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Do not leave USA even with advanced parole approved
Source: Matter of Milagro DELCARMEN-LARA, 29 I&N Dec. 830 (BIA 2026)
Effective August 13, 2026, BIA ruled that a person triggers unlawful presence bar after leaving the United States even with an approved advance parole (travel document). Attorneys have often advised people that AP is an opportunity for a person to re-enter legally; however, it is not a guarantee and that leaving with AP approved does not trigger unlawful presence bar. That advice no longer applies starting today August 13, 2026.
Why is this a problem for some people:
Advance parole was often used as a legal option to show proof of legal entry. This entry would be used to be eligible for adjustment of status.
The BIA ruled that traveling abroad on advance parole is a “departure” under INA § 212(a)(9)(B)(i)(II). This overrules Matter of Arrabally and Yerrabelly (2012), which had protected advance parole travelers from the unlawful presence bars for 14 years.
What this means practically
Anyone who has accrued more than 180 days of unlawful presence and then travels on advance parole now risks triggering the 3-year bar (180 days to 1 year of unlawful presence) or 10-year bar (1+ year of unlawful presence) upon departure. Advance parole is no longer a safe harbor.
Who's most affected
- DACA recipients who used advance parole to create a lawful entry for adjustment of status
- Pending I-485 applicants with prior unlawful presence
- TPS holders and other humanitarian beneficiaries who travel on AP
The reasoning
The BIA panel (Gorman, Montante, Gallow) went back to the plain dictionary meaning of “departure” and found that leaving the country is leaving the country, regardless of whether you had advance parole authorization. They concluded Arrabally had been wrongly decided.
Bottom line
Do not travel on advance parole if you have any unlawful presence history.
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