People often rely on Advance Parole – special permission to leave the U.S. temporarily and come back – when urgent travel is needed. Under a 2012 rule (Matter of Arrabally), leaving on approved Advance Parole did not count as a formal “departure” that triggers the inadmissibility bars for unlawful presence.
But on August 13, 2026, the Board of Immigration Appeals (BIA) reversed that policy in Matter of Delcarmen-Lara. The BIA now holds that any exit on Advance Parole is treated like any other departure. In practical terms, if you leave the U.S. on Advance Parole after Aug. 13, 2026, you can become inadmissible upon return if you accrued too much illegal presence beforehand.
What did the BIA decide about Advance Parole?
The BIA’s decision makes clear: “A departure from the United States pursuant to a grant of advance parole is a ‘departure’ … within the meaning of” the unlawful-presence ban. In other words, the plain language of the immigration law has no exception for parole travel. Under the new rule, an approved Advance Parole trip is just like any other trip outside the country.
This overrules the 2012 Arrabally/Yerrabelly case, which had allowed travelers with accumulated unlawful presence to leave and return on AP without penalty.
If you have more than one year of unlawful presence, this new rule means any AP trip will trigger the 10-year bar. If you had between 180 days and one year, the 3-year bar will apply.
Under Delcarmen-Lara, the BIA emphasized that Congress did not explicitly exempt Advance Parole in the law, and past policies treating AP differently no longer control. Importantly, the Board said this change is prospective only: travel on AP taken before Aug. 13, 2026, generally will not be retroactively punished. Still, anyone planning a trip after that date must reevaluate their risks.
Who Is most at risk under the new ruling?
Anyone with a history of unauthorized stay could be affected. In particular, immigrants who entered without inspection or who overstayed a visa and then acquired Advance Parole are now at high risk.
Many DACA recipients fall in this category. Before the ruling, DACA beneficiaries who entered illegally as children could travel on AP and come back without starting a ban. But the new decision means those trips now trigger bars if the person had accrued unlawful presence.
Similarly, Adjustment-of-Status applicants (for example, someone married to a U.S. citizen) who used AP travel to re-enter will face the same rules as others.
Even people under other programs (like U or T visas) or Temporary Protected Status (TPS) holders – who travel under “authorized travel” – are likely affected, since the BIA’s logic treats any authorized exit as a departure.
The bottom line: Simply holding an Advance Parole document no longer guarantees safety. If you have any significant illegal presence in your past, an AP trip can trigger the bars just like a normal exit.
For example, someone with 400 days of unlawful presence who left on AP after Aug. 13, 2026, will now face a 10-year ban upon return.
The very groups who relied on AP as a safe harbor – such as DACA recipients and other long-time noncitizens – must now assume that travel can carry serious consequences.
How can travel trigger a 3-year or 10-year bar?
The rules are straightforward: an immigrant who has accumulated more than 180 days of unlawful presence and then departs triggers a three-year inadmissibility bar. If the unlawful presence reaches one year or more before departing, the bar is ten years.
Under Delcarmen-Lara, a departure on Advance Parole now counts as such a departure. So, if you had 200 days of illegal status before traveling, your AP exit will bring a 3-year bar. If you had 400 days (over one year), your AP exit will trigger the 10-year bar.
These calculations can be tricky. “Unlawful presence” generally means any day spent in the U.S. without valid status (for example, after a visa expires or after an illegal entry). Time in DACA, TPS, or other lawful programs does not count against you.
There are also special rules: for instance, if someone’s illegal stay was due to severe abuse under the Violence Against Women Act (VAWA), the bar may not apply. But in most cases, any gap without legal permission adds up. Be especially careful: even a few months of past visa overstay could become a bar if you leave on AP now.
It helps to think of the timeline: identify when you entered, when (if ever) your lawful status ended, and whether you spent more than 180 days (or a year) without status before leaving. The BIA’s new rule means that every departure matters, even if it was authorized in advance. In short, the protective “cushion” that AP once provided for these bars has been removed.
What does this mean for people with pending immigration cases?
Travel plans for families and visa applicants now need extra caution. If you have a green-card application or visa petition pending, an AP departure could complicate your case.
For example, a family-based applicant who married a U.S. citizen might have had plans to travel on AP during their process. Under the new rule, that trip could now trigger a bar and force the applicant to seek a waiver.
Even returning citizens or LPRs bringing family may need to double-check travel. The key point is that an otherwise legitimate adjustment-of-status strategy – leaving on AP and coming back to finish processing – is no longer automatically safe.
For DACA recipients, this is especially disruptive. Many DACA holders had envisioned using AP for family or educational trips knowing they would not face bars. Now, they must treat those trips the same as anyone else. If a DACA recipient leaves with AP and has more than 180 days of pre-DACA presence, she could come back inadmissible and need a waiver. In other words, pending cases can be derailed by travel that was once considered routine.
Some immigrants may choose to shift strategies. For instance, instead of using AP, an applicant might opt for consular processing abroad. In that route, a visa interview is set at a U.S. embassy. Importantly, applicants can file a provisional unlawful-presence waiver (Form I-601A) before leaving, which waives the bar when they depart for the interview.
That approach has its own challenges (current travel bans and visa suspensions can slow consular work), but it avoids the surprise of an AP departure triggering a hidden bar. If you are mid-process on a family or employment case, talk to your lawyer about whether to adjust plans in light of Delcarmen-Lara.
Can you still travel on Advance Parole?
Yes, USCIS continues to grant Advance Parole for eligible applicants (such as adjustment-of-status applicants, DACA recipients, and certain other categories).
Having an Advance Parole document means you are legally authorized to return – but it does not magically protect you from the bars anymore. The BIA confirmed that “departure” includes an exit on AP, and since the statute has no carve-out, even a fully-approved AP trip can produce inadmissibility.
Before you travel, think carefully. Get your AP document and make sure it’s valid, but do a separate risk check. Review your immigration history: did you ever have any period without legal status exceeding 180 days? If yes, your trip could be risky. Examples of high-risk travel include:
- Entry without Inspection (EWI): If you originally crossed the border without inspection, you likely already have unlawful presence from the moment you entered. An AP trip will execute the 10-year ban if you were in the U.S. one year or more, which many EWI applicants are.
- Visa Overstay: If you entered lawfully on a visa but stayed past its expiry for a long time, only the days after expiry count as unlawful presence. But those days can still add up above 180 or 365.
- Pending Removal Order: If you have any removal/deportation order (even if it was closed), traveling can “activate” it. USCIS has long said that leaving on AP effectively executes a removal order. That could mean you’d return not as an applicant but as someone who waived in with AP.
If any of these apply, be extremely cautious. There are situations when travel might still be worth it (urgent medical care, death in the family, etc.), but the risks are now real. When in doubt, it’s wise to consult a qualified immigration attorney before booking anything. They can evaluate your unlawful presence and advise whether a trip will trigger a bar.
What should you do if you already traveled or are planning to travel?
If You Already Traveled: First, check the date of your trip. Trips taken on Advance Parole before Aug. 13, 2026 are protected by the old rule and should not count as departures. If your trip was after that date, then by the new rule you may have triggered a ban.
Determine how many days of unlawful presence you had before departing. If it exceeded 180 days, you may now face a 3- or 10-year bar. In that case, talk to an attorney about remedies. Depending on your situation, you may file for the available waivers (Form I-601 or I-212) to overcome the ban. Note that under current policy, the bar “clock” can keep running even after you re-enter, which might help shorten the waiting period for a waiver.
If you returned after traveling and later learned you triggered the bar, do not ignore it. A future visa or status application will catch it, and you’ll need a waiver to fix it. If you haven’t left yet but are scheduled to, reconsider. Contact a lawyer before you go. Similarly, if you plan an upcoming AP trip, treat it as potentially dangerous. You might need to delay travel or seek a waiver first.
If You Are Planning to Travel: The safest course is to prepare. Review your full immigration timeline (entries, visa status periods, authorized stays). Calculate any unlawful presence. If you find it’s above the thresholds, plan alternative routes. For example, if you have a U.S. citizen spouse or parent, you might file a provisional unlawful presence waiver (I-601A) before leaving on your immigrant visa interview trip.
That way, the ten-year ban is waived at the consulate, and you can skip risking it entirely by AP. In any event, we strongly encourage consulting an immigration attorney. They can advise whether travel is worth the risk and can guide you through waiver processes if needed. Don’t assume your AP document alone makes you safe – the new BIA ruling has shifted the ground under nearly all travel plans.
The Law Offices of Anne Z. Sedki
At The Law Offices of Anne Z. Sedki, we help immigrants navigate exactly these kinds of changes. With offices in New York and New Jersey and clients nationwide (and even worldwide), we are ready to advise you. Whether you need help understanding how the new BIA decision affects your case, calculating your unlawful presence, or pursuing a waiver, we have the experience to guide you.
Don’t wait until it’s too late – if you have traveled on Advance Parole or are thinking of it, contact us for a personalized consultation. We’ll review your history, explain the risks, and help you make the best plan for your situation.
Frequently Asked Questions
- Can I travel on Advance Parole after the new BIA ruling?
Yes, you can still be granted Advance Parole and use it to travel, but any travel after Aug. 13, 2026 may trigger the inadmissibility bars if you had unlawful presence. Trips taken before that date remain safe. After Aug. 13, do not assume AP travel is risk-free – check your status and talk to a lawyer first. - Does Advance Parole still protect me from the 10-year bar?
No. The new BIA decision means that leaving on AP is treated exactly like any other departure. If you had one year or more of unlawful presence before your trip, a 10-year bar will now attach. Advance Parole no longer provides immunity from that bar. - Can DACA recipients travel with Advance Parole?
DACA recipients can still apply for AP for qualifying reasons (education, employment, humanitarian), but travel is no longer automatically safe. Many DACA holders entered without inspection and had unlawful presence before DACA. Under the old rule their AP trips were exempt, but now those trips will trigger the bar if enough unlawful presence existed. In short, DACA or not, the bar applies the same way to AP travel now. - How does Advance Parole affect the 3-year bar?
If you accrued more than 180 days of unlawful presence before departing on AP, that departure will now trigger a 3-year ban. Under the old rule it didn’t count, but now there is no exception. So crossing the 180-day threshold and leaving on AP means you would be inadmissible for three years upon return. - How does Advance Parole affect the 10-year bar?
Similarly, if you accrued one full year of unlawful presence prior to traveling on AP, that departure will trigger the 10-year ban. Advance Parole no longer stops the 10-year ban from applying. Any AP trip taken after Aug. 13, 2026 with one year of illegal stay becomes subject to the ten-year inadmissibility period. - What happens if I already traveled using Advance Parole?
If your AP trip happened before Aug. 13, 2026, the BIA’s new rule does not apply to you. That travel is grandfathered in. If you traveled on AP after that date, then your trip counts as a departure. You should determine how many days of unlawful presence you had before leaving: if it was over 180 days, you may have triggered a ban. In that case, you may need to apply for a waiver. It’s wise to consult an attorney about your situation, because you may qualify for a Form I-601 waiver to overcome the ban. - Can an immigration waiver overcome the 10-year bar?
Yes. U.S. immigration law allows certain waivers for the 3- and 10-year bars under INA §212(a)(9)(B)(v). Typically, an I-601 waiver (or I-212 if still in the U.S.) can be granted if you show that a U.S. citizen or LPR spouse or parent would suffer extreme hardship if you are excluded. These waivers require proof of hardship and are not guaranteed, but they can remove the 3- or 10-year bar. If you believe you may need a waiver, consult an attorney early to plan ahead.
