The Board of Immigration Appeals (BIA) has issued a significant precedent decision that changes the immigration consequences of international travel on Advance Parole for certain foreign nationals who have accrued unlawful presence in the United States. It does not per se impact persons who maintain other lawful status and seek to return to the U.S. with an approved Advance Parole document. But each case is unique and under current conditions it is best to avoid international, non-essential travel.
In a judgement of August 13, 2026, the BIA held that travel outside the United States pursuant to Advance Parole can constitute a “departure” for purposes of the three- or ten-year unlawful presence bars. The decision expressly overrules the BIA’s 2012 decision in Matter of Arrabally and Yerrabelly, which had protected many Advance Parole travelers from triggering these bars merely by leaving the country with approved advance parole.
What Has Changed?
Under U.S. immigration law, a foreign national who departs the United States after accruing more than 180 days but less than one year of unlawful presence, may become subject to a three-year bar to admission. If the person has accrued one year or more of unlawful presence before departure, the resulting bar may be extended to ten-years. These bars can affect eligibility for a visa, admission to the United States, and adjustment of status, although waivers may be available in limited circumstances.
For more than a decade, Matter of Arrabally and Yerrabelly provided an important exception. In that case, the BIA concluded that travel on Advance Parole did not amount to the type of departure that triggered the unlawful presence bars. Matter of Delcarmen-Lara reverses that position. Going forward, a person who leaves the United States on Advance Parole after accruing sufficient unlawful presence may trigger the applicable three- or ten-year bar.
The Decision Applies Prospectively
The BIA stated that its new interpretation will apply prospectively. This means that Advance Parole travel that occurred before August 13, 2026, will not be treated under the new rule as having triggered an unlawful presence bar merely because the BIA has now changed its interpretation. However, departures on or after the date of the decision are subject to the new framework.
This prospective application is especially important for individuals who previously traveled in reliance on the 2012 precedent. It also means that anyone considering future travel should reassess the risks before departing, even if an Advance Parole document has already been approved. Travelers should also recognize that the timing of prior unlawful presence can be outcome-determinative, and that a seemingly routine trip may create consequences that affect future visa processing, adjustment of status, or return to the United States.
Who May Be Affected?
The ruling may have serious implications for individuals who have accrued more than 180 days of unlawful presence and who hold or may qualify for Advance Parole based on a pending adjustment of status application, a pending asylum application, DACA, Temporary Protected Status (TPS), or another immigration benefit. The impact will depend on the individual’s complete immigration history.
Determining whether a person has accrued unlawful presence is not always straightforward. Several factors may be relevant, including prior entries and departures, overstays, entry without inspection, and periods of authorized stay. Pending applications, status violations, and prior immigration proceedings may also affect the analysis. In addition, statutory exceptions, tolling provisions, and available waivers may need to be considered.
Advance Parole Is Not a Guarantee of Consequence-Free Travel
An approved Advance Parole document authorizes a traveler to seek parole into the United States after international travel, but it does not guarantee that departure will have no effect on admissibility or other immigration issues. Following Matter of Delcarmen-Lara, travelers with any possible history of unlawful presence should not assume that possession of Advance Parole makes international travel legally risk-free.
What Should Travelers Do Now?
Under the current environment, we advise all clients not to travel abroad if they have any pending immigration applications or petitions. However, if they must travel, individuals who currently hold Advance Parole and are considering international travel should have their immigration history reviewed before leaving the United States. In particular, anyone with a history of overstaying, unauthorized presence, entry without inspection, or prior status issues should obtain case-specific legal advice before making travel arrangements.
LawQuest is closely monitoring the implementation and impact, and will provide additional updates as further guidance or developments emerge.
Disclaimer: This alert is provided for informational purposes only and does not constitute legal advice. Receipt of this communication does not establish an attorney-client relationship. Please consult with a qualified immigration attorney regarding your specific circumstances.
