As of October 21, 2026, travel on advance parole can trigger the 3-year and 10-year unlawful presence bars. In Matter of Delcarmen-Lara, 29 I&N Dec. 830, decided August 13, 2026, the Board of Immigration Appeals held that leaving the United States under a grant of advance parole is a "departure" under INA section 212(a)(9)(B)(i)(II), and overruled its 2012 decision in Matter of Arrabally and Yerrabelly (BIA, Matter of Delcarmen-Lara). USCIS now says that, as of August 13, 2026, departing after obtaining an Advance Parole Document is a departure for the bars in section 212(a)(9)(B)(i) (USCIS, Unlawful Presence and Inadmissibility).
The change on advance parole and unlawful presence in 2026 matters only if you have accrued more than 180 days of unlawful presence during a single stay (USCIS, Unlawful Presence and Inadmissibility). Most H-1B and L-1 workers who have kept their status have none. For anyone who does, advance parole is no longer a safe way to travel.
- The Board of Immigration Appeals decided Matter of Delcarmen-Lara, 29 I&N Dec. 830, on August 13, 2026.
- The decision holds that leaving the US under a grant of advance parole is a "departure" under INA section 212(a)(9)(B)(i)(II), the 10-year unlawful presence bar.
- It overrules Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which had treated advance parole trips as not being a departure.
- USCIS says that, as of August 13, 2026, departing after obtaining an Advance Parole Document is a departure for both the 3-year and 10-year bars in section 212(a)(9)(B)(i).
- The bars apply only to people with more than 180 days of unlawful presence during a single stay; a properly filed I-485 stops the accrual of unlawful presence.
- The Board applied its new holding prospectively and did not decide whether the respondent's own trip, which ended with her parole back into the US on January 1, 2024, was a departure.
- The waiver in INA section 212(a)(9)(B)(v) is limited to spouses, sons and daughters of US citizens and permanent residents.
What did the BIA decide in Matter of Delcarmen-Lara?
The headnote is a single holding:
"A departure from the United States pursuant to a grant of advance parole is a "departure" within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II). Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), overruled." Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), Interim Decision #4233
It is a published precedent, listed in Volume 29 of the Board's decisions (EOIR, Volume 29).
The respondent, a citizen of El Salvador with a 2006 removal order and a 2013 DACA grant, was paroled back into the United States on January 1, 2024, after a trip on advance parole. She asked the Board to reopen her case so she could adjust status through her husband's approved I-130 petition (BIA, Matter of Delcarmen-Lara).
The Board's reasoning is textual. "Depart" and "departure" are not defined in the INA, the dictionary meaning of "depart" is "to go away: leave," and the statute contains no language exempting advance parole (BIA, Matter of Delcarmen-Lara). Where Congress wanted to treat advance parole travel differently, as in INA section 201(c)(4)(A), it said so, and the Board read its silence here as deliberate (BIA, Matter of Delcarmen-Lara).
What was the old rule under Arrabally and Yerrabelly?
In Matter of Arrabally and Yerrabelly, a split Board held in 2012 that a person who leaves temporarily under advance parole does not make a "departure" under section 212(a)(9)(B)(i)(II) (BIA, Matter of Delcarmen-Lara). The 2012 Board called such a trip "qualitatively different from other departures" because it presupposes a return and the continued pursuit of the pending adjustment application (BIA, Matter of Delcarmen-Lara).
USCIS applied that reasoning to the 3-year bar as well, even though Arrabally addressed only the 10-year bar (USCIS, Unlawful Presence and Inadmissibility). From 2012 until August 2026, that meant an adjustment applicant with a long overstay could travel on advance parole without triggering either bar.
USCIS's Adjudicator's Field Manual still states the rule that Delcarmen-Lara restores, which the Board called the government's "longstanding interpretation" before Arrabally (BIA, Matter of Delcarmen-Lara):
"An alien with a pending adjustment of status application, who has accrued more than 180 days of unlawful presence time, will trigger the bars to admission, if he or she travels outside the United States subsequent to the issuance of an advance parole document." USCIS, Adjudicator's Field Manual, Chapter 40.9.2(a)(6)(A)
Does advance parole travel now trigger the 3-year and 10-year unlawful presence bars?
The Board's holding names only the 10-year bar in section 212(a)(9)(B)(i)(II) (BIA, Matter of Delcarmen-Lara). USCIS applies it to both bars. Its alert on the Form I-131 page reads:
"As of Aug. 13, 2026, departing the United States after obtaining an Advance Parole Document is a departure for purposes of inadmissibility under section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA)." USCIS, Form I-131 page (last reviewed/updated 10/07/2026)
The same alert appears on USCIS's Travel Documents page and its unlawful presence page (USCIS, Travel Documents; USCIS, Unlawful Presence and Inadmissibility). The two bars work like this under the statute (8 U.S.C. 1182, govinfo):
- 3-year bar: unlawful presence of more than 180 days but less than 1 year, a voluntary departure before removal proceedings begin, and a new attempt to be admitted within 3 years.
- 10-year bar: unlawful presence of one year or more, a departure or removal, and a new attempt to be admitted within 10 years.
USCIS counts the unlawful presence for both bars "during a single stay" (USCIS, Unlawful Presence and Inadmissibility). The Field Manual says that being permitted to return as a parolee "does not confer a waiver of inadmissibility" under the 3-year and 10-year bars (USCIS, Adjudicator's Field Manual, Chapter 40). The issue surfaces when the I-485 is decided, because an adjustment applicant must prove they are admissible for permanent residence (BIA, Matter of Delcarmen-Lara).
Lower on the Travel Documents page, an outdated paragraph still says "We follow the Board of Immigration Appeals decision in Matter of Arrabally and Yerrabelly" (USCIS, Travel Documents). The alert above it is the current rule.
Does the ruling apply to trips taken before August 13, 2026?
Because it was overruling its own precedent, the Board considered retroactivity:
"In consideration of the foregoing, we will apply this new holding prospectively." Matter of Delcarmen-Lara, 29 I&N Dec. 830, 836 (BIA 2026)
It found the change significant for adjustment eligibility and said the interest in applying it did not outweigh past expectations under the old rule. It therefore did not decide whether the respondent's own trip was a departure, and denied her motion to reopen as untimely and number-barred (BIA, Matter of Delcarmen-Lara).
The Board did not state a cutoff date. USCIS uses August 13, 2026, the date of the decision (USCIS, Form I-131). In our reading, a trip completed before that date should be assessed under Arrabally. A trip that began before August 13 and ended after it is a question for your attorney.
Who is affected by the Delcarmen-Lara ruling?
Only people who accrued more than 180 days of unlawful presence during a single stay and then leave on advance parole (USCIS, Unlawful Presence and Inadmissibility). That group is narrower than it sounds, because being unlawfully present is not the same as being out of status.
For people admitted until a specific date, USCIS says unlawful presence typically begins if you stay past the date on your Form I-94 (USCIS, Unlawful Presence and Inadmissibility). Falling out of status, for example after a layoff, does not by itself mean you are accruing unlawful presence; the Field Manual stresses "the importance of clearly distinguishing unlawful status from the accrual of unlawful presence" (USCIS, Adjudicator's Field Manual, Chapter 40). For layoff timing, see our piece on the proposal to end the 60-day grace period. For F-1 students and others admitted for duration of status, USCIS says they "generally begin accruing unlawful presence the day after their status ends, if they remain in the United States" (USCIS, Unlawful Presence and Inadmissibility).
A properly filed I-485 stops the count. For pending adjustment applications, the Field Manual says "Accrual of unlawful presence stops on the date the application is properly filed" (USCIS, Adjudicator's Field Manual, Chapter 40). Time spent waiting on a pending I-485 does not add to the total, but unlawful presence accrued before filing still counts (USCIS, Adjudicator's Field Manual, Chapter 40). Our guide to what adjustment of status involves explains the filing itself.
The people most exposed include:
- Immediate relatives who overstayed. Immediate relatives of US citizens are exempt from the section 245(c)(2) bar on adjusting after a status violation (8 U.S.C. 1255, govinfo), so they can be eligible despite a long overstay and still trigger a bar by traveling.
- DACA recipients and others with past unlawful presence. The respondent in Delcarmen-Lara had been found removable under INA section 212(a)(6)(A)(i) and later received DACA (BIA, Matter of Delcarmen-Lara).
- Employment-based applicants with status gaps. Section 245(k) forgives status violations for EB-1, EB-2, EB-3 and EB-5 applicants only up to an aggregate of 180 days (8 U.S.C. 1255, govinfo). In our reading, most applicants who genuinely qualify under 245(k) will fall short of the more-than-180-day threshold in their current stay, but the count should be checked, not assumed.
What about H-1B and L-1 workers who travel on their visas?
The abandonment rule is unchanged. Under 8 CFR 245.2(a)(4)(ii)(C), an adjustment applicant in lawful H-1 or L-1 status does not abandon the I-485 by traveling if, on return, they remain eligible for H or L status, resume work with the same employer and hold a valid H or L visa if required (8 CFR 245.2, govinfo). Our guide to travel while an I-485 is pending covers that exception in detail.
Arrabally only ever covered a person who left "pursuant to a grant of advance parole" (BIA, Matter of Delcarmen-Lara). A trip on an H-1B or L-1 visa was never protected by it. For H-1B and L-1 workers with no unlawful presence in their history, Delcarmen-Lara usually changes nothing, because there is no bar to trigger.
Is there a waiver if the bar applies?
Only for some. INA section 212(a)(9)(B)(v) allows a waiver for "an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence," and only on a showing of extreme hardship to that citizen or resident spouse or parent (8 U.S.C. 1182, govinfo).
That leaves a gap for many skilled immigrants. An EB-1A, EB-2 NIW or PERM-based applicant without a US citizen or permanent resident spouse or parent has no waiver under this clause, so a trip that triggers the bar can end the adjustment case.
What is the status of the Delcarmen-Lara ruling now?
Board decisions are binding on all DHS officers and immigration judges unless the Board or the Attorney General modifies or overrules them (8 CFR 1003.1, govinfo). As of October 21, 2026, we found no Attorney General referral and no federal court decision on the new reading. The Board noted that the Eleventh Circuit had applied the Arrabally definition in Ortiz-Bouchet v. U.S. Att'y Gen. (2013), but said that does not stop the Board from revisiting it (BIA, Matter of Delcarmen-Lara).
Status on October 21, 2026
| Item | Document | Status |
|---|---|---|
| Advance parole trip is a "departure" for the 10-year bar | Matter of Delcarmen-Lara, 29 I&N Dec. 830 (August 13, 2026) | Final BIA precedent; binding on DHS and immigration judges |
| Advance parole trip is not a departure | Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) | Overruled |
| Same rule for the 3-year bar | USCIS alerts on the Form I-131, Travel Documents and unlawful presence pages | USCIS position as of August 13, 2026 |
| Trips before August 13, 2026 | Delcarmen-Lara, retroactivity section | Holding applied prospectively; Board stated no cutoff date |
| Attorney General review or court challenge | None found | Not reported as of October 21, 2026 |
| Abandonment rule and H-1/L-1 exception | 8 CFR 245.2(a)(4)(ii) | Unchanged |
| Waiver of the bars | INA 212(a)(9)(B)(v) | Unchanged; limited to spouses, sons and daughters of US citizens and permanent residents |
What this means for you
Should you cancel travel? If you have never stayed past an I-94 date or been in the US without admission or parole, and you filed your I-485 while in status, Delcarmen-Lara most likely does not affect your trip, and the usual advance parole rules still apply (8 CFR 245.2, govinfo). If your current stay includes more than 180 days of unlawful presence before your I-485 was filed, traveling on advance parole now risks a 3-year or 10-year bar (USCIS, Form I-131), and parole back into the country does not cure it (USCIS, Adjudicator's Field Manual, Chapter 40).
Permanent residents are outside these bars entirely, because section 212(a)(9)(B)(i) excludes "an alien lawfully admitted for permanent residence" (8 U.S.C. 1182, govinfo). Long trips after the green card raise different issues, covered in our guide to reentry permits.
- Pull your I-94 history and line up every period of your current stay against its I-94 end date.
- Count any unlawful presence up to the date your I-485 was properly filed.
- If the count is anywhere near 180 days, do not travel on advance parole until your attorney has reviewed it.
- If you are in H-1B or L-1 status, confirm you meet every condition of the 8 CFR 245.2(a)(4)(ii)(C) exception before relying on your visa.
- Check whether you have a US citizen or permanent resident spouse or parent, since that decides whether a waiver exists at all.
Where to start
If you are planning an EB-1A or EB-2 NIW, the free evaluation compares your record with the criteria, and Frank finds real opportunities for the criteria you are missing. When you are ready to file, your petition is reviewed and filed by our partner law firm, Lai & Turner, who can also look at your travel history before you book a trip.
Sources
All checked October 21, 2026.
- Board of Immigration Appeals, Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026) (August 13, 2026). Holding, facts, reasoning, retroactivity analysis, Eleventh Circuit footnote and denial of the motion.
- EOIR, Board of Immigration Appeals precedent decisions, Volume 29 (accessed October 21, 2026). Listing of the decision as Interim Decision 4233.
- USCIS, Form I-131, Application for Travel Documents, Parole Documents, and Arrival/Departure Records (last reviewed/updated October 7, 2026). The Delcarmen-Lara alert and the August 13, 2026 effective date.
- USCIS, Travel Documents (last reviewed/updated August 21, 2026). The same alert and the older Arrabally paragraph.
- USCIS, Unlawful Presence and Inadmissibility (last reviewed/updated August 14, 2026). Single-stay rule, I-94 and duration of status accrual, and USCIS's earlier application of Arrabally to the 3-year bar.
- USCIS, Adjudicator's Field Manual, Chapter 40 (accessed October 21, 2026). Section 40.9.2 on advance parole departures, parole not waiving the bars, unlawful status versus unlawful presence, and pending adjustment applications.
- 8 U.S.C. 1182 (INA section 212), govinfo. Text of the 3-year and 10-year bars and the 212(a)(9)(B)(v) waiver.
- 8 U.S.C. 1255 (INA section 245), govinfo. The 245(c)(2) immediate relative exemption and 245(k).
- 8 CFR 245.2, govinfo (January 1, 2025 edition). Abandonment rule and the H-1 and L-1 travel exception.
- 8 CFR 1003.1, govinfo (January 1, 2025 edition). Binding effect of Board decisions.
Frequently asked questions
Does Matter of Delcarmen-Lara affect me if I have never overstayed?
Usually not. The 3-year and 10-year bars apply only to people who accrued more than 180 days of unlawful presence during a single stay and then leave. If you have always stayed within the dates on your Form I-94, or filed your I-485 while in status, you generally have no unlawful presence to trigger. The ordinary advance parole and abandonment rules for a pending I-485 still apply to your trip.
Does the Delcarmen-Lara ruling apply to advance parole trips taken before August 13, 2026?
The Board said it would apply its new holding prospectively and did not decide whether the respondent's own trip, which ended on January 1, 2024, was a departure. USCIS's alert says the rule applies as of August 13, 2026, the date of the decision. In our reading, a trip completed before that date should be assessed under the old Arrabally rule. A trip that started before and ended after August 13 is a question for your attorney.
Does the ruling change travel for H-1B and L-1 workers with a pending I-485?
Not directly. Under 8 CFR 245.2(a)(4)(ii)(C), an applicant in lawful H-1 or L-1 status does not abandon a pending I-485 by traveling if they return to the same employer, remain eligible for H or L status and hold a valid H or L visa if required. The old Arrabally protection only ever covered trips on advance parole, so a departure on a work visa was always a departure for the unlawful presence bars. H-1B and L-1 workers who have kept their status generally have no unlawful presence.
Can I get a waiver if advance parole travel triggered the unlawful presence bar?
Only if you have a qualifying relative. INA section 212(a)(9)(B)(v) allows a waiver for the spouse, son or daughter of a US citizen or permanent resident, and only on proof of extreme hardship to that citizen or resident spouse or parent. An employment-based applicant without such a relative has no waiver under this clause, so a trip that triggers the bar can end the adjustment case.
Does a pending I-485 stop unlawful presence from accruing?
Yes. USCIS's Adjudicator's Field Manual says accrual of unlawful presence stops on the date an adjustment application is properly filed, and the pending application protects the applicant from further accrual. Unlawful presence accrued before the filing date still counts, though. If you had more than 180 days of it in your current stay before filing, travel on advance parole now risks triggering a bar.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
