On August 13, 2026, the Board of Immigration Appeals upended more than a decade of immigration law relied upon by hundreds of thousands of noncitizens and their families.
In its precedential decision in Matter of Milagro Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the Board held that leaving the United States pursuant to a grant of advance parole is a "departure" for purposes of the 10-year unlawful-presence bar under INA § 212(a)(9)(B)(i)(II), expressly overruling Matter of Arrabally and Yerrabelly, a 2012 decision that had provided critical protection to certain people traveling with advance parole.
The American Immigration Lawyers Association (AILA) swiftly condemned the decision.
AILA President Jeff Joseph stated that "this ruling flipflops on 14 years of well-settled law and policy," adding that it "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 magnitude of this shift, some background is essential. Under the Immigration and Nationality Act,
accruing more than 180 days but less than one year of unlawful presence, followed by a departure, can trigger a 3-year inadmissibility bar; one year or more of unlawful presence, followed by departure, can trigger a 10-year bar.
These are among the most consequential penalties in immigration law, effectively barring affected individuals from reentering 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 INA.
Under that decision, temporary travel abroad under advance parole was not treated as a statutory "departure," which 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.
A DACA or TPS recipient who may have entered the United States without inspection could depart under advance parole, and the return under parole would render them eligible for adjustment of status, since under INA § 245(a) an eligible applicant must be "inspected and admitted or paroled" into the U.S.
This pathway was, for many, the only viable route to a green card.
The BIA has now dismantled that framework.
The Board reasoned in plain language — looking 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 Board acknowledged the statutory scheme is designed to "compound the adverse consequences of immigration violations" and cited authority recognizing that treating advance-parole travel as a triggering departure may produce "a harsh result," but nevertheless concluded the statutory text did not permit an exception.
The Case Behind the Ruling
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 in the early 2000s
and in 2013 was granted Deferred Action for Childhood Arrivals (DACA).
She later married a U.S. citizen who filed an immigrant petition on her behalf, and returned to the country on advance parole in January 2024 after a trip abroad. When she tried to use that approved petition to adjust her status, the Board seized the moment to revisit — and reverse — the 2012 rule that had shielded travelers like her.
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 ruling will also affect adjustment-of-status applicants, U-visa and T-visa holders,
and others who have accumulated periods of unauthorized presence.
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.
Importantly,
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.
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.
USCIS and the Department of State had 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.
Prospective Application: A Critical Safeguard
In a significant concession,
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 — powerful language for people who completed advance-parole travel before August 13, 2026.
Trips completed on advance parole before August 13, 2026 are still evaluated under the old Arrabally rule and do not retroactively become "departures" that trigger a bar. It is departures on or after August 13, 2026, that fall under the new framework — making the date of travel, not the date of filing the advance parole application, the operative line.
Practical Implications and Available Relief
For those who now face inadmissibility, the options are limited but not nonexistent.
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.
A U.S.-citizen child does not count as a qualifying relative for this waiver — a fact that often shocks families.
AILA warned that the 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."
What To Do Now
Immigration practitioners are urging immediate caution.
Anyone potentially affected 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.
Rulings like Matter of Delcarmen-Lara demonstrate how a single BIA decision can upend years of settled practice overnight. For individuals in the middle of an adjustment-of-status case, a routine trip abroad that once seemed safe could now carry the risk of years-long inadmissibility.
The decision is likely to face federal court challenges, but until a court acts, it represents binding precedent for all immigration judges and USCIS adjudicators nationwide. Anyone with advance parole who has accrued any period of unlawful presence should consult with an experienced immigration attorney before making any travel plans.
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This article is for informational purposes only and does not constitute legal advice. If you have questions about how Matter of Delcarmen-Lara affects your case, contact an experienced immigration attorney for an individualized assessment.