(i)(I), a foreign national is inadmissible for three (3) years if he or she was unlawfully present in the U.S. for more than 180 days but less than one (1) year, and who voluntarily departed prior to the initiation of removal proceedings.   Pursuant to INA § 212(a)(9)(B)(i)(II), a foreign national is inadmissible for ten (10) years if he or she was unlawfully present in the U.S. for one (1) year or more. Finally, INA § 212(a)(9)(C)(i)(I) renders a foreign national inadmissible who has been unlawfully present in the U.S. for an aggregate period of more than one (1) year, and who enters or attempts to reenter the U.S. without being admitted.

The period of stay for a nonimmigrant may end on a specific date or may continue for “duration of status (D/S).”  A foreign national admitted as a nonimmigrant for a specific date will generally begin to accrue a period of unauthorized stay the day following the date that his or her authorized period of admission expires. The date of a foreign national’s authorized period of stay can be found on the Form I-94, Arrival/Departure Record.

A foreign national admitted as a nonimmigrant for duration of status (D/S), however, does not begin to accrue unlawful presence until one of the following takes place: (1) United States Citizenship and Immigration Services “USCIS” makes a finding that the foreign national has violated his or her status; or (2) an immigration judge makes a determination that there was a status violation.

You indicate that your passport was stamped with the designation “N/C.”  Foreign nationals who are designated as “N/C” or “Non-controlled” are treated the same as nonimmigrants admitted in “D/S” when it comes to determining unlawful presence.  This is quite normal when it comes to Canadians.  Therefore, while I cannot say for certain that you did not accrue unlawful presence, it is very possible based on the information you provided in your question that you might not have accrued unlawful presence.

I encourage you to call our office so that we can review your case in greater detail. If, as it appears, you have not accrued unlawful presence, you will not be subject to the ten-year bar and will not be required to apply for a nonimmigrant waiver. If you are subject to the unlawful presence bar, then you would need to apply for a non-immigrant waiver of inadmissibility by filing a Form I-192 with CBP, which is currently taking the Admissibility Review Office (ARO) approximately 4-6 months to adjudicate.