EOIR BIA Decision on Advance Parole

The Board of Immigration Appeals (“BIA”) has overturned longstanding precedent that allowed certain foreign nationals who had accrued unlawful presence in the United States to travel internationally with Advance Parole without triggering the unlawful-presence bar based on that departure.

In its August 13, 2026 decision, Matter of Delcarmen-Lara, the BIA held that travel outside the United States pursuant to a grant of Advance Parole constitutes a “departure” for purposes of the unlawful-presence bar under INA § 212(a)(9)(B). In doing so, the BIA expressly overruled its 2012 decision in Matter of Arrabally and Yerrabelly.

For more than a decade, Matter of Arrabally and Yerrabelly protected certain individuals who had accrued unlawful presence in the United States from triggering the unlawful-presence bar when they temporarily traveled abroad with Advance Parole. The BIA has now reversed that interpretation, concluding that the statute does not exempt departures made pursuant to Advance Parole.

Who Is Affected?

This decision is particularly significant for adjustment of status applicants who accrued unlawful presence before filing their applications for permanent residence.

Under INA § 212(a)(9)(B), an individual who accrues more than 180 days but less than one year of qualifying unlawful presence may become subject to a three-year bar upon departure from the United States. An individual who accrues one year or more of qualifying unlawful presence may become subject to a ten-year bar upon departure.

As a result of Matter of Delcarmen-Lara, individuals who have accrued sufficient unlawful presence may now trigger an unlawful-presence bar by traveling abroad with Advance Parole. This could affect their admissibility and eligibility to adjust status to permanent residence after returning to the United States.

Advance Parole Is No Longer Protection Against the Unlawful-Presence Bar

Advance Parole remains available to eligible foreign nationals and continues to serve an important function by permitting certain individuals to seek parole into the United States after temporary international travel. However, an approved Advance Parole document should no longer be viewed as protection against the potential immigration consequences of departing the United States after accruing unlawful presence.

Importantly, not every period in which an individual lacks lawful immigration status constitutes “unlawful presence” for purposes of INA § 212(a)(9)(B). Whether an individual has accrued unlawful presence—and how much—depends on the person's particular immigration history.

The New Rule Applies Prospectively

Recognizing that individuals have relied on Matter of Arrabally and Yerrabelly for more than a decade, the BIA determined that its new interpretation will apply prospectively rather than retroactively. The decision was issued on August 13, 2026.

Individuals who previously traveled with Advance Parole while Matter of Arrabally and Yerrabelly was controlling therefore should not assume that the BIA's new interpretation will be applied retroactively to those prior departures.

Consult Immigration Counsel Before Traveling

If you have a pending adjustment of status application and have ever accrued unlawful presence in the United States, we strongly recommend consulting with immigration counsel before traveling internationally—even if you have a valid Advance Parole document.

Whether international travel will trigger an unlawful-presence bar depends on an individual's specific immigration history, including the amount and timing of any unlawful presence and whether any statutory exceptions apply.

We will continue to monitor the implementation and impact of Matter of Delcarmen-Lara and provide updates as further guidance and developments become available.

This alert is for informational purposes only. Please contact us if you would like to discuss these developments further.