On August 13, 2026, the Board of Immigration Appeals (BIA) upended more than a decade of settled immigration law with a single precedential decision.
The BIA overturned one of the more important interpretations of immigration law affecting adjustment of status applicants who have accrued unlawful presence, holding in Matter of Milagro Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), 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 provided protection to people who had accrued unlawful presence and traveled abroad on advance parole.
The consequences are immediate and far-reaching for hundreds of thousands of immigrants who have relied on advance parole as a safe mechanism for international travel.
What Changed — and Why It Matters
To understand the significance of this decision, it helps to know what Arrabally had protected.
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. A person who accrues one year or more of unlawful presence and then departs may trigger a ten-year bar.
For more than a decade, Matter of Arrabally and Yerrabelly held that a temporary departure pursuant to advance parole was not the kind of "departure" contemplated by this statute. The reasoning made practical sense. Advance parole is not an ordinary decision to abandon the United States. The federal government authorizes the travel in advance with the expectation that the person may return and continue pursuing an immigration benefit or other authorized purpose. The Board itself explained in Arrabally that advance-parole travel was qualitatively different from an ordinary departure because it presupposed the person's anticipated return to the United States.
In Delcarmen-Lara, the Board discarded that reasoning. Its new analysis focuses heavily on the ordinary dictionary meaning of "depart": essentially, to leave. Because Congress did not expressly write an advance-parole exception into § 212(a)(9)(B), the Board concluded that leaving pursuant to advance parole is still a "departure."
The Facts of the Case
The respondent in the case is a native and citizen of El Salvador. In a decision dated December 7, 2006, an Immigration Judge found the respondent removable.
She 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.
The Board used this case as the vehicle to revisit — and ultimately reverse — the Arrabally framework, issuing a new rule with sweeping implications that extend well beyond the individual facts of the case.
Who Is Affected?
DACA recipients will be among the most affected, since those who had accrued unlawful presence before obtaining DACA had been able to use advance parole to travel abroad without triggering § 212(a)(9)(B). But the decision will also affect adjustment of status applicants, U-visa and T-visa holders, and others who are eligible for advance parole.
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. DACA holders frequently request advance parole to take trips for educational, professional, or humanitarian reasons without losing their status.
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 you generally need 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.
Note that 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.
Prospective Application: A Critical Safeguard
One important aspect of the decision offers some relief for those who have already traveled.
An important part of the decision is that the BIA applied its new interpretation prospectively. The Board recognized that Arrabally and Yerrabelly had been longstanding precedent and that individuals may have made travel decisions in reliance on that rule. As a result, the new interpretation is intended to apply moving forward rather than automatically reclassifying past travel that occurred while the prior precedent was controlling.
This means that the decision does not apply to clients who traveled and returned on advance parole before August 13, 2026.
However, prior travel under the former precedent may be treated differently from future travel, and a successful trip in the past does not necessarily mean that traveling again after this new decision carries the same level of risk.
Practical Implications and What to Do Now
A person considering a new advance-parole departure should no longer assume Arrabally prevents that trip from constituting a departure under § 212(a)(9)(B). But even here, the answer is not automatically "do not travel." First determine whether the person has the requisite unlawful presence at all. For some people, especially certain DACA recipients, the answer may be no.
Not everyone who holds advance parole has accrued unlawful presence. The key question is whether an individual accumulated more than 180 days — or more than one year — of unlawful presence before their departure. If they did not, the bars are not triggered regardless of the new ruling.
For those who have accrued significant unlawful presence,
they may be eligible to apply for a waiver of inadmissibility. The legal requirements and procedures for applying for the waiver depend on the immigration benefit sought.
A waiver of the three- and ten-year unlawful presence bars is available for people who are the spouses, sons, or daughters of U.S. citizens or lawful permanent residents.
These waivers — filed via Form I-601 or the provisional waiver Form I-601A — require demonstrating extreme hardship to a qualifying U.S. citizen or permanent resident relative.
USCIS and the Department of State previously 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.
Looking Ahead
The Delcarmen-Lara decision is certain to face legal challenges. Immigration advocates have described it as "bad law and bad policy," and federal court litigation testing the BIA's reinterpretation of the statute is widely anticipated. In the meantime, the decision is binding on USCIS and immigration judges nationwide.
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 Matter of Delcarmen-Lara, determining whether that travel is legally advisable requires a much more careful review.
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The bottom line: If you have any history of unlawful presence and hold or are considering applying for advance parole, do not travel internationally without first consulting an experienced immigration attorney. What was once a routine trip may now carry consequences that could derail your path to permanent residence for years — or even a decade.
This article is for informational purposes only and does not constitute legal advice. Individual circumstances vary, and readers should consult with a qualified immigration attorney regarding their specific situation.