Advance Parole and Unlawful Presence: BIA 2026 Ruling

A Major Shift in Immigration Law

On August 13, 2026, the Board of Immigration Appeals (BIA) issued a landmark precedent decision: Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026). This ruling directly overturns the long-standing decision in Matter of Arrabally and Yerrabelly, which had protected millions of immigrants for years.

If you travel outside the United States on advance parole (a travel document that allows certain immigrants to leave and return without abandoning their pending applications), this new ruling changes everything you need to know before buying that plane ticket.

What Did the Old Rule Say?

Under Matter of Arrabally and Yerrabelly, traveling on advance parole was not considered a "departure" for purposes of triggering the unlawful presence bars under Section 212(a)(9)(B) of the Immigration and Nationality Act (INA). In plain terms: if you had accumulated unlawful presence (time spent in the U.S. without legal status) before your trip, leaving on advance parole did not start the 3-year or 10-year bar against returning to the United States.

That protection is now gone.

What Does the New Rule Say?

The BIA ruled in Matter of Delcarmen-Lara that a departure on advance parole is a departure within the meaning of INA Section 212(a)(9)(B). This means:

• If you accumulated more than 180 days of unlawful presence before leaving, you may trigger a 3-year bar on inadmissibility (being barred from entering the U.S.).
• If you accumulated more than one year of unlawful presence before leaving, you may trigger a 10-year bar on inadmissibility.
• These bars are activated at the moment of departure — even if you hold a valid advance parole document.

This is a fundamental reversal of a practice that had been in place for many years. Many immigrants with pending adjustment of status (I-485) applications or other pending immigration benefits relied on the old rule when planning international travel.

At the same time, the BIA stated that it applies this decision prospectively — going forward — because it is expressly overruling Matter of Arrabally and Yerrabelly, a precedent that had stood for many years. What prospective application means for your specific situation is a legal question best assessed with an immigration attorney.

Who Is Most at Risk?

You are at serious risk if:

• You have a pending application for adjustment of status (Form I-485) and hold advance parole.
• You entered the U.S. without inspection or overstayed a visa and accumulated unlawful presence.
• You are planning to travel internationally in the near future and have not calculated your unlawful presence carefully.

Even a short trip abroad could now result in being barred from returning to the United States for 3 or 10 years.

What You Should Do

• Do not travel outside the U.S. on advance parole until you have spoken with a qualified immigration attorney.
• Calculate your unlawful presence carefully. This is a complex legal determination — do not guess.
• Review any pending travel plans immediately. Cancel or postpone international trips until you understand your risk.
• Consult an immigration attorney as soon as possible. Immigration attorney Ilya Fishkin and other experienced practitioners are closely monitoring the impact of this decision and can assess your individual situation.
• Do not rely on the old rule. Matter of Arrabally and Yerrabelly is no longer valid precedent as of August 13, 2026.

The Bottom Line

The BIA's decision in Matter of Delcarmen-Lara is one of the most significant changes to advance parole practice in decades. If you have any unlawful presence in your history and hold advance parole, traveling now carries serious legal consequences. Act carefully and get professional advice before making any decisions.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Immigration law is complex and fact-specific. Please consult a licensed immigration attorney for guidance on your individual case.