US: Travel on Advance Parole Can Now Trigger the 3- and 10-Year Re-Entry Bars

The Board of Immigration Appeals ruled on August 13, 2026 that leaving the United States on an advance parole document counts as a "departure" for the purposes of the three- and ten-year unlawful-presence bars. The decision, Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), overrules a 2012 precedent that had held the opposite for more than a decade. In practice it means that someone who has accrued more than 180 days of unlawful presence in the US, and who then travels abroad using an advance parole document tied to a pending green-card application, an asylum case, DACA or Temporary Protected Status, can be barred from returning or from adjusting status for three years, or ten years if the unlawful presence ran to a year or more. The ruling applies only going forward: trips taken on advance parole before August 13, 2026 are not affected.

Background

Congress created the unlawful-presence bars in 1996. Under section 212(a)(9)(B) of the Immigration and Nationality Act, a person who departs the United States after accruing more than 180 days but less than one year of unlawful presence becomes inadmissible for three years; someone who departs after a year or more of unlawful presence becomes inadmissible for ten. Inadmissibility means they cannot be issued a visa, be readmitted, or adjust status to permanent residence during that period, though a waiver is available in some circumstances. In 2012 the Board decided Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), holding that a temporary trip abroad authorised in advance by the government through an advance parole document was not the kind of "departure" the statute had in mind. That reading became the foundation for a common piece of practical advice: if you have unlawful presence in your history but you hold advance parole, you can travel.

What exactly changed

The Board has now reversed that reading. Under Matter of Delcarmen-Lara, travel abroad on advance parole is treated as a departure, so the bars attach if the traveller had already accrued more than 180 days of unlawful presence before leaving. The Board acknowledged that people had relied on the 2012 rule for more than a decade and limited its new interpretation to travel that occurs after the decision was issued. Someone who used advance parole to visit family in July 2026 is therefore in the same position they were in before. Someone who uses the same document to make the same trip next month is not. Unlawful presence itself is unchanged by the ruling: it is generally accrued by overstaying an authorised period of admission, by entering without inspection, or by being found to have violated status in the course of a benefits adjudication or removal proceeding.

Who it affects

The group is large and specific: people with a pending adjustment-of-status application who obtained advance parole while waiting, people with pending asylum claims who hold an advance parole document, DACA recipients who applied for advance parole to travel for work or study, and TPS holders who travel on the equivalent authorisation. What matters is not the category but the history. Someone who entered on a student visa, fell out of status for eight months, later married a US citizen and filed to adjust status now faces a three-year bar if they leave on advance parole. Someone who has held continuous lawful status throughout has no unlawful presence to trigger a bar and is not affected by this decision.

What this means in practice

An approved advance parole document is no longer, on its own, a safe basis to travel for anyone with unlawful presence in their record. If you are in that position with a trip booked, get your own case reviewed before you depart: the outcome turns on exactly how many days of unlawful presence you accrued and whether a waiver is realistically available to you. Employers and universities supporting staff or students in this situation should flag the change now rather than at the airport. Our United States country guide (/country-guides/united-states) covers the broader status framework, and the field guide section on visas and status (/field-guide/visas-and-status) explains how status, presence and re-entry interact.