The Board of Immigration Appeals (BIA) issued a precedential decision on August 13, 2026, holding that a departure from the United States under advance parole is a “departure” for purposes of the three- and ten-year unlawful-presence bars. In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the BIA expressly overruled its 2012 decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). This reversal significantly changes the risk calculus for clients with prior unlawful presence who hold advance parole.
What changed
For more than a decade, Matter of Arrabally and Yerrabelly provided that a temporary trip abroad using advance parole did not constitute a “departure” that triggered these unlawful-presence bars. The new decision overturns that rule entirely.
Under INA §212(a)(9)(B), a foreign national who accrues more than 180 days of unlawful presence and then departs may trigger a three-year bar to admission. A person who accrues one year or more of unlawful presence and then departs may trigger a ten-year bar. The BIA now holds that an individual with sufficient prior unlawful presence may become inadmissible under INA § 212(a)(9)(B) because of travel on advance parole, and may need a waiver before being able to obtain permanent residence or otherwise be admitted.
Why it matters
This precedential decision upends assumptions that many clients and practitioners have relied on for over a decade. Advance parole remains an important travel mechanism for many applicants, including certain adjustment applicants and DACA recipients. However, the BIA’s decision substantially changes the risk analysis for individuals with unlawful-presence concerns.
Any client with a prior period of unlawful presence who departs on advance parole now risks triggering the three- or ten-year bar—potentially blocking a future green-card application or re-entry altogether, absent a waiver. This applies regardless of whether the client’s current immigration petition is approved or pending.
The decision creates a major trap: foreign nationals should not assume that an approved advance parole document protects them from the three- or ten-year bar, and they should carefully assess the immigration consequences of travel before departing.
Way forward
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Conduct a thorough unlawful-presence audit for any client holding advance parole before they travel. Count all periods of unlawful presence, including time before any pending application was filed.
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If prior unlawful presence exceeds 180 days: advise the client that advance parole departure will trigger at minimum a three-year bar; over one year triggers the ten-year bar. Neither waiver availability nor the pending petition will prevent the bar from attaching.
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Consider alternatives to travel: can the client’s family matter, employment necessity, or other travel reason be deferred until after the green card is granted? Once admitted as a permanent resident, re-entry is no longer restricted by the bars.
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If travel is unavoidable: consult with a licensed immigration attorney about waiver eligibility (I-601 or I-601A, depending on the client’s immigration pathway) before the client uses advance parole to depart.
Disclaimer
This article explains general immigration policy and does not constitute legal advice. Immigration law is complex, and the specific facts of each case determine the outcome. Consult a licensed immigration attorney to evaluate your circumstances and verify current law against the authoritative source material. Policy and judicial interpretation can change without notice; you should always confirm current guidance with the BIA decision and relevant USCIS materials before making travel or filing decisions.