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STATE DEPARTMENT MEMOS ADDRESS UNLAWFUL PRESENCE RULES 
In two recent memos, the State Department addressed the application of sections of the Immigration and Nationality Act dealing with unlawful presence in the US.  One memo dealt with applications for adjustment of status, the other with applications for a change of or extension of nonimmigrant status. 
Adjustment of status memo 
The memo begins by noting when an applicant for adjustment needs to be concerned with unlawful presence.  Generally, an adjustment applicant’s presence in the US is authorized, and even if their underlying nonimmigrant visa expires, they do not accrue unlawful presence.  However, if the adjustment application is not submitted until after the alien has received a notice to appear for removal proceedings, the alien’s presence in the US is not authorized, except in cases where the nonimmigrant was admitted for the duration of their status. 
Normally, consular posts would not have to deal often with issues involving adjustment of status.  A person who is adjusting status within the US does not need to apply for an immigrant visa at a consulate.  However, there are some recent changes that make it more likely consulates will encounter people with pending adjustment applications.  First, the INS decision to allow people with H or L visas and pending adjustment applications to enter the US on the visa rather than requiring advance parole will mean more adjustment applicants will be seen at consulates.  Second, the lengthy delays in processing adjustment applications means more and more people are seeking to switch to consular processing.  Also, there are always situations where the adjustment applicant must leave the US for some reason and will be deemed to have abandoned the adjustment application, meaning they must seek an immigrant visa at a consulate. 
The memo makes clear to consular officers that a person with a pending adjustment application does not accrue unlawful presence while the application is pending, even if it is subsequently abandoned or denied.  
Of course, for the rule that unlawful presence does not accrue to apply, the adjustment application must have been properly filed.  This means the necessary forms must all be properly completed and signed and submitted with the correct fee.  In the event that these technical requirements are met, but the application does not appear to have a basis in law (for example, the alien appears ineligible for any immigrant category) the case should be referred to the State Department Visa Office for an advisory opinion. 
One way in which the unlawful presence rule is especially important is in combination with section 245(i), which allows a person who has not maintained proper status in the US to nonetheless apply for adjustment of status.  While the alien has accrued unlawful presence prior to filing the adjustment application, after it is filed, the accrual of unlawful presence stops.  This is very important because a person must have at least 181 days unlawfully present in the US for the bar to admission to apply. 
Nonimmigrant visas 
The rules set forth in this memo are increasingly important as processing times for nonimmigrant visas become longer. 
When an alien submits an application to extend their nonimmigrant status or change to another nonimmigrant status they do not accrue unlawful presence and will be considered to be in a period of authorized stay so long as these conditions are met:<ぐ颵ᇏ芻ꨀ봀௎噓�۷?譗Ѿ੷譟廎沔> 
·        The alien was lawfully admitted to the US 
·        The application was not frivolous and was timely filed 
·        The alien did not engage in unauthorized employment 
This rule protects aliens who stay beyond the date marked on their I-94.  So long as the nonimmigrant application is filed before that date, they will not accrue unlawful presence if the application is approved, or if they leave the US before it is denied. 
For the nonimmigrant application to have this effect, it must not be frivolous.  An application is nonfrivolous if it has an arguable basis in law and is not filed for an improper purpose.  It is not necessary that the INS would approve the application.  An application is timely filed if it is submitted before the expiration of the I-94.  Unauthorized employment will not usually be a problem when the applicant was filing to extend their work visa.  In these cases, the applicant can continue to work for the employer for up to 240 days, unless the application is denied before then.  If the applicant is filing to change status from a category that does not authorize work to one that does the alien cannot work until the application is approved and any work performed before then will be considered unauthorized.