A major change in immigration law has made travel abroad on advance parole significantly riskier for certain noncitizens and could result in denials of green card applications. In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the Board of Immigration Appeals held that leaving the United States with advance parole constitutes a “departure” for purposes of the unlawful-presence ground of inadmissibility under INA § 212(a)(9)(B). As a result, a person who has accrued sufficient unlawful presence may trigger a three- or ten-year bar to admission at the moment of departure, and this is even though USCIS authorized the travel in advance.
The decision does not apply to individuals with Advance Parole who departed the U.S. before August 13, 2026.
What Changed?
The BIA’s decision overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which had treated travel under a grant of advance parole as not being a “departure” that triggered the unlawful-presence bars. Under the new rule, an advance-parole departure on or after August 13, 2026, can activate the three and ten-year unlawful presence bars. The BIA applied its holding prospectively, so individuals who completed advance-parole travel before that date should remain protected under the former rule.
Although Delcarmen-Lara specifically addressed the ten-year bar, USCIS has indicated that it will apply the decision to the three-year bar as well. Accordingly, holders of advance parole considering travel abroad should determine whether they accrued unlawful presence after turning 18 and before receiving any status or protection that stopped further accrual.
How the Three- and Ten-Year Bars Work
Advance parole is permission to seek parole into the United States after temporary travel; it is not a guarantee of admission, and it does not erase previously accrued unlawful presence. Under the new rule, the act of leaving may trigger inadmissibility and bar entry into the U.S. based on the three and ten-year bars to admission.
- Three-year bar—INA § 212(a)(9)(B)(i)(I): This bar generally applies when a noncitizen accrued more than 180 days but less than one year of continuous unlawful presence on or after April 1, 1997, and then voluntarily departed the United States before removal proceedings began. The three-year period starts upon departure.
- Ten-year bar—INA § 212(a)(9)(B)(i)(II): This bar generally applies when a noncitizen accrued one year or more of continuous unlawful presence and then departed or was removed. It can apply whether the departure occurred before, during, or after removal proceedings. The ten-year period starts upon departure or removal.
Even if U.S. Customs and Border Protection permits the traveler to return as a parolee, the person may remain inadmissible and unable to complete adjustment of status without an available and approved waiver.
The three and ten-year bars apply to a request for admission to the United States.
Under INA § 101(a)(13)(A), “admission” and “admitted” generally mean the lawful entry of a noncitizen into the United States after inspection and authorization by an immigration officer. Admission includes entry as an immigrant with lawful permanent resident status – commonly known as obtaining a green card – as well as admission in a qualifying nonimmigrant classification.
By contrast, a person returning with advance parole is ordinarily paroled, not admitted; parole permits physical entry but is not an admission and does not itself confer lawful permanent resident status. Accordingly, even if the traveler is permitted to return as a parolee, the three- or ten-year bar may remain relevant when the person later seeks admission as an immigrant or asks USCIS to approve adjustment of status to lawful permanent residence.
What is Unlawful Presence?
Unlawful presence is the period during which a noncitizen remains in the United States after an authorized stay expires or is present without having been admitted or paroled, unless a statutory exception or other recognized protection applies. It is distinct from a violation of immigration status: a person may be out of status without accruing unlawful presence, such as during certain periods in which a timely filed application is pending. Unlawful presence generally does not accrue before age 18, and specific exceptions may apply to certain asylum applicants, beneficiaries of family-unity protections, battered spouses and children, and victims of severe forms of trafficking. Because the calculation is highly fact-specific—and prior periods can determine whether departure triggers the three- or ten-year bar under INA § 212(a)(9)(B)—travelers should have their complete immigration history reviewed by an immigration attorney before leaving the United States on advance parole.
Waiver of the Unlawful Presence Bar
INA § 212(a)(9)(B)(v) provides for a discretionary waiver of the three- and ten-year unlawful-presence bars for an applicant who establishes that refusing admission would cause extreme hardship to the applicant’s U.S.-citizen or lawful-permanent-resident spouse or parent. A U.S.-citizen or lawful-permanent-resident child is not independently a qualifying relative for this waiver, although hardship to a child or another person may be considered to the extent it affects a qualifying spouse or parent.
The applicant bears the burden of proving eligibility by a preponderance of the evidence and should document the totality of the anticipated hardship, which may include medical, psychological, financial, educational, family-unity, caregiving, safety, and country-condition factors arising from either separation or relocation. Establishing extreme hardship does not guarantee approval: USCIS must also determine, as a matter of discretion, that the favorable factors outweigh the adverse factors.
Who Faces the Greatest Risk?
TPS beneficiaries. A person who accrued more than 180 days of unlawful presence before receiving Temporary Protected Status, or during a gap in TPS coverage, should carefully evaluate travel using TPS Travel Authorization, including Form I-512T. The distinct statutory and regulatory framework for TPS travel may require further agency clarification, but the potential unlawful-presence consequences are substantial.
DACA recipients. DACA generally stops additional unlawful presence from accruing while it remains valid, but it does not erase unlawful presence accumulated before the initial grant or during renewal gaps. A recipient who accrued more than 180 days of unlawful presence after turning 18 may trigger a three- or ten-year bar by traveling on advance parole.