On 13 August 2026 the Board of Immigration Appeals decided Matter of Delcarmen-Lara, 29 I&N Dec. 830. Leaving the United States on a grant of advance parole is now a “departure” for purposes of the unlawful presence bars in section 212(a)(9)(B) of the Immigration and Nationality Act.
That overrules Matter of Arrabally and Yerrabelly, decided in 2012, which held the opposite. For fourteen years, people with a pending green card application were told that travelling on advance parole would not trigger the three or ten year bar. That advice is no longer good.
Why this matters so much
The unlawful presence bars are triggered by leaving the country, not by the unlawful presence itself. More than 180 days of unlawful presence followed by a departure means three years of inadmissibility. More than a year means ten.
Under the old rule, a trip on advance parole was carved out of that. Someone who had been out of status for years, then married a U.S. citizen and filed to adjust, could visit a sick parent abroad and come back without setting off the bar. Under the new rule, that same trip can make them inadmissible, which can sink the very application the advance parole was issued for.
Who should pay attention
Anyone who accrued more than 180 days of unlawful presence before their current case was filed, and who is now considering travel on advance parole. In practice that includes many adjustment of status applicants, and many DACA recipients who travel with advance parole.
It matters less if you never accrued unlawful presence: for example, if you have held valid status throughout, or your unlawful presence was accrued before you turned 18, or another exception applies. Whether an exception applies to you is a legal question, not a self-assessment.
Trips you already took
The Board applied its new holding prospectively. It said the interest in applying the new rule does not outweigh expectations built on the old one, and it declined to decide whether the traveller in that case had made a departure.
USCIS describes the change as applying to departures from 13 August 2026. So a trip completed before that date should be judged under the old rule. If you travelled on advance parole in the past and it worries you, bring the dates to us rather than assuming either way.
What to do before you book anything
Do not travel on advance parole until someone has looked at your unlawful presence history. Not the travel document, the history. Advance parole being approved does not mean travelling on it is safe for you; the document and the bar are decided under different rules.
Work out the exact dates: when your status ended, when any application was filed, and how much unlawful presence you accrued before that filing. A few days on either side of the 180 day and one year marks changes the answer completely.
If the trip is unavoidable, ask about it first. Depending on the facts there may be a waiver route, and it is far better to know that before you leave than to discover it at the airport on the way back.
If you have a pending case and a trip in mind, call us before you buy a ticket. This is one of the few situations in immigration law where a single decision, made in a week, can cost ten years.