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August 13, 2026
GWP IMMIGRATION LAW
Advance Parole Travel Is No Longer Safe: The BIA Changes the Rule in Matter of Delcarmen-Lara
A new precedential decision issued today overrules the fourteen-year-old rule that protected advance parole travelers from the unlawful presence bars.
On August 13, 2026, the Board of Immigration Appeals held in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), that a trip abroad on advance parole is a statutory “departure” under INA § 212(a)(9)(B)(i)(II) — overruling Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Anyone with more than 180 days of unlawful presence who travels on advance parole after today risks the three-year or ten-year re-entry bar.
Updated August 13, 2026 · GWP Law · Las Vegas, NVTHE CONTEXT
Why This Matters Today
For more than a decade, immigration practice rested on a settled premise: a person who traveled abroad under a government-issued advance parole document and returned was not making a statutory “departure,” and therefore did not trigger the unlawful presence bars under INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B). That premise came from Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), and USCIS later extended the same reasoning to the three-year bar as well as the ten-year bar. It is why so many DACA recipients, TPS holders, and pending adjustment-of-status applicants with a history of unlawful presence were able to travel internationally — for a parent’s illness, a family emergency, a once-in-a-lifetime event — and come home without losing their path to a green card.
That premise no longer holds. In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), a three-judge panel of the Board (Deputy Chief Appellate Immigration Judge Gorman, joined by Appellate Immigration Judges Montante and Gallow) expressly overruled Arrabally. The Board held that the plain meaning of “depart” — to go away, to leave — covers any physical exit from the United States, including one made under an approved advance parole document. Because Congress wrote express advance-parole exceptions into other parts of the Immigration and Nationality Act — INA §§ 201(c)(4)(A), 245A(g)(2)(B)(ii), 244(c)(4), and 240A(d)(2) — but wrote no such exception into § 212(a)(9)(B), the Board applied the interpretive canon from Russello v. United States, 464 U.S. 16, 23 (1983): Congress’s omission here was deliberate, not an oversight. The Board also rejected the argument that this result is legally “absurd,” citing Cheruku v. Attorney General, 662 F.3d 198, 207 (3d Cir. 2011), for the proposition that a harsh result is not the same as an absurd one, and that Congress — not the Board — sets that policy.
The one piece of good news: the Board did not apply this rule retroactively. Using the five-factor retroactivity framework from Matter of Cordero-Garcia, 27 I&N Dec. 652, 658 (BIA 2019), the Board found that the bar, burden, and reliance factors weighed against disturbing trips already completed. Advance parole travel completed before August 13, 2026 is not affected. Advance parole travel on or after that date is governed by the new rule.
The Statutory Bars, in Plain Terms
INA § 212(a)(9)(B) sets out two time-based bars, both created by § 301(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Someone who accrues more than 180 days but less than one year of unlawful presence, and then “departs” the United States, is barred from re-admission, from obtaining a visa, and from adjusting status for three years. Someone who accrues one year or more of unlawful presence and then “departs” is barred for ten years. Unlawful presence begins to run from unauthorized entry, from the expiration date on a Form I-94, or from a formal finding of a status violation by USCIS or an immigration judge. Before today, the word “departs” simply did not reach advance parole travel. As of today, it does.
Who Is Most Affected
DACA recipients. Advance parole has long been the tool many Dreamers used to convert an entry without inspection into a lawful parole entry, which in turn supports adjustment of status through a citizen spouse under INA § 245(a) without the need for consular processing abroad. DACA protects against removal, but it does not stop unlawful presence from having already accrued for anyone who turned 18 before receiving DACA or who had a gap in coverage. Under today’s ruling, a DACA recipient in that position who travels on advance parole risks being found inadmissible on return.
TPS recipients. Many Temporary Protected Status holders entered without inspection years before receiving TPS, and relied on an advance parole trip to secure the lawful entry needed to adjust status through a family or employment petition. TPS holders with more than 180 days of pre-TPS unlawful presence now carry the same exposure. This falls unevenly: some federal circuits have held that a grant of TPS is itself a lawful “admission” for adjustment purposes, so TPS holders there were never dependent on advance parole travel in the first place. Where that circuit law does not apply, advance parole travel was often the only route to adjustment — and today’s ruling closes it.
Pending Form I-485 applicants. An adjustment applicant who is otherwise using advance parole simply to preserve a pending case while traveling — and who has more than 180 days of historical unlawful presence from an earlier visa overstay — can now have that same trip used against the application. USCIS can deny the I-485 on inadmissibility grounds under § 212(a)(9)(B) if there is no approved waiver on file.
Source: Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026); Murthy Law Firm, NewsFlash, Aug. 13, 2026.
A REAL CASE
The Trip We Stopped Last Month
A client came to our office earlier this year holding a valid advance parole document and a plane ticket. She had overstayed a visitor visa years earlier, accrued well over a year of unlawful presence before receiving DACA, and her U.S.-citizen husband’s I-130 had since been approved. Her mother back home was seriously ill, and she wanted to go see her before her adjustment interview.
Under the rule as it stood at the time, that trip was low-risk: advance parole travel did not count as a departure for unlawful presence purposes, and her return would have been treated as a lawful parole entry supporting her eventual adjustment under INA § 245(a). We ran the dates, confirmed the analysis, and she traveled and returned without incident. Under the rule announced today, that same fact pattern would now carry real exposure to the three-year or ten-year bar. The only reason it did not is timing — and that is precisely why every advance parole travel plan now needs to be checked against today’s date, not last year’s assumptions.
What To Do Now
Source: INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B); USCIS, Unlawful Presence and Inadmissibility.
THE PATH FORWARD
Binding Law Today, Likely a Fight Tomorrow
Because the Board of Immigration Appeals is an administrative body within the Department of Justice, its decisions are reviewable by the federal Courts of Appeals, and advocacy organizations are already signaling that they intend to challenge this interpretation. Until a Circuit Court or the Supreme Court says otherwise, however, Matter of Delcarmen-Lara is binding nationwide. This is also not the first time USCIS and the Department of State have read Arrabally differently at the consular level — see our clients’ attorneys’ summary of that agency divergence — and today’s decision effectively resolves that disagreement in the government’s favor, not the traveler’s.
This is a fast-moving area of law and today’s decision is hours old at the time of writing. Nothing in this post is legal advice for any specific case, and no communication about this decision should go out to a client without the supervising attorney’s review of that client’s exact immigration history first.
References
- Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), Interim Decision #4233 — EOIR/DOJ
- Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) — EOIR/DOJ
- Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019) — EOIR/DOJ
- Cheruku v. Attorney General, 662 F.3d 198 (3d Cir. 2011) — CourtListener
- USCIS, Unlawful Presence and Inadmissibility
- Murthy Law Firm, “NewsFlash! BIA Holds Advance Parole Travel Can Trigger Unlawful-Presence Bar” (Aug. 13, 2026)
- Federal Register, Civil Monetary Penalties Inflation Adjustments for 2026 (confirming the INA § 274D failure-to-depart penalty remains $998, unchanged from 2025)
- Lexology, “State Department’s Interpretation of Matter of Arrabally and Yerrabelly at Odds with BIA’s”
Considering international travel with advance parole?
Have our office confirm your unlawful presence history before you book anything.
Book a Consultation →This article is for informational purposes only and does not constitute legal advice. Consult a qualified immigration attorney before taking any action. · Last verified: August 13, 2026 · Reviewed by: Kathia Quirós, Immigration Attorney · GWP Immigration Law
