Unless the government determines that your asylum application is "frivilous", you are not accruing unlawful presence.
(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
I will think you are not accruing any unlawful presence, however, I will recommend having a good lawyer handling your case to avoid any chances. In fact, we need more facts to give a good answer. I assume your case is in removal proceedings, therefore you are probably represented by counsel.
Shah Peerally, Attorney at Law
President of Shah Peerally Law Group PC
Important: The above is provided for educational purposes only. You should not act or refrain to act solely based on the information provided. Cases differ and success in one case might not constitute guaranty of success in your case. We recommed to talk to a licensed attorney before you proceed. For more information on call us on 510 742 5887
If you are physically present in the U.S. and do not have immigration status then you are accruing unlawful presence. There are a couple of exceptions and one of them is while an asylum case is pending and if you file an adjustment of status case.
I agree with the above posts. If you are still in removal proceedings, you are likely not accruing unlawful presence. However, if you lost your asylum case and haven't appealed (or if you failed to depart after being granted voluntary departure), you might be. Talk with your immigration attorney if you have any questions about this.