The Board of Immigration Appeals has held that the three- and ten-year unlawful presence bars under INA § 212(a)(9)(B)(i) continue to run while a noncitizen is in the United States. The Board agreed with policy guidance issued by U.S. Citizenship and Immigration Services in June 2022 and determined that a noncitizen inadmissible for a specified time due to unlawful presence and a subsequent departure is not required to reside outside the United States to overcome this ground of inadmissibility.   

USCIS and the BIA have failed to articulate an official or even consistent interpretation of whether the three- or ten-year period for the unlawful presence grounds must be spent outside the United States after it has been triggered by a departure. This article attempts to spell out the arguments and summarize the current decisions.