For over a decade, the settled law has been that noncitizens who travel pursuant to a grant of advance parole do not technically “depart” the United States for immigration purposes. This may seem like a small technicality, but it has been a lifeline to thousands of people who entered without documentation, many as small children, yet were otherwise ineligible to access a pathway to lawful permanent residence in the United States.
This is because when someone with unlawful presence in the United States “departs,” they may trigger a years-long bar to reentry and, in many cases, face a much more difficult path to obtaining lawful permanent residence.
Advance parole has been used to give people in this situation a way to move forward without triggering an unlawful presence bar. They have been able to travel and return to the United States on advance parole, and that parole can satisfy the “paroled” requirement for adjustment of status under certain circumstances.
Today, the Board of Immigration Appeals severed this lifeline for many immigrants with the stroke of a pen.
This is a major change in immigration law, and questions about how this decision will apply in particular circumstances will undoubtedly continue to develop.
What happened?
In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the Board overruled a prior case called Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).
In Arrabally and Yerrabelly, the 2012 BIA held that a departure with advance parole was different from other departures because it “presupposes both that [the noncitizen] will be permitted to return to the United States [] and that he [or she] will, upon return, continue to pursue” permanent residence in the United States. Arrabally and Yerrabelly, 25 I&N Dec. at 778.
However, that analysis was not based on anything explicitly written in the law. And today, the BIA held in Delcarmen-Lara that if Congress had intended to exempt certain departures from the consequences of the unlawful presence bars, it would have explicitly done so.
Our new reality, according to this case, is that noncitizens are still free to travel on advance parole, but that travel can now trigger the unlawful presence bars.
What are the unlawful presence bars?
When a noncitizen accumulates at least one year of unlawful presence and then departs the United States, they are generally barred from seeking admission again for 10 years. If a noncitizen has more than 180 days but less than one year of unlawful presence, the bar is generally 3 years.
It is important to note that these bars are not triggered unless and until someone with the requisite amount of unlawful presence departs from the United States. This is why knowing when someone “departs” is vital. It could be the difference between returning on advance parole and being barred from the United States for the next decade.
What should you do?
First, know that this change is NOT retroactive. It applies to future travel. The BIA specifically determined that its new holding would apply prospectively.
If you have ever been out of status for any period or worry that you may have fallen out of status, consult with an attorney before you travel.
Knowing when and how you may have accumulated unlawful presence is a complex issue, and you don’t have to wonder or try to deal with this on your own. An experienced immigration lawyer can help you understand how this decision may affect you and whether traveling is still an option for you.