Omanghana
A major United States immigration ruling has changed how international travel on Advance Parole is treated for certain noncitizens who previously accumulated unlawful presence.
On August 13, 2026, the Board of Immigration Appeals issued its precedent decision in Matter of Delcarmen-Lara, ruling that leaving the United States with Advance Parole counts as a “departure” for purposes of the unlawful-presence provisions of the Immigration and Nationality Act.
Consequently, some immigrants who travel after August 13 may trigger three- or 10-year inadmissibility bars, even when the US government approved their Advance Parole document before they left.
Who Could Be Affected?
The change may affect noncitizens who accumulated more than 180 days of unlawful presence before travelling abroad.
This could include some people who:
- Overstayed a visa or authorized period of stay
- Entered the United States without inspection
- Received DACA after previously accumulating unlawful presence
- Have a pending Adjustment of Status application
- Obtained Advance Parole through a humanitarian or other immigration program
However, merely being undocumented does not automatically establish the precise amount of unlawful presence for this law. Age, prior immigration applications, protection claims, deferred action and other circumstances can affect how unlawful presence is calculated.
DACA recipients, for example, generally do not accumulate unlawful presence while their deferred-action period is valid, but unlawful presence accrued before DACA may remain relevant.
Three-Year and 10-Year Bars Explained
Section 212(a)(9)(B) of the Immigration and Nationality Act imposes different periods of inadmissibility based on the amount of unlawful presence accumulated before departure.
| Unlawful presence before departure | Potential consequence |
|---|---|
| More than 180 days but less than one year | Three-year inadmissibility bar |
| One year or more | 10-year inadmissibility bar |
These bars can prevent a person from being admitted to the United States or approved for permanent residence unless an exception or waiver applies.
The rules are not the same as the separate “permanent bar” that may apply in some cases involving unlawful re-entry or attempted re-entry after accumulating significant unlawful presence.
What Changed Under the New Decision?
For approximately 14 years, immigration adjudicators relied on the 2012 precedent known as Matter of Arrabally and Yerrabelly.
Under that decision, a temporary trip authorized by Advance Parole was not treated as a statutory departure for the purpose of triggering the three- and 10-year unlawful-presence bars.
The reasoning was that travel with Advance Parole was different from an ordinary departure because the government had already authorized the person to seek parole back into the country and continue pursuing an immigration application.
The Board of Immigration Appeals has now expressly overruled that precedent.
In Matter of Delcarmen-Lara, the Board concluded that the immigration statute does not create an Advance Parole exception to the ordinary meaning of “departure.” It held that temporarily leaving with Advance Parole can therefore activate an unlawful-presence bar.
The full precedent decision is available from the US Department of Justice.
New Rule Applies Prospectively
The Board stated that its new interpretation would apply prospectively rather than retroactively.
That distinction is important. The ruling recognized that immigrants had relied on the previous precedent for many years and that applying the new rule to earlier travel could impose a substantial burden.
The critical legal question may therefore include when the relevant departure occurred. USCIS identifies August 13, 2026, as the effective date of the change.
People who travelled before that date should still obtain individualized legal advice, particularly if they have a removal order, multiple entries, previous immigration violations or other possible grounds of inadmissibility.
An Approved Document Does Not Guarantee Re-entry
Advance Parole authorizes a person to travel to a US port of entry and request parole. It does not guarantee that Customs and Border Protection will permit that person to enter.
A traveler may still be questioned, refused parole or found inadmissible because of unlawful presence or another immigration issue.
The new ruling creates a particularly difficult situation for people who already hold valid Advance Parole documents. The existence of an approved document does not necessarily protect them from the consequences announced in Matter of Delcarmen-Lara.
Possible Impact on Green Card Applications
The ruling can also affect Adjustment of Status applications.
An applicant for permanent residence must generally establish that they are admissible to the United States. If international travel triggers a three- or 10-year bar, the person could face problems not only at the border but also when USCIS considers the pending green-card application.
Some applicants may qualify for an unlawful-presence waiver. Eligibility depends on the immigration category, family relationships, hardship requirements and other facts.
A waiver is not automatic, and Advance Parole itself is not a waiver.
Travelers Urged to Obtain Legal Advice
Noncitizens with any history of unlawful presence should avoid travelling solely on the assumption that an approved Advance Parole document guarantees a safe return.
Before leaving the country, they should have a qualified US immigration lawyer review:
- Their complete entry and exit history
- Previous visa overstays
- Time spent without lawful status
- DACA, TPS, asylum or other applications
- Existing removal or deportation orders
- Eligibility for Adjustment of Status
- Possible waivers and other grounds of inadmissibility
People who are already outside the United States should seek legal advice immediately rather than attempting to resolve the situation through informal social-media guidance.
USCIS has updated its public guidance to reflect that Advance Parole travel after August 13, 2026, is considered a departure for unlawful-presence inadmissibility purposes. USCIS guidance
The ruling does not mean that every Advance Parole traveler will receive a three- or 10-year bar. It does mean that anyone who may have accumulated more than 180 days of unlawful presence now faces a serious legal risk that must be assessed before international travel.
Source: Omanghana
