Executive Summary
- On August 13, 2026, the Board of Immigration Appeals (BIA) issued a precedential decision in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), holding that a departure from the United States on advance parole is a “departure” for purposes of the three- and ten-year unlawful presence bars under INA Section 212(a)(9)(B).
- This ruling overrules Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which had held for fourteen years that advance parole travel did not constitute a departure that would trigger the bars.
- The decision affects individuals who have accrued more than 180 days of unlawful presence and hold or are considering using advance parole, including certain adjustment of status applicants, DACA recipients, and TPS holders.
- Employers with foreign national employees who have periods of prior unlawful presence and are considering international travel on advance parole should pause and seek individualized guidance before departure.
Background
Under INA Section 212(a)(9)(B), a foreign national who accrues more than 180 days but less than one year of unlawful presence and then departs the United States is inadmissible for three years. A foreign national who accrues one year or more of unlawful presence and then departs is inadmissible for ten years. Waivers may be available in limited circumstances.
For over a decade, employers and immigration counsel relied on the BIA’s 2012 decision in Arrabally and Yerrabelly, which held that a departure under advance parole was fundamentally different from an ordinary departure because the government had affirmatively authorized the traveler’s return. On that basis, individuals with pending adjustment of status applications, approved DACA, or TPS could travel internationally on advance parole without triggering the unlawful presence bars, even if they had accrued significant unlawful presence before their departure.
Delcarmen-Lara abandons that reasoning. The BIA concluded that the statutory definition of “departure” does not carve out an exception for parole-authorized travel, and that Congress’s inclusion of such an exception elsewhere in the INA, but not in Section 212(a)(9)(B), indicates the omission was intentional.
Litigation Outlook
Delcarmen-Lara is a precedential BIA decision and is binding on immigration judges and USCIS adjudicators nationwide unless and until it is reversed by a federal circuit court or the BIA itself. Given the significance of the reversal and the reliance interests built up over fourteen years of contrary guidance, a circuit court challenge is plausible, and we would expect any such challenge to focus on whether the BIA’s new statutory reading is entitled to deference and whether retroactive application to pending cases would be appropriate.
The BIA specified that its holding applies prospectively: travel on advance parole completed before August 13, 2026, will not be treated as having triggered the unlawful presence bars under this new interpretation. Travel on or after that date is subject to the new rule.
What Employers Should Do Now
- Identify any sponsored employees with pending adjustment of status applications, approved DACA, or TPS-based advance parole who have accrued more than 180 days of unlawful presence at any point and who are contemplating international travel.
- Suspend any planned advance parole travel for affected individuals until individualized counsel has reviewed the person’s specific unlawful presence history and departure plans.
- Flag this change in internal mobility and travel approval workflows so that HR and global mobility teams route advance parole travel requests through immigration counsel before departure is booked.
- Review any pending or upcoming international assignments or personal travel plans involving advance parole holders in the affected employee population.
FAQ
Does this ruling affect all advance parole holders? No. It only affects individuals who have accrued more than 180 days of unlawful presence in the United States prior to a departure on advance parole. Individuals without such unlawful presence are not affected by this change.
Is this ruling retroactive? No. The BIA specified that the new rule applies only to departures on advance parole occurring on or after August 13, 2026. Prior travel on advance parole is not affected.
Does this apply to DACA recipients? Yes. DACA recipients who have accrued qualifying unlawful presence and who travel internationally on advance parole after August 13, 2026, may be subject to the three- or ten-year bar upon their return, which could affect future adjustment of status eligibility.
What should someone do if they already have advance parole and travel planned? They should consult with immigration counsel before departing to assess whether they have accrued unlawful presence that would trigger a bar under this new standard, and to evaluate whether a waiver may be available if travel is unavoidable.
Could this decision be overturned? It is possible. As a precedential BIA decision, it is currently binding, but it could be challenged in federal court or revisited by the BIA.
This alert is for informational purposes only and does not constitute legal advice. If you have questions about how this decision may affect a specific employee or immigration matter, please contact Goel & Anderson, LLC.
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