Immigration Update: Advance Parole Unlawful Presence and the New BIA Travel Rule
A significant new immigration decision has changed an important rule governing international travel for certain individuals who have previously accrued unlawful presence in the United States.
On August 13, 2026, the Board of Immigration Appeals (BIA) issued its precedent decision in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026). The decision overruled Matter of Arrabally and Yerrabelly, a 2012 BIA decision that had provided an important protection for certain individuals traveling outside the United States with advance parole.
For anyone with a history of unlawful presence who is considering international travel, this change deserves careful attention.
How the BIA Changed Advance Parole Unlawful Presence Rules?
Under U.S. immigration law, certain periods of unlawful presence can result in serious consequences when an individual departs the United States.
Generally, a person who accrues more than 180 days but less than one year of unlawful presence may become subject to a three-year bar to admissibility after departing the United States. A person who accrues one year or more of unlawful presence may become subject to a ten-year bar.
For more than 14 years, Matter of Arrabally and Yerrabelly provided an important exception in the advance-parole context. Under that decision, temporarily leaving the United States pursuant to a grant of advance parole was not treated as a "departure" that triggered the unlawful-presence bar addressed by the BIA.
That rule has now changed.
In Matter of Delcarmen-Lara, the BIA expressly overruled Arrabally and Yerrabelly and held that leaving the United States pursuant to advance parole constitutes a "departure" for purposes of the unlawful-presence inadmissibility provision addressed in the decision.
USCIS has also issued guidance stating that, as of August 13, 2026, departure after obtaining an Advance Parole Document may trigger the three-year or ten-year unlawful-presence bars when the applicable statutory requirements are met.
Does the New Rule Apply to Past Travel?
An important part of the BIA's decision is that the new rule applies prospectively.
The BIA recognized that Arrabally and Yerrabelly had been longstanding precedent and that individuals had relied on that decision when making travel decisions. As a result, the Board declined to apply its new interpretation retroactively in Delcarmen-Lara.
Accordingly, the new rule is particularly important for individuals considering departure from the United States on or after August 13, 2026.
Who May Be Affected?
The decision does not mean that every person with advance parole will automatically become subject to an unlawful-presence bar.
Whether the three-year or ten-year bar applies depends on an individual's specific immigration history, including whether the person actually accrued unlawful presence, how much unlawful presence was accrued, when it occurred, and whether any statutory exception applies.
The decision may nevertheless be particularly important for individuals with advance parole or other travel authorization who have a prior history of unlawful presence, including some:
DACA recipients;
Temporary Protected Status (TPS) beneficiaries;
Applicants for adjustment of status, including certain immediate relatives of U.S. citizens;
Individuals who entered without inspection or remained in the United States after an authorized period of stay expired; and
Other individuals with complex immigration histories who have received authorization to travel internationally.
Membership in one of these categories does not, by itself, establish that a person has accrued unlawful presence or will be subject to a bar. An individualized review is essential.
Advance Parole Is Not a Guarantee of Reentry
This decision also reinforces an important distinction that is sometimes misunderstood.
Advance parole authorizes an individual to seek parole into the United States after temporary travel abroad. It does not guarantee admission or parole upon return, and it does not eliminate other possible grounds of inadmissibility.
USCIS itself cautions that possession of an advance parole document does not guarantee that a traveler will be permitted to return to the United States. A traveler remains subject to inspection by U.S. Customs and Border Protection.
Following Delcarmen-Lara, obtaining advance parole also should not be interpreted as confirmation that international travel will have no effect on a person's unlawful-presence history.
Why This Decision Matters
For individuals who have accumulated significant unlawful presence, a seemingly temporary trip abroad can now have consequences that were not present under the prior BIA rule.
This may be especially important when travel is being considered for:
A family emergency or funeral;
Employment or professional obligations;
Educational purposes;
Humanitarian reasons; or
Other personal circumstances.
The fact that USCIS approved a travel document does not necessarily resolve whether departure will trigger an inadmissibility ground.
Before Traveling, Review Your Immigration History
Individuals who have DACA, TPS, a pending adjustment-of-status application, advance parole, or any prior period of unlawful presence should consider obtaining legal advice before departing the United States.
Among other issues, an immigration attorney may need to evaluate:
When unlawful presence began, if at all;
The total amount of unlawful presence accrued;
Whether any period is excluded from the unlawful-presence calculation;
Prior entries and departures;
Prior removal or immigration court proceedings;
The type of travel authorization issued;
Eligibility for adjustment of status or another immigration benefit; and
Whether any waiver or other form of relief may be available.
These determinations can be highly fact-specific. Two individuals who appear to have similar immigration histories may face very different legal consequences.
Speak With an Immigration Attorney Before International Travel
Matter of Delcarmen-Lara represents a significant change in the law governing advance-parole travel and unlawful presence. Individuals who previously understood advance parole to protect them from triggering an unlawful-presence bar should not assume that the same rule continues to apply to future travel.
If you are considering traveling outside the United States and have DACA, TPS, a pending green card application, advance parole, or a history of unlawful presence, contact our office before making travel arrangements. We can review your immigration history and help you understand the potential consequences of departure before you leave the United States.
Important Legal Disclaimer
This article is provided for general informational and educational purposes only and does not constitute legal advice or create an attorney-client relationship. Immigration laws, regulations, USCIS policies, forms, and filing requirements are subject to change. The public charge rules may apply differently depending on an individual’s immigration category and circumstances. For advice regarding your specific situation, consult a qualified immigration attorney.
Authorities
Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026).
Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), overruled by Matter of Delcarmen-Lara.
INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B).
U.S. Citizenship and Immigration Services, Unlawful Presence and Inadmissibility, updated following Matter of Delcarmen-Lara.
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