Turns out, he has quite a bit. Because he never received any notice from USCIS, or a judge, that the duration was expired, he is out-of-status, but has not accrued unlawful presence. What, you say!? The actual USCIS memo dealing with this is entitled: "Period of stay authorized by the Attorney General after 120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act (the Act)" written by then Executive Associate Commissioner for the Office of Field Operations, Michael A. Pearson (2000). In pertinent part, it reads:
(2) Counting of Unlawful Presence for Nonimmigrants. An alien who remains in the United States beyond the period of stay authorized by the Attorney General is unlawfully present and becomes subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act. Under current Service policy, unlawful presence is counted in the following manner for nonimmigrants. (A) Nonimmigrants Admitted until a Specific Date. Nonimmigrants admitted until a specific date begin accruing unlawful presence on the date the period of admission authorized by the Service expires, as noted on the arrival document issued at the port-of-entry. (B) Nonimmigrants Admitted Duration of Status (D/S). Nonimmignants admitted to the United States for D/S begin accruing unlawful presence on the date the Service finds a status violation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings. If, however, the immigration judge concurrently issues voluntary departure and the alien complies with the order by making a timely departure, no unlawful presence accrues. See sections (d)(2) and (d)(5) of this chapter regarding voluntary departure as a period of stay authorized by the Attorney General.
Use this information to jam unlawful presence arguments when applying for various USCIS status changes for D/S candidates.
Note that D/S is valid even if served an NTA, as only an immigration judge can stop the duration of the stay - i.e. a mere notice of filing does not trigger a break in lawful presence. Remember, though, that lawful presence is not the same as legal status.
Do you have a question about immigration law? Contact us at 703-402-2723 or 1-800-579-9864. We are here to help!
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