The new Board of Immigration Appeals (BIA) ruling affects Advance Parole because it says that traveling abroad on Advance Parole can now be considered a “departure”. This BIA decision of Matter of Delcarmen-Lara (Aug. 13, 2026) overturns the 2012 Arrabally & Yerrabelly BIA decision. Read on below for what immigrants need to know.
Old Advance Parole Rule (Arabally & Yerrabelly)
The 2012 Arrabally and Yerrabelly decision protected certain immigrants from unlawful presence bars if they had previously been in the country unlawfully and then travelled abroad with an Advance Parole. Here, a trip abroad with Advance Parole is not considered a “departure” for immigration purposes. This allows many TPS, DACA holders and green card applicants to travel abroad without negative immigration consequences.
Now the BIA has overruled Matter of Arrabally and Yerrabelly, and says that leaving the United States with Advance Parole is a “departure” within the meaning of §212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA).
New Advance Parole Rule (Delcarmen-Lara)
In the new BIA decision, the Board also clarified that a noncitizen may become inadmissible under section 212(a)(9)(B)(i)(II) after a trip abroad with an Advance Parole. This means that their trip abroad can trigger the 3- or 10-year unlawful presence bars.
The BIA stated that the new rule would apply going forward. However, since the new rule takes effect after their decision, the BIA did not examine whether the respondent’s own trip rendered her inadmissible. In the Matter of Delcarmen-Lara case, the BIA simply denied the motion to reopen saying that it was filed late. Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026).
Noncitizens Affected by the New Advance Parole Ruling
Non-citizens affected by the new BIA Advance Parole ruling include the following people who have accrued unlawful presence:
- DACA recipients
- Adjustment of Status applicants with prior unlawful presence
- TPS holders traveling on Advance Parole
- People with pending green card applications
- Applicants with past unlawful presence of more than 180 days
- Immigrants relying on Advance Parole for emergencies or family visits
Who Is Not Affected by the Advance Parole Changes
Who Is Not Affected by the Advance Parole Changes: Adjustment applicants and other immigrants who travelled and returned to the US with an Advance Parole by August 13, 2026, should not be affected by this BIA ruling. Also, people traveling on Advance Parole who have not accrued unlawful presence should not face inadmissibility problems due to this new rule.
Seek Legal Advice If You Have Concerns
If you have concerns about your case, please speak to an immigration attorney about your pending Adjustment application or before applying for Adjustment of Status.
In addition, to avoid problems, TPS and DACA holders and green card applicants with unlawful presence should consult with an immigration attorney before any travel abroad. Prior to this ruling, as a matter of caution, at our law office we generally advise our Adjustment clients with any unlawful presence to avoid travel abroad before receiving their green cards.
Finally, this ruling may have some consequences for certain applicants who return after August 14, 2026. It remains to be seen how the Department of Homeland Security (DHS) implements this BIA ruling and if there will be any legal challenges.
Thank you for reading this article.
Disclaimer: This general information guide is not a substitute for specific legal advice from your lawyer about your situation.
Contact Our Immigration Lawyer
To contact our immigration lawyer for your immigration matter or to find out the best path for you, please visit our website www.emenikelaw.com and select Book Appointment. Law Offices of Doreen A Emenike (626) 256-8500.
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