In a decision that immediately reshapes the landscape for hundreds of thousands of adjustment of status applicants, DACA recipients, and TPS holders, the Board of Immigration Appeals on August 13, 2026, issued a precedential ruling that eliminates one of the most important legal protections for immigrants traveling internationally on advance parole.
In Matter of Milagro Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), decided August 13, 2026, the BIA held that a trip outside the United States pursuant to a grant of advance parole is a "departure" for purposes of INA § 212(a)(9)(B)(i)(II).
The Board expressly overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which for more than 14 years had provided protection to people who had accrued unlawful presence and traveled abroad on advance parole.
The practical impact is stark:
a person who accrued unlawful presence and then leaves the United States using advance parole may trigger a 3-year or 10-year inadmissibility bar, depending on how much unlawful presence was accumulated.
What Changed — and Why It Matters
To understand the significance of Delcarmen-Lara, it helps to revisit the framework it dismantled.
Under U.S. immigration law, noncitizens who accrue more than 180 days of unlawful presence and then depart the country face severe consequences.
More than 180 days but less than one year of unlawful presence, followed by departure, may trigger a 3-year bar, while one year or more of unlawful presence, followed by departure, may trigger a 10-year bar.
These bars render a person inadmissible — effectively locking them out of the United States for years.
Since 2012, Matter of Arrabally and Yerrabelly held that a person who temporarily left the United States with advance parole had not made a "departure" for purposes of the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act.
This allowed many individuals — including DACA recipients, TPS beneficiaries, and pending adjustment-of-status applicants — to briefly leave the U.S. and return without accidentally triggering a 3-year or 10-year bar to re-entry.
The BIA has now rejected that interpretation, concluding that the statute does not provide an exception for travel authorized through advance parole.
The Board reasoned in plain language — it looked up the ordinary meaning of the word "depart," which the dictionary defines as "to go away: leave," and found nothing in the statute that carves out a trip taken on advance parole.
The Facts Behind the Decision
The respondent in Delcarmen-Lara was a DACA recipient who was granted DACA in 2013 and later sought to pursue adjustment of status based on an approved immigrant petition filed by her husband. She had temporarily left the United States and returned under advance parole in January 2024.
Milagro Delcarmen-Lara is a national of El Salvador who entered the United States illegally at some point in the distant past (more than two decades ago).
Delcarmen-Lara states the Board had impermissibly read an exception into the statute, and it now "clarif[ies] that the term 'departure' under this section of the INA does not include an exception for aliens who leave the country temporarily under a grant of advance parole."
Prospective Application: Prior Trips Protected
In a significant qualification,
the Board stated that its new rule applies prospectively, not retroactively. Therefore, it does not change the consequences of an advance-parole trip completed before August 13, 2026, based solely on this new decision.
After considering the reliance interests created by Arrabally, the BIA stated that it would apply its new holding prospectively and declined to decide whether the respondent's own 2024 advance-parole trip constituted a § 212(a)(9)(B) departure.
Someone who completed advance-parole travel while Arrabally governed has a strong argument directly from Delcarmen-Lara itself that the new interpretation cannot be applied retroactively to that historical trip.
However,
the precise scope of the BIA's prospective application holding may be addressed in future litigation.
Who Is Most Affected?
The decision carries especially significant consequences for several groups:
DACA recipients are perhaps the most directly impacted.
For years, a common and lawful path looked like this: a person who was in the U.S. without status — very often a DACA recipient married to a U.S. citizen — would get advance parole, travel abroad briefly, and be paroled back in at the airport. That parole gave them a "lawful entry," which is one of the things needed to apply for a green card from inside the country under Section 245(a) adjustment of status. It let people fix their status without leaving the country for a risky consular trip abroad.
Delcarmen-Lara changes the calculation for that route going forward. The departure that used to be harmless can now, on its own, create a problem that surfaces later in the green-card case.
TPS holders and pending I-485 applicants face similar risks.
An adjustment applicant who is otherwise using advance parole simply to preserve a pending case while traveling — and who has more than 180 days of historical unlawful presence from an earlier visa overstay — can now have that same trip used against the application. USCIS can deny the I-485 on inadmissibility grounds under § 212(a)(9)(B) if there is no approved waiver on file.
The decision also resolves an inter-agency conflict — but not in immigrants' favor.
USCIS and the Department of State had disagreed over whether Arrabally applied at consular posts abroad. Both agencies now apply the same, stricter standard — the disagreement is resolved, but against the traveler.
Critically,
not every person who travels on advance parole has accrued unlawful presence.
If you have never had a status gap or period of unauthorized presence, Delcarmen-Lara does not change your ability to travel on advance parole.
Waivers Remain Available — But With Limitations
The BIA decision does not eliminate waiver possibilities under INA § 212(a)(9)(B)(v). Adjustment of status applicants can still file Form I-601, Application to Waive Grounds of Inadmissibility, to waive the three- or ten-year bars based on a showing of extreme hardship to a lawful permanent resident or U.S. citizen spouse or parent.
The waiver requires showing extreme hardship to a U.S.-citizen or lawful-permanent-resident spouse or parent — and only a spouse or parent.
That means applicants whose only qualifying relative is a U.S.-citizen child, for example, cannot use this waiver.
If a bar would apply, applicants should discuss I-601/I-601A eligibility — including whether they have a qualifying U.S. citizen or LPR spouse or parent — before departing, not after being stopped at a U.S. port of entry.
What Should Affected Individuals Do Now?
Immigration attorneys and legal organizations are urging immediate caution:
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Hold off applying for advance parole if you are eligible but would be affected by the BIA decision.
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Before traveling, applicants — particularly those with DACA, prior periods without status, unlawful presence, previous removal proceedings, or complicated entry histories — should understand exactly how a departure could affect their immigration case. An advance parole approval may authorize travel, but after Delcarmen-Lara, determining whether that travel is legally advisable requires a much more careful review.
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Watch for implementing guidance in a USCIS Policy Manual update or a follow-on BIA decision refining how "prospective" application will be measured.
The stakes could not be higher.
The exposure here is measured in years of inadmissibility, and it depends on facts — exact dates of entry, status changes, and prior orders — that only a licensed attorney should analyze.
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This article is provided for informational purposes only and does not constitute legal advice. If you have questions about how Matter of Delcarmen-Lara may affect your immigration case, consult with a qualified immigration attorney before making any travel decisions.