At a glance (120 words): For fourteen years, a Board of Immigration Appeals decision called Matter of Arrabally and Yerrabelly protected people who traveled abroad on advance parole: the trip did not count as a “departure” that could trigger the 10-year unlawful presence bar. On August 13, 2026, the Board overruled it. In Matter of Delcarmen-Lara, the Board held that leaving the United States on advance parole is a departure. If you have one year or more of unlawful presence in your past, a trip on advance parole taken now can make you inadmissible for ten years and can block a green card filed from inside the U.S. This guide explains what changed, who is at risk, and what to do before any trip.
What the Board Decided
Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), was decided on August 13, 2026. The Board of Immigration Appeals is the highest administrative body that interprets U.S. immigration law, and its published precedent decisions bind immigration judges and DHS officers, including USCIS.
The question was simple: when someone leaves the United States on a grant of advance parole and comes back, have they made a “departure” under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act?
In 2012, the Board said no. In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), it reasoned that a trip on advance parole was different from an ordinary departure because the government had approved the trip in advance and expected the person to return and continue their case.
In Delcarmen-Lara, the Board reversed itself. It read the plain language of the statute and found nothing that carves out an exception for advance parole. Its conclusion: a departure on advance parole is a departure, and a person “may become inadmissible under this section of the INA by virtue of a trip abroad undertaken pursuant to a grant of advance parole.” Arrabally is overruled.
What the 10-Year Bar Is
The law makes a person inadmissible if they were unlawfully present in the United States for one year or more and then seek admission again within ten years of their departure. This is section 212(a)(9)(B)(i)(II) of the INA, usually called the 10-year bar.
Inadmissibility matters inside the United States, not just at the border. To adjust status to permanent residence on Form I-485, an applicant must prove they are admissible. A person who triggers the 10-year bar cannot get a green card through adjustment unless they qualify for and receive a waiver.
A few basic rules about unlawful presence, which generally apply:
- Time before age 18 does not count. Unlawful presence does not accrue while a person is under 18.
- A properly filed I-485 generally stops the clock. Time while an adjustment application is pending is generally not counted as unlawful presence. Time before filing can be.
- Periods in deferred action (such as DACA) or TPS generally do not count. Unlawful presence from before those grants, after age 18, can.
- The bar only triggers on a departure. Unlawful presence alone does not create the 10-year bar. Leaving the country does. That is why this decision matters so much: it turns a trip on advance parole into that departure.
Who Is Now at Risk
Anyone who has one year or more of unlawful presence in their history and travels on advance parole now. Common examples:
- Adjustment applicants who overstayed a visa. Someone who entered legally, stayed more than a year past their authorized stay, and then filed an I-485 through a U.S. citizen spouse or parent. Under Arrabally, a trip on advance parole while the I-485 was pending was generally treated as safe. It no longer is.
- DACA recipients who plan to travel. A DACA recipient who was unlawfully present for a year or more after turning 18, before receiving DACA, now risks the bar by traveling on advance parole. The respondent in Delcarmen-Lara herself was a DACA recipient.
- People who planned to use a trip to create a lawful entry. Some people who entered without inspection traveled on advance parole so that their return would count as a lawful entry, which can open the door to adjusting status through a U.S. citizen spouse or adult child. For anyone with a year or more of unlawful presence, that strategy now carries the risk of the 10-year bar.
People with no unlawful presence in their history, for example someone who has always been in lawful status and filed the I-485 before their status expired, are not affected by this bar. Whether you have unlawful presence, and how much, is a legal question that depends on your dates, your age, and your filings. Do not assume.
TPS holders travel on a different kind of travel document with its own rules. Whether and how this decision affects a particular TPS holder’s trip is fact-specific. Ask before traveling.
What About Trips You Already Took?
The Board said it will apply the new rule prospectively, meaning going forward. It did not apply it to the respondent’s own trip, which took place in January 2024.
That means a trip on advance parole taken before the decision should generally still be analyzed under the old Arrabally rule. But how USCIS and the immigration courts apply that line in individual cases is exactly the kind of question an attorney should review with your actual travel dates in hand.
What About the 3-Year Bar?
There is a second, shorter bar. A person unlawfully present for more than 180 days but less than one year who departs voluntarily can be barred for three years. Delcarmen-Lara ruled only on the 10-year bar. It did not decide the 3-year bar. Until an attorney tells you otherwise for your situation, treat a trip on advance parole as a risk if you have more than 180 days of unlawful presence.
Is There a Waiver?
Yes, for some people. A waiver of the unlawful presence bars (filed on Form I-601) is available only if refusing admission would cause extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Hardship to your children alone does not qualify. The waiver is discretionary, it takes time, and approval is never guaranteed. Planning a trip that depends on getting a waiver afterward is a serious gamble.
Before You Travel: What to Do Now
- Do not travel on advance parole until someone has checked your unlawful presence history. This includes emergency advance parole for a family illness or funeral. A short trip can have a ten-year consequence.
- Gather your dates. Every entry and exit, every visa and I-94, when your status expired, when you turned 18, when you received DACA or TPS, and when you filed any application with USCIS.
- Get your records if you are missing dates. A FOIA request for your immigration file can fill gaps. See our guide to requesting your A-File through FOIA.
- If you already have an advance parole document in hand, it does not protect you from this bar. Advance parole documents have long warned that travelers may be found inadmissible when they return. The Board pointed to those warnings in its decision.
- Review the full travel checklist. Our advance parole checklist for adjustment applicants covers documents, reentry, and the other situations where travel is risky.
Could This Change Again?
Possibly. BIA decisions can be challenged in the federal courts of appeals, and some courts have applied Arrabally in the past. The Board itself noted that the Eleventh Circuit had followed the older rule. For now, Delcarmen-Lara is binding precedent for immigration judges and USCIS. Plan around the law as it stands today, not around a change that may never come.
When to Call an Immigration Attorney
If you have a pending green card case, DACA, or any history of overstaying or entering without inspection, talk to an attorney before you book any international trip. The Law Offices of Karen S. Monrreal help clients with family-based green card cases and waivers of inadmissibility. Call (775) 826-2380 before you travel.
Frequently Asked Questions
What did Matter of Delcarmen-Lara decide?
On August 13, 2026, the Board of Immigration Appeals held that leaving the United States on advance parole is a “departure” under the 10-year unlawful presence bar, INA 212(a)(9)(B)(i)(II). It overruled Matter of Arrabally and Yerrabelly (2012), which had said the opposite.
Is it still safe to travel on advance parole while my green card case is pending?
It depends on your history. If you have one year or more of unlawful presence, a trip on advance parole can now trigger the 10-year bar and block your green card. If you have no unlawful presence, this bar does not apply to you. Have your history checked before any trip.
Does the decision apply to trips I took before August 13, 2026?
The Board said it will apply the new rule prospectively and did not apply it to the respondent’s own 2024 trip. Earlier trips should generally still be judged under the old rule, but have an attorney review your specific dates.
I have DACA. Can I still travel on advance parole?
Only after checking your unlawful presence history. Time in DACA generally does not count as unlawful presence, but time after age 18 and before DACA can. If that period was a year or more, traveling now can trigger the 10-year bar.
Can the 10-year bar be waived?
Sometimes. A Form I-601 waiver requires showing extreme hardship to a U.S. citizen or permanent resident spouse or parent. It is discretionary and not guaranteed.
Sources: Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), justice.gov/eoir; INA 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B).
This article is general information, not legal advice. Immigration law changes, and the effect of this decision depends on each person’s history. Speak with an immigration attorney about your own situation before traveling.
Questions about your own case?
This guide is general information, not legal advice for your situation. New clients are taken from a waiting list. Call the office to ask about current availability.