Accruing Unlawful Presence
Sometimes you will not have accrued unlawful presence even if you were in the U.S. in violation of your visa. A common scenario is when a student enters with “D/S” on his or her I-94. In such a scenario that person did not begin accruing unlawful presence until or if an Immigration Judge or USCIS finds a nonimmigrant status violation. A less common scenario is when an immigrant has been in the U.S. for more than 180 days accruing unlawful presence but then is given voluntary departure before having 365 days of unlawful presence. The way the law is written this person actually would not be inadmissible, the May 6, 2009 Neufeld Memo discusses many of these scenarios.