- The BIA overruled the Arrabally precedent on August thirteenth, twenty twenty-six, ending protections for advance parole travel.
- Departing with unlawful presence now triggers three or ten-year bars regardless of parole status.
- The new rule applies prospectively to trips taken after the ruling date of August thirteenth, twenty twenty-six.
A Board of Immigration Appeals ruling on Aug. 13, 2026, changed the risk math for travelers who already have unlawful presence on their record. The board said a departure on advance parole can now count under INA § 212(a)(9)(B), which can set off the 3-year and 10-year bars. The date matters now.
The case, Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), overruled Matter of Arrabally and Yerrabelly, the 2012 precedent that had shaped the issue for 14 years. The board said the new rule applies prospectively. Trips taken before Aug. 13, 2026, generally sit outside it. The old shield is gone.
Judge Gorman, the deputy chief appellate immigration judge who wrote for the board, put the change in one sentence. He drew a hard line.
Free toolB1/B2 Tourist Visa Stay Calculator online"We now clarify that the term 'departure' under this section of the INA [Immigration and Nationality Act] does not include an exception for aliens who leave the country temporarily under a grant of advance parole."
The count starts earlier than many people expect. Begin on the first day you were in the United States without admission or parole, or on the day your authorized stay expired. Then count every calendar day until the day before you leave. Stop there. Do not skip weekends or travel days. The rule turns on the total before departure, not after.
USCIS updated its Unlawful Presence and Inadmissibility page on Aug. 14, 2026, and tied the new reading to section 212(a)(9)(B)(i). The travel document at issue is Form I-512L. Under that provision, more than 180 days can set up the shorter bar, while one year or more can set up the longer one. The cutoff is sharp.
The day count sets the risk band
The bands look simple on paper. They are not simple in life. A small change in the count can move a traveler into a different statutory bucket. The table below shows the thresholds.
| Accrued unlawful presence before departure | Result if the trip happens under the new rule |
|---|---|
| 0–179 days | The bars do not turn on that threshold. |
| 180 days to 364 days | Departure may trigger the 3-year bar. |
| 365 days or more | Departure may trigger the 10-year bar. |
A traveler at 179 days is still below the first line. At 180, the shorter bar becomes a live issue. At 365, the longer one does. That is the pivot. The departure itself now carries the consequence.
The board made the change prospective
Prospective application limits the ruling to later departures. That means the exit date now drives the legal result. Travel finished before Aug. 13, 2026, is generally not affected. Later trips are. Keep the date.
The agency's alert landed on Aug. 14, 2026, one day after the board decision. USCIS now treats an Advance Parole Document as enough to make the exit a departure for inadmissibility purposes under section 212(a)(9)(B)(i). That shift sits on the public page and will guide people looking for the agency's current position. The page is now the first stop. The calendar is the second.
The board's new reading sits in the open, and it will shape every calculation from here. The question is no longer whether the government allowed the trip. It is whether the travel happened after the count crossed the line. If the days are near 180 or 365, the number comes first. The trip comes after the math.
