Advance Parole Travel Can Now Trigger the Unlawful Presence Bars

 

On August 13, 2026, the Board of Immigration Appeals (BIA) issued a significant precedential decision that changes the longstanding rules governing international travel on advance parole. In Matter of Delcarmen-Lara, the BIA held that a departure from the United States pursuant to a grant of advance parole is a “departure” for purposes of the three- and ten-year unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act (INA). In doing so, the Board expressly overruled its 2012 decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

For more than a decade, Arrabally and Yerrabelly provided critical protection for many noncitizens with pending adjustment of status applications (Form I-485) or other benefit requests. Under that precedent, temporary travel outside the United States authorized by an advance parole document (Form I-512 or I-512L) was generally not treated as a “departure” that triggered the unlawful presence bars. This allowed individuals who had previously accrued unlawful presence to travel abroad and return without automatically becoming subject to the three- or ten-year bars upon seeking readmission or completing their adjustment.

The BIA reversed course. Relying on the plain language of the statute, the Board concluded that the term “departure” in INA § 212(a)(9)(B)(i) includes travel authorized by advance parole. There is no statutory exception for individuals who leave temporarily under a grant of advance parole and later return after being paroled back into the United States.

As a result:

• A person who has accrued more than 180 days but less than one year of unlawful presence and then departs on advance parole may trigger the three-year bar to admission.
• A person who has accrued one year or more of unlawful presence and then departs on advance parole may trigger the ten-year bar.

Upon return (or when seeking adjustment of status or other admission), the individual may be found inadmissible under INA § 212(a)(9)(B) and may need a waiver (typically Form I-601) to overcome the bar.

Importantly, the BIA stated that its new holding applies prospectively. Travel that occurred before August 13, 2026, under the prior Arrabally framework should not be treated as triggering the bars based on this decision. However, any departure on or after August 13, 2026, is subject to the new interpretation.

USCIS has already posted an alert on its Policy Manual reflecting the decision and warning that individuals with valid advance parole documents who are considering departure should be aware of the potential consequences if they have accrued more than 180 days of unlawful presence.

This ruling is especially relevant for:

• Individuals with pending adjustment of status applications who previously accrued unlawful presence.
• Certain DACA recipients and other deferred-action beneficiaries who travel on advance parole.
• Anyone relying on advance parole while an application is pending and who has a history of unlawful presence (generally counted after age 18).

Advance parole itself has not been eliminated. USCIS continues to issue advance parole documents, and authorized travel remains possible. What has changed is the legal consequence of that travel for those with prior unlawful presence.

If you currently hold a valid advance parole document or are considering applying for one:

• Do not assume that travel is risk-free simply because the document was approved.
• Carefully evaluate any prior periods of unlawful presence before departing the United States.
• Consult experienced immigration counsel to assess whether a departure would trigger a bar and, if so, whether a waiver is available and advisable.
• In many cases, remaining in the United States until the underlying application is adjudicated may be the safer course.

This is a rapidly developing area. Additional guidance from USCIS or further litigation may clarify implementation details, including how the prospective rule will be applied in pending cases.

At Pawlik Law Group, P.C., we are closely monitoring this decision and its impact on clients with pending applications. If you have questions about advance parole, unlawful presence, adjustment of status, or potential waiver options, please contact our office to schedule a consultation. We are committed to providing clear, up-to-date advice so you can make informed decisions about your case.

This article is for informational purposes only and does not constitute legal advice.