Advance Parole in 2026: New BIA Decision Could Trigger the 10-Year Bar for Some Immigrants
A new decision by the Board of Immigration Appeals (BIA) changed a rule that, for more than a decade, played an important role in immigration strategies for people who needed to travel outside the United States using Advance Parole.
On August 13, 2026, the BIA published its decision in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026). The case expressly overruled the precedent established in Matter of Arrabally and Yerrabelly in 2012 and held that leaving the United States with Advance Parole may constitute a “departure” for purposes of the inadmissibility provision related to unlawful presence.
The change is especially important for people who accumulated unlawful presence before leaving the United States.
In practice, having approved Advance Parole still allows a person to present themselves at a port of entry and request parole when returning to the United States. However, the document does not eliminate other possible grounds of inadmissibility and, after this new decision, should not be treated as automatic protection from the consequences of unlawful presence.
What is Advance Parole?
Advance Parole is a travel authorization used in certain immigration situations to allow a person who is in the United States to travel temporarily abroad and then present themselves again at the U.S. border.
It may be available in contexts involving, among other situations:
- DACA;
- certain Adjustment of Status cases;
- VAWA;
- certain humanitarian programs;
- and other situations in which the law or DHS permits temporary travel.
It is important to understand that Advance Parole is not a visa and does not guarantee entry into the United States.
The instructions for Form I-131 specifically warn that, upon return, a person is considered an applicant for admission, is subject to immigration inspection, and may be found inadmissible. The final decision regarding parole at the port of entry belongs to the Department of Homeland Security and CBP.
Therefore, approval of a travel authorization has never meant that every other aspect of a person’s immigration history is automatically resolved.
What is “unlawful presence”?
Unlawful presence is a specific concept under U.S. immigration law.
Generally, a person may begin to accrue unlawful presence when they remain in the United States beyond an authorized period of stay or when they are in the country without having been admitted or paroled, although there are multiple exceptions and special rules that can affect this calculation.
This calculation is extremely important because the INA imposes consequences based on the amount of unlawful presence accumulated before a particular departure from the United States.
In general terms:
More than 180 days, but less than one year: a 3-year bar may apply if the other statutory requirements are met.
One year or more: a departure may trigger the so-called 10-year bar under INA § 212(a)(9)(B)(i)(II).
The decision in Delcarmen-Lara directly addresses the rule applicable to people who accumulated one year or more of unlawful presence.
How did the rule work before Matter of Delcarmen-Lara?
Since 2012, the precedent in Matter of Arrabally and Yerrabelly had created an important distinction.
The BIA had held that a person who temporarily left the United States with Advance Parole did not make a “departure” for the specific purposes of INA § 212(a)(9)(B).
In other words, government-authorized travel was treated differently from an ordinary departure.
That interpretation had a significant impact on various immigration strategies because, depending on all of the other circumstances of the case, a person could travel with Advance Parole without that trip itself triggering the 10-year unlawful-presence bar.
The BIA itself explained in Arrabally that preauthorized travel was qualitatively different from other departures because there was an expectation that the person would return to the United States and, in many cases, continue an ongoing immigration process.
For approximately 14 years, that precedent was an important part of the legal analysis involving Advance Parole.
What happened in Matter of Delcarmen-Lara?
The case involved Milagro Delcarmen-Lara, a citizen of El Salvador.
According to the decision, she had been found removable and received a removal order in 2006, which the BIA affirmed in 2008. She later received DACA in 2013.
Her husband, a U.S. citizen, had filed a family-based petition on her behalf, which USCIS approved.
Later, Delcarmen-Lara temporarily traveled outside the United States using Advance Parole and was paroled back into the country on January 1, 2024. She subsequently filed a second motion to reopen in an effort to pursue Adjustment of Status.
While reviewing the case, the BIA decided to reconsider one of the central legal questions created by Arrabally:
When a person physically leaves the United States using Advance Parole, has that person actually left — or “departed” — the United States for purposes of INA § 212(a)(9)(B)?
The BIA’s answer is now yes.
The BIA’s new interpretation
The BIA concluded that the word “departure” should be given its ordinary meaning.
According to the decision, the INA does not contain an exception providing that travel with Advance Parole is not a departure.
For that reason, the Board held:
a departure from the United States made pursuant to a grant of Advance Parole is a “departure” for purposes of INA § 212(a)(9)(B)(i)(II).
As a result, Matter of Arrabally and Yerrabelly was expressly overruled.
This seemingly technical change may have significant practical consequences.
How can this trigger the 10-year bar?
Imagine a person who accumulated more than one year of unlawful presence in the United States.
Before the new decision, that person might have relied on Arrabally for the position that travel authorized through Advance Parole was not the “departure” required to trigger INA § 212(a)(9)(B)(i)(II).
After Delcarmen-Lara, that protection should no longer be assumed for future travel.
If the person:
- accumulated one year or more of unlawful presence;
- later physically leaves the United States using Advance Parole; and
- seeks admission again within the period specified by law;
the trip may be treated as the departure that triggers the 10-year ground of inadmissibility.
The BIA itself stated that a person may become inadmissible under this section of the INA because of international travel undertaken with Advance Parole.
Does this mean everyone with Advance Parole should cancel a trip?
No.
The decision does not mean that every person with Advance Parole is subject to a 10-year bar.
The central issue is the person’s immigration history.
Someone who has not accumulated the required period of unlawful presence may be in a completely different position from someone who remained in the United States without status for years.
There are also statutory exceptions, specific rules for certain groups, and potential waivers.
For that reason, two immigrants holding exactly the same Advance Parole document may face completely different legal consequences when traveling internationally.
Who should pay particular attention after this decision?
The analysis becomes especially important for people who:
- entered the United States without inspection;
- remained beyond the period authorized by a visa;
- accumulated long periods without lawful status;
- have or previously had DACA;
- are pursuing Adjustment of Status;
- have a VAWA-based case;
- have a prior removal order;
- have previously appeared before Immigration Court;
- plan to use travel with Advance Parole as part of a strategy for a later Adjustment of Status application.
This does not mean that all of these groups are prohibited from traveling.
It means only that the existence of Advance Parole, by itself, no longer answers the question of whether the trip is legally safe from an immigration perspective.
What about VAWA cases?
VAWA requires particularly careful analysis because immigration law contains specific protections and exceptions for certain VAWA cases.
For example, INA § 212(a)(9)(B)(iii)(IV) provides an exception for certain VAWA self-petitioners when the connection required by law exists between the battery or extreme cruelty and the corresponding immigration violation.
USCIS materials show that this exception depends on the specific statutory requirements and should not be assumed simply because a VAWA petition exists.
Therefore, saying that “VAWA is not affected” or that “every VAWA case is subject to the bar” would be an inaccurate oversimplification.
The analysis remains individualized.
What about people who already traveled with Advance Parole before this decision?
This is one of the most important aspects of Matter of Delcarmen-Lara.
The BIA itself recognized that it was overruling a longstanding precedent and conducted a specific retroactivity analysis.
After considering factors such as the reliance immigrants may have placed on the prior rule and the significant impact of the change, the Board determined that its new interpretation would apply prospectively.
The BIA did not, in fact, apply the new interpretation to Delcarmen-Lara’s own 2024 trip.
This is extremely important for people who previously used Advance Parole in reliance on Arrabally.
However, “prospective application” does not mean that every prior situation is automatically resolved.
The date of travel, type of case, existence of a removal order, amount of unlawful presence, jurisdiction, and other factors may still be relevant.
I have approved Advance Parole. Can I still travel?
Approval of the document and whether it is legally advisable to use it are two different questions.
A person may have perfectly valid Advance Parole and still have other immigration issues that make leaving the United States risky.
The official Form I-131 instructions make clear that issuance of Advance Parole does not guarantee that DHS will grant parole when the person returns.
After Delcarmen-Lara, one additional question becomes essential:
How much unlawful presence did the person accumulate before leaving the United States?
That question should be answered before the trip, not after the person is already outside the country.
What happens to the 3-year bar?
The unlawful-presence provisions also include a rule for people who accumulated more than 180 days, but less than one year, which may result in a 3-year bar.
However, the language and requirements of that provision are not identical to those governing the 10-year bar.
Matter of Delcarmen-Lara directly addresses INA § 212(a)(9)(B)(i)(II), which applies to one year or more of unlawful presence.
For that reason, cases involving between 180 days and one year should be analyzed specifically rather than assuming that every legal issue will be identical.
Is there a waiver for the unlawful-presence bar?
In certain cases, yes.
INA § 212(a)(9)(B)(v) allows a waiver of the unlawful-presence bars in certain circumstances.
Generally, for this waiver, the law recognizes certain spouses or parents who are U.S. citizens or lawful permanent residents as qualifying relatives, and the applicant typically must demonstrate extreme hardship to the qualifying relative, in addition to meeting the other requirements and satisfying the discretionary analysis.
But a waiver should not be treated as an automatic solution.
It may be necessary to evaluate, for example:
- which ground of inadmissibility actually applies;
- whether there are other grounds of inadmissibility;
- who the qualifying relative is;
- whether the applicable waiver is Form I-601 or whether another strategy is required;
- whether Form I-601A may be available in a consular processing case;
- whether a removal order exists;
- whether Form I-212 may also be required;
- and whether other exceptions under the INA apply.
Form I-601A, for example, is used by certain immigrant visa applicants to request a provisional unlawful presence waiver before departing the United States for consular processing.
Can Advance Parole still help with Adjustment of Status?
Possibly, depending on the case.
Another important concept is that parole and admission are not exactly the same thing, although a person who has been inspected and paroled may, in certain circumstances, satisfy one of the requirements of INA § 245(a) for Adjustment of Status.
But satisfying the inspection-and-parole requirement does not automatically mean that the person is admissible for permanent residence.
These are different legal analyses.
That is precisely why Delcarmen-Lara is so important: a trip could produce a favorable consequence for one part of the Adjustment of Status analysis while simultaneously creating a new issue involving inadmissibility based on unlawful presence.
For that reason, strategies previously considered under Arrabally need to be reevaluated in light of the new precedent.
I have a removal order. Is the risk greater?
A prior deportation or removal order adds another layer of complexity.
In addition to unlawful presence, leaving the United States may implicate other INA provisions that apply to people who were previously removed.
The Delcarmen-Lara case itself involved a person with a prior removal order, although the BIA also denied her motion to reopen on procedural grounds: the motion had been filed more than 16 years after the final administrative order and was her second motion to reopen.
Therefore, a person with a removal order should not analyze a trip only through the lens of Advance Parole.
Five questions that should be answered before traveling
Before using Advance Parole, an immigration analysis should consider at least the following:
- How much unlawful presence was accumulated?
The dates must be calculated correctly, including whether particular periods should or should not be counted. - Is there a prior removal or deportation order?
That may create consequences independent of unlawful presence. - Are there other grounds of inadmissibility?
Fraud, misrepresentation, certain criminal violations, prior entries, and other issues can completely change the analysis. - Is an exception or waiver available?
VAWA and other categories may be subject to special rules. - Does the expected benefit of the trip justify the immigration risk?
That question should be answered before the person leaves the United States.
Frequently Asked Questions About the New Rule
I have DACA and Advance Parole. Does this decision apply to me?
Having DACA alone does not determine the answer. Delcarmen-Lara herself had received DACA. The key issue is to evaluate unlawful presence and the person’s complete immigration history.
I already traveled with Advance Parole in 2023 or 2024. Do I now have a 10-year bar?
That cannot be determined based solely on the existence of the trip. The BIA determined that its new interpretation would apply prospectively and did not apply the new rule to the respondent based on her prior travel. Trips made before the decision must be analyzed according to their specific circumstances.
I have approved Advance Parole, so is the government required to let me return?
No. USCIS instructions expressly state that Advance Parole does not guarantee parole at the port of entry. The person remains subject to immigration inspection.
Does more than one year without status automatically mean I have a 10-year bar?
Not necessarily. The existence of the bar depends not only on the amount of time, but also on factors such as when unlawful presence began to accrue, possible exceptions, and whether there was a relevant departure. The new decision makes the departure analysis particularly important.
Could the decision change again?
Because this is a new precedential BIA decision, it carries significant weight in immigration adjudications. However, administrative decisions may be subject to further litigation, federal court decisions, legislative changes, or later changes in interpretation.
For that reason, this is an area that warrants close monitoring in the coming months.
Conclusion
Matter of Delcarmen-Lara represents one of the most significant recent changes involving Advance Parole and unlawful presence.
For years, Matter of Arrabally and Yerrabelly allowed travel authorized through Advance Parole to be treated differently for purposes of the unlawful-presence bar.
That interpretation has now been expressly overruled.
Under the new interpretation, a person who accumulated one year or more of unlawful presence may face the 10-year bar if a future trip using Advance Parole is considered the departure that triggers INA § 212(a)(9)(B)(i)(II).
At the same time, the BIA decided to apply the new interpretation prospectively, an extremely important point for people who traveled previously in reliance on the rule that had existed since 2012.
The main takeaway is simple:
Advance Parole is authorization to travel; it is not a guarantee that travel is legally safe for every immigration history.
Anyone with Advance Parole — especially people with a history of unlawful presence, DACA, VAWA, a removal order, or a pending Adjustment of Status case — should carefully review their immigration history before leaving the United States.
This content is provided for informational purposes only and does not constitute legal advice. The consequences of international travel depend on the specific facts and immigration history of each individual.