- The BIA ruled that travel via advance parole triggers unlawful-presence bars for certain green card applicants.
- The new interpretation applies to those with over one hundred eighty days of unlawful presence before leaving.
- The rule takes effect prospectively for all international departures occurring after August thirteen, twenty twenty-six.
The Board of Immigration Appeals issued a precedential ruling Thursday that exposes some green card applicants to three-year or 10-year unlawful-presence bars when they leave the United States using Advance Parole.
The decision, Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), overruled a 2012 precedent that had generally protected people who temporarily traveled abroad under advance parole from triggering those bars.
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The new interpretation applies to people who accrued more than 180 days or at least one year of unlawful presence before leaving the country. The ruling treats the trip as a statutory departure, even when the traveler holds an official Form I-512L.
The change takes effect prospectively. People who traveled before August 13, 2026, while relying on the former rule should not face retroactive penalties under the new holding.
USCIS spokesman Zach Kahler described the agency’s position in a statement issued August 13, 2026. He said Congress attached consequences to leaving the country after unlawful presence, including departures under advance parole.
"The immigration laws enacted by Congress impose consequences when someone who has accrued unlawful presence leaves the country and later seeks admission, including when that departure occurs under advance parole. This decision affirms a straightforward principle: leaving the United States has meaning under the law."
The ruling directly rejects Matter of Arrabally and Yerrabelly from 2012. That decision had held that a temporary trip using advance parole did not count as a departure for purposes of the unlawful-presence bars.
The new interpretation treats authorized travel as a departure
Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act imposes a 10-year bar after a qualifying period of unlawful presence and departure. A qualifying period lasting more than 180 days can produce a three-year bar.
The decision says a departure under a grant of advance parole falls within that statutory language. The judges said they could not disregard the text without “demonstrated absurd or bizarre consequences.”
The ruling states:
"A departure from the United States pursuant to a grant of advance parole is a 'departure' within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act. In the absence of demonstrated absurd or bizarre consequences. we are not permitted to reject the plain language of the statutory text."
An approved travel document therefore does not guarantee reentry or prevent an inadmissibility bar. Applicants who travel after the ruling and trigger a bar will likely need an Application for Waiver of Grounds of Inadmissibility, Form I-601, before continuing with an adjustment-of-status case.
The ruling recognizes that it represents a significant change from longstanding Board precedent. Its prospective application preserves the position of travelers who departed before the decision date while relying on the earlier interpretation.
DACA and TPS travelers face separate exposure
DACA recipients are among those who may be affected. Many use advance parole for work or education and later seek adjustment of status through marriage to a U.S. citizen after making what they view as a lawful entry.
A departure could now trigger a 10-year bar if the person accrued unlawful presence before receiving DACA. The travel purpose does not remove the underlying question of prior unlawful presence.
Temporary Protected Status holders also relied on the earlier precedent when traveling and returning to the United States. They now face a potential inadmissibility problem after departure under the new interpretation.
Pending Form I-485 applicants face similar risks when their records include older unlawful-presence periods, such as time after an expired visa. The danger can arise even when the applicant currently holds travel authorization and has a case awaiting adjudication.
Applicants should review their entire immigration history
Immigration experts and government representatives advise people with more than 180 days of prior unlawful presence to avoid international travel until they obtain case-specific legal advice. The relevant history may predate DACA, TPS, a pending adjustment application or another current protection.
Applicants should identify when each period of authorized stay began and ended. They also need to determine whether unlawful presence accumulated before that authorization or protection took effect.
The key records can include expired visas, prior applications, periods without status and documents showing when DACA or TPS began. A current travel document does not erase those earlier periods.
A person who departs after August 13, 2026, may return to a three-year or 10-year inadmissibility issue rather than simply resume a pending green card process. A waiver may become part of that process, but the filing does not eliminate the need to assess the underlying facts.
The Department of Justice decision is available through the EOIR decision page. USCIS maintains its Newsroom, and the Department of Homeland Security publishes updates through its official press gallery.
