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Leaving the US on Advance Parole? A New Ruling Could Cost You 10 Years
Previously, immigrants with pending green card applications treated Advance Parole as a reasonably safe way to travel abroad and come back. That assumption no longer holds. A new ruling from the Board of Immigration Appeals (BIA) has stripped away a protection that families, DACA recipients, and adjustment-of-status applicants relied on since 2012. It could now mean walking straight into a three- or ten-year bar on returning to the United States. As always, our EB-1A consultancy has put it under analytic gaze and discussed the policy change in detail. At the end, we have also addressed what should be the best practice for all the travelers and beneficiaries of advance parole. On August 13, 2026, the BIA issued its decision in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), overturning its own 2012 precedent in Matter of Arrabally and Yerrabelly. The Board held that leaving the US under a grant of Advance Parole is a “departure” for purposes of the unlawful-presence provisions in Section 212(a)(9)(B) of the Immigration and Nationality Act. That single word, “departure”, carries enormous weight. Under the INA, anyone who accrues more than 180 days but less than a year of unlawful presence and then departs the country faces a three-year bar on returning. Anyone who accrues a year or more faces a ten-year bar. For fourteen years, Arrabally shielded Advance Parole travelers from that consequence by holding that their trips simply didn’t count as a “departure” in the legal sense. Delcarmen-Lara throws that shield out. The case itself involved Milagro Delcarmen-Lara, a Salvadoran national who had lived in the US for more than two decades under a final removal order before traveling and returning on Advance Parole, then seeking to reopen her case to pursue a green card. The Board’s reasoning was strikingly literal: it looked to the plain dictionary meaning of “depart” and found nothing in the statute carving out advance-parole trips as an exception, concluding Congress had shown no intent to exempt them. Advance Parole is a travel document (not a visa) that lets certain noncitizens with pending applications, including a pending Form I-485 adjustment-of-status case, or those in categories like DACA, leave the US and seek re-entry without abandoning their pending case. It has never guaranteed unconditional readmission. What it did guarantee, until now, was that the trip itself wouldn’t trigger the unlawful-presence bar. That guarantee too, is now gone. USCIS moved quickly to confirm the shift, updating its guidance to state that as of August 13, 2026, departing the country after obtaining Advance Parole is a departure for inadmissibility purposes under the INA. Fragomen, one of the country’s largest immigration law firms, similarly confirmed that travel abroad on Advance Parole will now trigger the three- or ten-year bar for anyone who has already accrued more than 180 days of unlawful presence before leaving. The ruling does not mean every Advance Parole traveler is suddenly barred for a decade. The bars only apply to people who had already accumulated the relevant amount of qualifying unlawful presence before their trip. Someone who entered lawfully and never fell out of status, for instance, has nothing to fear from this decision alone. But someone who overstayed a visa or entered without inspection for an extended period, and later became eligible to adjust status, may now trigger the very bar Advance Parole once helped them avoid. Attorneys are split on how troubling this is in practice. Charles Kuck of Kuck Baxter in Atlanta noted that the decision does not stop DACA recipients from traveling on parole, but it does add a significant extra layer of risk assessment before booking that ticket. Immigration commentators at Lal Legal were far blunter, calling it perverse that the government can authorize a trip through Advance Parole and then treat that very trip as the trigger for inadmissibility. Importantly, the BIA said its new interpretation applies prospectively, not retroactively, recognizing that immigrants and attorneys had relied on Arrabally for well over a decade. Trips completed before August 13, 2026, should still fall under the old rule. But the agencies haven’t spelled out precisely how they’ll draw that line in edge cases, and USCIS and the State Department had already disagreed for years over how Arrabally applied at consular posts abroad. Hence, if you are holding Advance Parole, don’t assume the document alone makes travel safe. Unlawful presence is a technical and fact-specific calculation shaped by age, entry history, DACA periods, and pending applications. Before booking that flight, get an individualized case review from a qualified immigration attorney instead of relying on what used to be common wisdom. At GCEB1, our eb-1a consultants are continuously staying updated on all the latest immigration policies, and updates. Stay tuned to us to read analysis and insights on the U.S. legal immigration and its changes. The BIA ruled that leaving the US under a grant of Advance Parole counts as a legal “departure,” which can trigger the three- or ten-year unlawful-presence bar under INA Section 212(a)(9)(B). This overturns the Board’s 2012 decision in Matter of Arrabally and Yerrabelly. No. The bar only applies to people who had already accrued more than 180 days (for the three-year bar) or one year or more (for the ten-year bar) of qualifying unlawful presence before their departure. Someone with no such history isn’t affected by this specific rule. No. The BIA said the decision applies prospectively. Advance Parole trips completed before August 13, 2026 should still be governed by the old Arrabally standard, though agencies haven’t detailed exactly how every edge case will be handled. People with a pending I-485 adjustment-of-status application, often based on marriage to a US citizen, who previously accrued significant unlawful presence (through an overstay or unauthorized entry) before becoming eligible to adjust status are the group most exposed. Potentially, but many DACA recipients received DACA young enough, or accrued time only while a DACA grant was active, that they never crossed the unlawful-presence thresholds that trigger the bars. Whether that applies to a given person requires an individualized review. Yes. Advance Parole remains a valid travel document that allows certain applicants to leave and seek re-entry without automatically abandoning a pending case. What has changed is that it no longer shields travelers from the separate unlawful-presence bar. More than 180 days but less than one year of qualifying unlawful presence followed by a departure can trigger a three-year bar on returning. One year or more of qualifying unlawful presence followed by a departure can trigger a ten-year bar. In some circumstances, Congress has authorized a discretionary waiver under INA Section 212(a)(9)(B)(v), commonly pursued through the I-601 unlawful-presence waiver process, typically requiring a showing of extreme hardship to a qualifying US citizen or lawful permanent resident spouse or parent. Consult a qualified EB-1A attorney to review their specific entry history, periods of unlawful presence, and pending applications before booking any international trip, instead of assuming an approved Advance Parole document makes travel automatically safe.The ruling that changed everything
What advance parole actually is
Who is actually at risk
Not retroactive but the guardrails are thin
Frequently asked questions
1. What did the BIA actually decide in Matter of Delcarmen-Lara?
2. Does this mean everyone with Advance Parole is now barred from returning?
3. Is the new rule retroactive?
4. Who is most likely to be affected?
5. Are DACA recipients affected?
6. Does having Advance Parole still serve any purpose?
7. What is the difference between the three-year and ten-year bar?
8. Can the bar be waived?
9. What should someone with a pending green card case do before traveling?
Sources & further readings
