Advance Parole? Not Quite: A Major Change Influenced by a BIA Decision

Sep 9

4 min read

For years, many immigrants with pending adjustment of status applications relied on Advance Parole to travel outside the United States without triggering the three- or ten-year unlawful presence bars. A new precedent decision from the Board of Immigration Appeals (“BIA”) has significantly changed that analysis.

On August 13, 2026, the BIA issued Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), overruling its longstanding decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

The decision has potentially serious consequences for individuals who have accrued unlawful presence in the United States and are considering traveling abroad using Advance Parole.

The Major Change

Under INA § 212(a)(9)(B), certain individuals who accrue unlawful presence in the United States may become inadmissible after departing the country.

Generally:

More than 180 days but less than one year of unlawful presence may trigger a three-year bar; and
One year or more of unlawful presence may trigger a ten-year bar.

For more than a decade, Matter of Arrabally and Yerrabelly provided an important protection. The BIA held that an individual who temporarily traveled abroad pursuant to a grant of Advance Parole did not make a “departure” for purposes of triggering the unlawful presence bars.

That rule has now been overruled. In Matter of Delcarmen-Lara, the BIA held that leaving the United States pursuant to Advance Parole is a “departure” for purposes of INA § 212(a)(9)(B)(i)(II). This means that having an approved Advance Parole document does not, by itself, protect an individual from triggering an unlawful presence bar upon departure.

Who Should Be Particularly Cautious?

The decision may affect many noncitizens who are considering international travel, including:

Adjustment of status applicants with pending Form I-485 applications;
DACA recipients with a history of unlawful presence;
Individuals who entered the United States without inspection and later obtained Advance Parole;
Individuals who accrued unlawful presence before obtaining DACA, TPS, or another immigration benefit;
Individuals who already possess an approved Advance Parole document; and
Anyone with a complicated immigration history who intends to leave the United States and return using Advance Parole.

Importantly, simply having been present in the United States without lawful immigration status does not necessarily mean that every day of that presence counts as “unlawful presence” for purposes of INA § 212(a)(9)(B). The unlawful-presence calculation can be complicated and may depend on the individual's age, immigration history, prior applications, periods of authorized stay, and other circumstances.

For this reason, each case should be evaluated individually.

The Impact of Matter of Delcarmen-Lara

The practical consequences can be significant. Consider an individual who accumulated more than one year of unlawful presence before obtaining Advance Parole. Under the prior Arrabally framework, qualifying travel pursuant to Advance Parole generally did not trigger the unlawful presence bar merely because the person left the United States. After Matter of Delcarmen-Lara, that same departure may trigger the ten-year bar.

Similarly, an individual who accumulated more than 180 days but less than one year of unlawful presence may potentially trigger the three-year bar by departing the United States.

The BIA's decision is particularly consequential because adjustment applicants generally must establish that they are admissible to the United States for lawful permanent residence.

Advance Parole Is Permission to Travel—Not a Guarantee of Admissibility

One of the most important lessons from Matter of Delcarmen-Lara is that approval of Advance Parole should not be viewed as a determination that international travel is immigration-safe.

An Advance Parole document may authorize an individual to seek parole upon returning to the United States, but it does not necessarily resolve separate grounds of inadmissibility.

Accordingly, an individual may possess a valid Advance Parole document and still face serious immigration consequences arising from unlawful presence or other aspects of their immigration history. This distinction is now especially important.

What About an Unlawful Presence Waiver?

Depending on the circumstances, an individual subject to the unlawful presence bars may potentially qualify for a waiver under INA § 212(a)(9)(B)(v).

Generally, this waiver requires demonstrating that refusing admission would result in extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent.

A U.S. citizen or lawful permanent resident child, standing alone, is not a statutory qualifying relative for this particular waiver, although hardship to children may sometimes be relevant insofar as it affects a qualifying spouse or parent.

Waiver eligibility is highly fact-specific and should not be assumed before international travel.

Already Have Advance Parole? Review Your Case Before Traveling

If you already have an approved Advance Parole document, you should not assume that the approval means you can safely depart the United States.

Before traveling, it may be necessary to determine:

Whether you have accrued unlawful presence;
Exactly how much unlawful presence you accumulated;
Whether any statutory exceptions apply;
Whether your departure could trigger another ground of inadmissibility;
Whether you have prior removal or deportation orders;
Whether you would qualify for a waiver if a ground of inadmissibility is triggered; and
How departure could affect your pending adjustment of status or other immigration proceedings.

A decision to travel should therefore be based on an individualized review of the person's complete immigration history, not merely the existence of an approved Advance Parole document.

Before You Travel, Speak with an Immigration Attorney

Matter of Delcarmen-Lara represents a major change in the immigration consequences associated with Advance Parole. Travel that may previously have been considered relatively low risk under Matter of Arrabally and Yerrabelly may now create serious inadmissibility consequences for individuals with prior unlawful presence.

At Ibe Legal Associates, PLLC, we understand that international travel may be necessary for family emergencies, employment, education, humanitarian reasons, or other important circumstances. But when immigration status is involved, leaving the United States without first understanding the legal consequences can create problems that may be difficult and sometimes impossible to resolve after departure.

If you have a pending adjustment of status application, DACA, TPS, an approved Advance Parole document, or a history of unlawful presence, consider having your immigration history reviewed before leaving the United States.

Ibe Legal Associates, PLLC provides immigration representation to clients throughout the United States. Contact our office to schedule a consultation and determine how Matter of Delcarmen-Lara may affect your immigration case and travel plans.

Disclaimer

This article is provided for general informational purposes only and does not constitute legal advice. Immigration law is highly fact-specific, and the application of Matter of Delcarmen-Lara may vary depending on an individual's immigration history and circumstances. Reading this article does not create an attorney-client relationship with Ibe Legal Associates, PLLC.