NewsFlash! BIA Holds Advance Parole Travel Can Trigger Unlawful-Presence Bar

The Board of Immigration Appeals (BIA) issued a precedential decision on August 13, 2026, holding that a departure from the United States under advance parole is a “departure” for purposes of the three- and ten-year unlawful-presence bars. In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the BIA expressly overruled its 2012 decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (amended order, August 16, 2012).

What Has Changed?

Under INA §212(a)(9)(B), a foreign national who accrues more than 180 days of unlawful presence and then departs may trigger a three-year bar to admission. A person who accrues one year or more of unlawful presence and then departs may trigger a ten-year bar. For more than a decade, Matter of Arrabally and Yerrabelly provided that a temporary trip abroad using advance parole did not constitute a “departure” that triggered these unlawful-presence bars.

The BIA has now adopted the opposite interpretation. The Board concluded that the statutory term “departure” includes a trip outside the United States made under advance parole, even where the individual returns after being paroled back into the country. Thus, an individual with sufficient prior unlawful presence may become inadmissible under INA § 212(a)(9)(B) because of travel on advance parole, and may need a waiver before being able to obtain permanent residence or otherwise be admitted.

Decision Applies Prospectively

Importantly, the BIA stated that its new holding will apply prospectively, recognizing that it is a significant change from longstanding Board precedent on which individuals may have relied. The decision does not resolve all questions about how the prospective rule will be implemented in individual cases. Individuals considering advance parole travel after August 13, 2026, particularly those who may have accrued unlawful presence, should obtain case-specific legal advice before leaving the United States.

Conclusion

Advance parole remains an important travel mechanism for many applicants, including certain adjustment applicants and DACA recipients. However, the BIA’s decision substantially changes the risk analysis for individuals with unlawful-presence concerns. Foreign nationals should not assume that an approved advance parole document protects them from the three- or ten-year bar, and they should carefully assess the immigration consequences of travel before departing.

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