Immigration Law
Short Answer: For departures on or after August 13, 2026, traveling on advance parole can trigger the three- or ten-year unlawful presence bar under INA § 212(a)(9)(B). In Matter of Delcarmen-Lara (BIA 2026), the Board ruled that leaving on advance parole is now a "departure," overruling the earlier protection in Matter of Arrabally and Yerrabelly. The bar applies only if you accrued more than 180 days of unlawful presence after turning 18. Travel completed before August 13, 2026, and applicants with no unlawful presence, are not affected.
For more than a decade, advance parole was treated as a safe way to travel while a green card case was pending, even for people with old unlawful presence. That is no longer true. A 2026 Board of Immigration Appeals decision reversed the rule that made it safe, and the change is easy to miss because the travel document itself looks exactly the same. If you have any period of unlawful presence behind you, the decision to leave the country is now far more consequential than it was a year ago.
Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), holds that traveling outside the United States on a grant of advance parole counts as a "departure" for purposes of the unlawful presence bar under INA § 212(a)(9)(B). That single word — "departure" — is what makes the bar apply, and for years advance parole travel did not count as one.
The decision overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which had held the opposite: that leaving under advance parole was not a "departure" because the government had pre-authorized the traveler's return. Under Arrabally, a person with unlawful presence could travel on advance parole without triggering the bars. That protection is gone.
The Board applied its new rule prospectively. Departures completed on advance parole before August 13, 2026 are not affected, which protects people who traveled in reliance on the old rule. And although the decision by its terms addresses the ten-year bar under INA § 212(a)(9)(B)(i)(II), USCIS has indicated it will apply the same reasoning to the three-year bar under § 212(a)(9)(B)(i)(I). As of the date of this article, USCIS has posted a public alert reflecting this position.
Unlawful presence under INA § 212(a)(9)(B) is time spent in the United States without being admitted or paroled, or time here after your authorized period of stay expired. It is the clock that determines whether a departure triggers a bar, and the thresholds are specific.
More than 180 days of unlawful presence, followed by a departure, triggers a three-year bar to readmission. One year or more, followed by a departure, triggers a ten-year bar. The bar attaches at the moment you leave. One detail matters for many families: unlawful presence generally does not accrue before a person turns 18, so time spent out of status as a minor usually does not count toward these thresholds.
The reason Delcarmen-Lara is so significant is that advance parole no longer breaks this chain. If you have crossed the 180-day threshold and you leave on advance parole, the departure now completes the trigger. For a fuller explanation of how unlawful presence is counted, see our guide on out of status versus unlawful presence.
The impact of Matter of Delcarmen-Lara depends on your immigration category and, above all, on whether you accrued more than 180 days of unlawful presence before you obtained your current status. The four groups below face the clearest exposure.
Temporary Protected Status holders travel on a TPS travel authorization document (Form I-512T) rather than standard advance parole, but the departure analysis under Delcarmen-Lara reaches them too. A TPS beneficiary who accrued more than 180 days of unlawful presence before receiving TPS — or during a gap between TPS periods — can trigger a three- or ten-year bar upon leaving the country, even with authorized travel. Because TPS travel operates under its own statutory and regulatory framework, further agency guidance may be needed to spell out the full effect of the decision on TPS-authorized travel. Until then, TPS holders with any pre-TPS unlawful presence should treat travel as a decision that requires legal analysis, not a routine trip.
A grant of Deferred Action for Childhood Arrivals stops new unlawful presence from accruing, but it does not erase unlawful presence accrued before the first DACA grant or during a lapse between renewals. Under Delcarmen-Lara, returning on advance parole still satisfies the "inspected and paroled" requirement for adjustment of status — but the physical departure now triggers a three- or ten-year bar if the person accrued more than 180 days of unlawful presence after turning 18 and before receiving DACA. For a DACA recipient weighing travel to see a seriously ill relative abroad, this turns what used to be a manageable trip into a decision that can close off the green card entirely.
Immediate relatives of U.S. citizens — spouses, parents, and unmarried children under 21 — face a specific trap under Delcarmen-Lara. If you entered lawfully through inspection, INA § 245(c)(2) exempts you from the requirement to maintain continuous lawful status, so a past overstay is forgiven as long as you remain in the United States and adjust status here. Leaving is what changes the outcome. If you accrued at least 180 days of unlawful presence before filing Form I-485 and then depart on advance parole, the exit still triggers a three- or ten-year bar. You return paroled but inadmissible, and you would then need an approved Form I-601 waiver to complete your case.
Adjustment applicants in family-preference or employment-based categories carry the heaviest risk, because INA § 245(c) does not exempt them from status violations the way it does immediate relatives. Filing Form I-485 does not erase prior unlawful presence, and departing on advance parole does not cure an underlying status problem — it simply triggers the bar for any preference applicant who has accrued more than 180 days of unlawful presence, cutting off the ability to adjust on return. The consequence is especially severe here: without a qualifying U.S. citizen or lawful permanent resident spouse or parent, these applicants have no I-601 waiver available at all.
Matter of Delcarmen-Lara does not put every advance parole traveler at risk, and it is worth being precise about who can still travel with the same safety as before. Advance parole remains a sound travel tool for anyone who has always maintained lawful status or who has accrued zero unlawful presence — the departure triggers nothing because there is no unlawful presence to activate a bar.
Two other groups are outside the change. People who completed their advance parole travel before August 13, 2026 are protected by the decision's prospective application. And people whose only time out of status occurred before they turned 18 generally have not accrued unlawful presence for these purposes. If none of the bar thresholds apply to you, the decision does not change your travel analysis.
An approved advance parole document has never guaranteed admission, and Delcarmen-Lara makes that limitation more consequential. Customs and Border Protection officers retain final authority at the port of entry to grant or deny parole when you arrive. A person who triggers a bar on departure returns as a parolee but remains inadmissible — meaning they cannot obtain permanent residence unless a waiver is approved.
Two categories of traveler should be especially cautious regardless of unlawful presence: anyone with a prior removal order and anyone with a criminal history. For them, an approved travel document is not a green light, and travel warrants careful analysis before any ticket is booked.
If travel on advance parole triggers a three- or ten-year unlawful presence bar, the path forward runs through a waiver — and eligibility is not universal. Under INA § 212(a)(9)(B)(v), the unlawful presence waiver requires proof of extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Hardship to a child does not qualify, and an applicant with no qualifying relative has no waiver for the unlawful presence bar.
Two forms are relevant. Form I-601 is the standard Waiver of Grounds of Inadmissibility. Form I-601A is the provisional unlawful presence waiver, which certain applicants can file and have adjudicated while still in the United States, before departing for a consular interview. Both demand a carefully built hardship record, not a bare assertion. Our overview of waivers of inadmissibility and our article on returning after a visa overstay explain how these tools work in practice.
The essential step before traveling on advance parole is a full, honest calculation of cumulative unlawful presence — done before any travel document is even requested. The question is no longer only "will my travel document be approved," but "what happens the moment I step off U.S. soil." If a departure would trigger a bar, an approved advance parole document does not protect you; it may simply document your exit.
Because advance parole applications on Form I-131 currently face long processing times, there is also a practical planning point: applying for advance parole only when travel is genuinely necessary — rather than adding it to every adjustment package by default — spares the cost and the wait where the document may never be safely usable. For anyone with unlawful presence in their history, the safer sequence is to confirm the bar analysis first and decide on the travel document second. For the broader logistics of traveling while your green card case is pending — abandonment, the combo card, and emergency travel — see our guide on traveling while your I-485 is pending.
As of the date of this article, Matter of Delcarmen-Lara is a Board of Immigration Appeals decision in effect for departures on or after its effective date. It is an administrative agency ruling, which means federal courts reviewing the statutory interpretation may not defer to the Board's reading and could reach a different conclusion. Whether a federal circuit court will take up and reject the Board's holding remains unresolved.
That distinction matters for planning. The decision is current, binding agency law today — not a proposal and not mere reporting — so it should be treated as the operative rule now. At the same time, its long-term durability is an open question, and anyone affected should watch for federal litigation that could change the landscape. This is an area where the status can shift, so verify the current state of the law before relying on it.
Every unlawful presence history is different, and the difference between a safe trip and a decade-long bar can come down to a handful of dates. If you hold or are applying for advance parole and you have any period of unlawful presence in your past, contact our office to review your specific timeline before you make any travel plans. A short conversation now can prevent a problem that takes years to undo.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Immigration laws and policies are subject to change, and individual circumstances vary. For advice specific to your situation, please consult with a qualified immigration attorney.
Oleg Gherasimov, Esq.
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