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.

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