THE OKLAHOMA BAR JOURNAL 26 | OCTOBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. THE THREE- AND 10-YEAR UNLAWFUL PRESENCE BARS Under §212(a)(9)(B) of the Immigration and Nationality Act (INA), certain individuals who accrue unlawful presence in the U.S., depart and then apply for admission are subject to penalties known as the three- and 10-year unlawful presence bars. These grounds of inadmissibility apply to three classifications of individuals: 1) individuals who remain inside the U.S. past the expiration of their authorization, 2) individuals who entered without inspection and 3) individuals who knowingly made a false claim of citizenship to obtain permission to enter the U.S. TRIGGERING THE THREE- AND 10-YEAR UNLAWFUL PRESENCE BARS Under §212(a)(9)(B)(i)(I) of the INA, the three-year unlawful presence bar is triggered when a noncitizen, beginning April 1, 1997, 1) was unlawfully present in the U.S. for a continuous period of more than 180 days but less than one year, 2) voluntarily departed from the U.S. before any immigration proceedings commenced and 3) then applied for admission to the U.S. Noncitizens who trigger the threeyear unlawful presence bar are inadmissible for a period of three years from the date of departure.2 Under §212(a)(9)(B)(i)(II) of the INA, the 10-year unlawful presence bar is triggered when a noncitizen, beginning April 1, 1997, 1) was unlawfully present in the U.S. for a continuous period of one year or more, 2) left voluntarily or by deportation/removal and 3) then applied for admission to the U.S. Noncitizens who trigger the 10-year unlawful presence bar are inadmissible for a period of 10 years from the date of departure or removal.3 INTERPRETATION OF THE THREE- AND 10-YEAR PERIODS OF INADMISSIBILITY Over the years, the United States Citizenship and Immigration Services (USCIS) has taken the informal stance that a nonimmigrant is required Immigration Law Duarte-Gonzalez: Overcoming Unlawful Presence Under §212(a)(9)(B) of the Immigration and Nationality Act From Inside the United States By Katelyn Wade ON FEB. 14, 2023, THE BOARD OF IMMIGRATION APPEALS issued a decision in Duarte-Gonzalez, holding that the three- and 10-year unlawful presence bars can continue to run while a noncitizen is inside the United States.1
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