On August 13, 2026, the Board of Immigration Appeals (BIA) issued one of the most consequential immigration decisions in years — one that fundamentally alters the legal landscape for hundreds of thousands of immigrants who rely on advance parole to travel internationally while pursuing lawful permanent residence in the United States.
In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the BIA issued a precedential decision holding that a departure from the United States under advance parole is a "departure" for purposes of the three- and ten-year unlawful-presence bars, expressly overruling its 2012 decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).
The ruling has drawn immediate and sharp criticism from the immigration bar.
AILA President Jeff Joseph stated, "This ruling flipflops on 14 years of well-settled law and policy."
He added that the decision "punishes people for following the rules and jeopardizes people who have well-established lives in the U.S., including Dreamers protected by the Deferred Action for Childhood Arrivals (DACA) program, people with Temporary Protected Status (TPS), and the immediate family of U.S. citizens with pending applications for their green cards."
What Changed — and Why It Matters
To understand the significance of Delcarmen-Lara, it helps to understand what the old rule protected.
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.
Under INA §212(a)(9)(B), a foreign national who accrues more than 180 days of unlawful presence and then departs may trigger a three-year bar to admission, while a person who accrues one year or more of unlawful presence and then departs may trigger a ten-year bar.
For over a decade, Arrabally served as a vital shield for immigrants. Under that decision, temporary travel abroad under advance parole was not treated as a statutory "departure" for the purpose of triggering unlawful presence bars. 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.
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."
The Case Behind the Decision
The respondent, Milagro Delcarmen-Lara, is a national of El Salvador who entered the United States illegally more than two decades ago.
She was placed into removal proceedings, received a final order of removal, but was not subsequently removed. In 2013, she was granted DACA.
She later departed temporarily and was paroled back into the United States on January 1, 2024, pursuant to advance parole.
The case involved this Salvadoran woman with a final order of removal who later became the beneficiary of an approved family-based petition filed by her husband. After traveling abroad and returning under a grant of advance parole, she sought to reopen her removal proceedings to pursue adjustment of status. The Board ultimately denied her motion to reopen on separate procedural grounds.
Notably, the Board didn't even decide whether her own trip counted as a "departure" under the new standard; it threw out her case on unrelated procedural grounds and used the opinion mainly to settle the broader legal question for future travelers.
Prospective Application: Prior Travel Likely Protected
A critical feature of the ruling is its prospective application.
The BIA's latest interpretation of departure in this context only applies prospectively — to future cases — and likely will not bar the adjustment of any alien who departed and returned to the United States on parole before August 13, 2026.
In fact, it didn't even apply to Delcarmen-Lara herself: Because its opinion was not retroactive, the BIA denied her motion to reopen based on the numerical bar in section 240(c)(7) of the INA.
However, practitioners are warning that the boundaries of "prospective" application remain somewhat uncertain.
The August 13, 2026 decision applies going forward, and based on the ruling as written a trip completed before that date should still fall under the older rule. The government hasn't spelled out exactly how it will draw the line.
Who Is Most Affected?
The ruling affects non-U.S. citizens with a history of unlawful presence in high-risk categories, including DACA recipients (Dreamers), Temporary Protected Status (TPS) holders, individuals with a pending green card application (I-485), and individuals with a pending asylum application (I-589).
Many DACA recipients were brought to the U.S. unlawfully as small children. Unlawful presence does not start accruing until age 18; however, DACA recipients who turned 18 before DACA was created in 2012 may have unintentionally accrued unlawful presence in the time period before they were granted DACA.
The Delcarmen-Lara decision has a major impact on DACA holders. About half a million workers in the U.S. hold DACA status, many with advanced degrees and skills.
USCIS policy since July 1, 2022, has been that TPS beneficiaries have traveled pursuant to "authorized travel" and not technically advance parole. However, it is likely that USCIS will take the position that the reasoning of Delcarmen-Lara applies equally to TPS beneficiaries traveling and "departing" pursuant to authorized travel.
It is also important to note that
people with no accrued unlawful presence are not affected. No unlawful presence, no bar to trigger.
Advance parole has not been eliminated. The travel document still exists and may still be available to eligible applicants. What changed is an important legal protection related to the consequences of leaving the United States after accruing unlawful presence.
Waivers May Still Be Available
A Form I-601 waiver may be available. An eligible applicant adjusting status inside the U.S. may be able to request a discretionary waiver under INA § 212(a)(9)(B)(v) on Form I-601. Eligibility and approval are not automatic. The waiver requires showing extreme hardship to a U.S.-citizen or lawful-permanent-resident spouse or parent — and only a spouse or parent.
Industry Reaction and What Comes Next
The reaction from the immigration community has been swift and overwhelmingly critical.
AILA warned that the new decision "puts people at risk of being barred from the United States and separated from family for years if they leave and then try to re-enter — even if they have paid for and been granted permission to travel."
FWD.us President Todd Schulte called it part of a broader pattern of chipping away at DACA "piece by piece, without ever announcing it," and urged a future administration to reverse course.
This is an evolving area of law, and further guidance from the Department of Homeland Security or federal courts may follow. Staying informed and working with legal counsel is essential. Rulings like Matter of Delcarmen-Lara demonstrate how a single BIA decision can upend years of settled practice overnight.
Practical Takeaways
For anyone currently holding advance parole or considering applying for it, the message from immigration attorneys is clear:
- Do not travel on advance parole without legal counsel if you have any history of unlawful presence in the United States.
- Prior travel completed before August 13, 2026 should still fall under the old Arrabally framework, but have an attorney confirm your specific situation.
- Explore waiver options. If you may be subject to the bar, the I-601 waiver remains a potential avenue, though it requires proving extreme hardship to a qualifying relative.
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This article is for informational purposes only and does not constitute legal advice. If you are affected by this decision, contact an experienced immigration attorney to evaluate your specific circumstances.