On August 13, 2026, the Board of Immigration Appeals issued Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026). The decision overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).
The BIA held that a person who leaves the United States under a grant of advance parole makes a “departure” for purposes of the unlawful presence bars under INA § 212(a)(9)(B)(i). As a result, qualifying travel on or after August 13, 2026, can trigger a three-year or ten-year bar.
This decision materially changes the travel risks for DACA recipients, certain TPS holders, adjustment applicants, and other noncitizens who have accrued qualifying unlawful presence. An advance parole document does not guarantee reentry. A noncitizen must be inspected by U.S. Customs and Border Protection (CBP), and CBP retains discretion regarding parole into the United States.
What Matter of Delcarmen-Lara Decided
Under Arrabally and Yerrabelly, advance parole travel generally did not constitute a “departure” for purposes of INA § 212(a)(9)(B). Individuals who had accrued more than 180 days of unlawful presence could often travel on advance parole without triggering the three-year or ten-year bars under that provision.
Delcarmen-Lara eliminates that protection.
The BIA concluded that the ordinary meaning of “departure” includes leaving the United States under advance parole. The decision found no statutory exception for a departure that occurs pursuant to advance parole. The BIA therefore held that:
- A departure under advance parole is a “departure” under INA § 212(a)(9)(B)(i)(II).
- Matter of Arrabally and Yerrabelly is overruled.
- A qualifying advance parole trip can trigger the unlawful presence bars.
- The decision applies prospectively.
The formal holding addressed the ten-year bar provision. USCIS and immigration practitioners generally understand the new interpretation to apply to the unlawful presence bars under INA § 212(a)(9)(B)(i), including both the three-year and ten-year bars.
The full decision is available through the U.S. Department of Justice Executive Office for Immigration Review.
Prospective Application: The Critical Date Is August 13, 2026
The BIA applied its decision prospectively because it was overruling longstanding precedent on which many noncitizens relied.
The practical rule is:
- Advance parole trips completed before August 13, 2026, should not trigger the unlawful presence bars based solely on the new Delcarmen-Lara interpretation.
- Advance parole departures on or after August 13, 2026, are governed by the new rule.
- Other grounds of inadmissibility or removal can still affect a person who traveled before August 13, 2026.
The relevant date is the date of departure from the United States. The date on which the person returns does not convert a pre-August 13 trip into a post-decision departure.
Individuals who traveled before the decision but remain outside the United States should obtain case-specific legal advice before attempting to return. Their departure should not be treated retroactively under Delcarmen-Lara, but CBP may review other issues at the port of entry.
Who Is Affected by the New Rule?
The decision is especially significant for noncitizens who have a history of unlawful presence and plan to travel internationally.
DACA Recipients
DACA recipients commonly use advance parole for qualifying educational, employment, or humanitarian travel. Some DACA recipients have accrued unlawful presence after turning 18 and before receiving deferred action or during lapses in DACA coverage.
A DACA recipient should not assume that an approved advance parole application makes travel safe. The individual must determine:
- Whether unlawful presence accrued after age 18.
- Whether DACA coverage was continuous.
- Whether any DACA renewal lapse created additional unlawful presence.
- Whether an outstanding removal order or removal proceeding creates separate travel risks.
- Whether the proposed travel is necessary and legally advisable.
TPS Holders
TPS beneficiaries must also reassess international travel. USCIS generally issues TPS travel authorization, including Form I-512T, to certain TPS holders. TPS travel documents and advance parole documents are not identical, and the legal effect of a particular document must be reviewed carefully.
The formal holding in Delcarmen-Lara concerns travel pursuant to a grant of advance parole. However, the reasoning may create uncertainty for some TPS travelers, particularly where the person has a prior unlawful presence history or uses documentation that functions differently from ordinary admission.
TPS holders should not rely on older advice stating that authorized travel is categorically safe. A qualified immigration lawyer should review the individual’s TPS history, travel document, unlawful presence record, and intended immigration benefit before departure.
Adjustment Applicants and Other Noncitizens
The decision may affect individuals with:
- A pending Form I-485, Application to Register Permanent Residence or Adjust Status.
- A pending asylum application.
- U nonimmigrant or T nonimmigrant status.
- Other forms of deferred action or humanitarian protection.
- Employment-based or family-based immigration strategies.
- A pending immigration case requiring international travel.
Individuals with a pending adjustment application generally require advance parole before traveling. Leaving without appropriate travel authorization can cause the application to be treated as abandoned. Traveling with advance parole avoids that particular abandonment issue, but it does not eliminate the new unlawful presence risk.
How the Three-Year and Ten-Year Bars Work
Under INA § 212(a)(9)(B)(i), the length of the bar depends on the amount of qualifying unlawful presence accrued before departure.
Three-Year Bar
The three-year bar generally applies when a person:
- Accrued more than 180 days but less than one year of qualifying unlawful presence; and
- Departed the United States.
After Delcarmen-Lara, a qualifying advance parole departure can satisfy the departure requirement.
Ten-Year Bar
The ten-year bar generally applies when a person:
- Accrued one year or more of qualifying unlawful presence; and
- Departed or was removed from the United States.
A post-August 13, 2026 advance parole departure can trigger this bar when the person has at least one year of qualifying unlawful presence.
Unlawful presence calculations are fact-specific. Certain periods may not count, including some periods when a person was under 18, had a bona fide asylum application pending, had an adjustment application pending, or held deferred action. The applicable exceptions depend on the person’s complete immigration history.
The USCIS guidance on unlawful presence and inadmissibility should be reviewed together with the underlying statutes, regulations, and case history.
Advance Parole Does Not Guarantee Reentry
Advance parole is not a visa and is not an unconditional right to enter the United States. A person who returns after international travel remains subject to inspection at a U.S. port of entry.
CBP may evaluate:
- The person’s identity and travel documents.
- The advance parole document and its validity.
- Prior immigration violations.
- Unlawful presence and potential inadmissibility.
- Removal orders or pending removal proceedings.
- Criminal history.
- Fraud or misrepresentation concerns.
- Any changes in the person’s immigration circumstances.
Parole is also not the same as admission for all immigration purposes. The person may be permitted to enter temporarily through parole while remaining an applicant for admission. CBP has discretion regarding whether to grant parole at the port of entry.
Accordingly, an individual who triggers a three-year or ten-year bar through post-August 13 travel may face a risk that CBP will deny parole or delay the person for additional inspection. Reentry is not guaranteed merely because USCIS approved Form I-131 or issued an advance parole document.
What to Do Before Traveling
Before departing the United States, an affected noncitizen should take the following steps:
- Consult an immigration lawyer. The analysis should occur before purchasing tickets or leaving the country. A business immigration attorney may be appropriate for employees whose travel affects an employment-based strategy, while family or humanitarian cases may require a different form of review.
- Reconstruct the unlawful presence history. Review every period of status violation, DACA lapse, pending application, deferred action, asylum filing, TPS period, and prior departure.
- Confirm the travel document. Determine whether the document is advance parole, TPS travel authorization, or another form of travel permission. The document’s classification can affect the legal analysis.
- Check for removal issues. An outstanding removal order, prior removal, or pending removal proceeding creates risks that Delcarmen-Lara does not eliminate.
- Evaluate alternatives. Consider postponing travel, resolving an immigration application from inside the United States, obtaining a waiver, or pursuing another lawful immigration strategy.
- Document the legal assessment. Maintain copies of the travel document, immigration filings, prior approvals, status records, and legal analysis.
A waiver may be available in some circumstances. For example, certain applicants may qualify to seek an unlawful presence waiver on Form I-601 based on extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent. Eligibility is not automatic, and a waiver application does not eliminate the immediate risks associated with departure.
Conclusion: Obtain Legal Advice Before Using Advance Parole
Matter of Delcarmen-Lara has changed the legal consequences of advance parole travel. A trip on or after August 13, 2026, can count as a departure and trigger a three-year or ten-year unlawful presence bar when the individual has accrued the required period of qualifying unlawful presence.
DACA recipients, TPS holders, adjustment applicants, workers, and families should not rely on prior Arrabally and Yerrabelly advice without reassessing their circumstances.
Blasingame Law LLC provides personalized guidance in DACA, family immigration, humanitarian immigration, and business immigration matters. Schedule a consultation or contact Blasingame Law LLC before traveling on advance parole or another immigration travel document.
This article provides general information and does not constitute legal advice or create an attorney-client relationship. Immigration consequences depend on the individual’s complete record and current law.
