If You Have a Pending Green Card and Are Thinking About Traveling, Read This First

The BIA Just Changed the Rules on Advance Parole Travel in Matter of Delcarmen-Lara

If you have a pending adjustment of status application, hold a DACA grant, are a TPS beneficiary, or have any history of unlawful presence in the United States and are considering international travel on advance parole, stop and speak with an immigration attorney before you book anything. A decision issued by the Board of Immigration Appeals on August 13, 2026 changed a foundational rule that many people have relied on for over a decade, and the consequences of traveling under the new framework without proper legal review can be severe and permanent.

The Rule That Stood for Fourteen Years

To understand why this ruling matters, you need to understand the legal framework it changed.

Under INA Section 212(a)(9)(B), a foreign national who accrues more than 180 days of unlawful presence in the United States and then departs triggers a three-year bar to admission. A person who accrues one year or more of unlawful presence and then departs triggers a ten-year bar. These bars are among the most serious consequences in immigration law because they prevent a person from returning to the United States for years, even if they have a U.S. citizen spouse, an approved petition, and a clear path to a green card.

In 2012, the BIA issued Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771, which created a critical protection for people in exactly this situation. The Board held that a person who temporarily left the United States pursuant to a grant of advance parole had not made a “departure” within the meaning of that unlawful presence bar provision. In other words, traveling abroad on advance parole did not trigger the three-year or ten-year bar, even if the traveler had a long history of unlawful presence before receiving advance parole.

For fourteen years, this was settled law. It made a profound difference in the lives of thousands of people. DACA recipients married to U.S. citizens could travel to a sick parent’s bedside abroad. Adjustment of status applicants could attend family events they had been missing for years. People who had built their lives in the United States could briefly leave and return without sacrificing everything they had worked toward. Attorneys could advise clients with confidence. The law was clear.

What the BIA Decided on August 13, 2026

In Matter of Milagro Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), a three-judge panel of the BIA expressly overruled Arrabally and Yerrabelly. The Board held that a departure from the United States pursuant to a grant of advance parole is a “departure” within the meaning of INA Section 212(a)(9)(B)(i)(II), the provision that triggers the unlawful presence bars.

The Board’s reasoning was straightforward, almost bluntly so. It looked at the ordinary meaning of the word “depart,” defined in the dictionary as “to go away” or “to leave,” and found nothing in the statute that carves out a trip taken under advance parole. If you physically leave the United States, the Board held, you have departed, regardless of what document you held when you boarded the plane.

The respondent in the case, Ms. Delcarmen-Lara, was a DACA recipient who had been granted DACA in 2013 and had later married a U.S. citizen. She traveled abroad on advance parole in January 2024 and returned without incident. She then sought to pursue adjustment of status based on her husband’s approved I-130 petition. The Board declined to apply its new rule to her completed trip, stating that the new interpretation would apply prospectively only. But the rule announced in her case will apply to every advance parole trip taken on or after August 13, 2026.

Who Is Affected and How

This decision does not affect everyone with an advance parole document. Its impact depends entirely on whether you have accrued unlawful presence and how much. Here is how to think through your situation.

• You have no history of unlawful presence. This decision does not affect you. The unlawful presence bars only apply if you have accrued unlawful presence before departing. If you entered lawfully and maintained status throughout, traveling on advance parole carries the same risk profile it always has..
• You accrued more than 180 days but less than one year of unlawful presence. Traveling on advance parole now triggers the three-year bar to admission. Under the old Arrabally rule, this trip would have been protected. Under Delcarmen-Lara, it is not.
• You accrued one year or more of unlawful presence. This is the highest-risk scenario. Traveling on advance parole now triggers the ten-year bar. A person in this situation who leaves the United States on advance parole after August 13, 2026 may be found inadmissible upon return and could be barred from returning for ten years, even with a valid advance parole document, an approved petition, and a pending green card application.
• You are a DACA recipient with unlawful presence before your DACA grant. This is one of the most commonly affected populations. Many DACA recipients accrued significant unlawful presence before receiving DACA. If that unlawful presence exceeded 180 days or one year, traveling internationally on advance parole is now a substantially different legal proposition than it was before August 13, 2026.
• You are a TPS beneficiary or have a pending I-485. The same analysis applies. Any advance parole travel following a period of unlawful presence must be evaluated carefully in light of this decision before you travel.

What the Decision Does Not Change

There has been significant confusion in public coverage of this ruling, and it is worth being precise about what did and did not change.

• Advance parole still exists. The Board did not eliminate advance parole. The travel document remains available to eligible applicants. What changed is what happens legally when you use it to depart if you have a history of unlawful presence.
• Trips completed before August 13, 2026 are not retroactively affected. The Board expressly made this ruling prospective. If you traveled on advance parole before the date of this decision, your trip is analyzed under the old Arrabally rule, not the new one. A completed trip is not an immediate emergency, though any pending case involving such travel should still be reviewed by counsel in light of how USCIS may now apply the law.
• The waiver process still exists. The Board overruled a definition, not the statutory waiver available under INA Section 212(a)(9)(B)(v). An I-601A provisional unlawful presence waiver, if approved before departure, addresses the unlawful presence bar. However, obtaining a waiver is itself a complex process with its own risks and limitations, and it does not eliminate all inadmissibility grounds.
• DACA itself is not affected. This decision does not alter DACA status, DACA renewal eligibility, or the protections DACA provides against removal. It affects only the consequences of international travel for DACA recipients who have unlawful presence in their history.
• Returning travelers are not automatically turned away. Having a valid advance parole document still allows you to seek admission at the port of entry. However, CBP retains full discretion to deny admission, and a finding of inadmissibility based on the unlawful presence bar can now be applied to a traveler who would not have faced that risk under the prior rule.

The Human Dimension of This Decision

It is easy to lose sight of what these abstract legal categories mean for real people. Consider a few of the situations this ruling changes.

A DACA recipient who has lived in the United States since childhood, married a U.S. citizen, and has an approved I-130 petition has been patiently pursuing a green card. She has not seen her mother abroad in years. Her mother is ill. Under the rule that existed one week ago, she could have traveled to see her on advance parole and returned to continue her case. Under the rule that now exists, that trip may trigger a ten-year bar that would separate her from her U.S. citizen spouse and her entire American life for a decade.

Or consider a TPS beneficiary who accrued unlawful presence before receiving TPS, has a pending adjustment case, and holds advance parole. A family emergency arises abroad. He has a valid travel document. Under the prior rule, he could have gone. Under the new rule, the trip that his advance parole document authorizes could make him inadmissible when he tries to come back.

These are not hypotheticals. These are the situations that people in our community face. And they illustrate why this ruling, which may sound technical, carries enormous consequences for real families.

What You Should Do Right Now

If any part of this article describes your situation, the most important thing you can do is have your immigration history reviewed by a qualified immigration attorney before you travel. Here is what that review should cover:

• Calculate your unlawful presence accurately. Unlawful presence is not always the same as the period you spent without a visa. Protected periods, such as time spent under DACA, TPS, or with a pending application, may not count. The calculation is often more favorable than people expect, and sometimes more adverse. You need a precise accounting before you can assess your risk.
• Do not assume your advance parole document makes travel safe. Holding a valid advance parole document does not protect you from the unlawful presence bar under the new rule. The document authorizes you to seek admission. It does not eliminate inadmissibility grounds that may arise from the departure itself.
• Explore whether an I-601A waiver is appropriate. For some individuals, filing and obtaining approval of a provisional unlawful presence waiver before departure may address the bar. This process has its own requirements, timeline, and risks, including the risk that approval is not guaranteed, and it should only be pursued with experienced counsel.
• If you have already traveled on advance parole before August 13, 2026, have that trip reviewed. The retroactivity protection announced in the decision is meaningful, but how USCIS applies it in individual cases remains to be seen. A completed trip is not an emergency, but it should be disclosed and evaluated as part of any pending case.
• Do not rely on online forums or general internet information to assess your specific risk. The interaction between unlawful presence, DACA, TPS, advance parole, and adjustment of status eligibility is genuinely complex. Your situation is individual. A general article, including this one, is a starting point, not a substitute for a legal consultation.

Whether a stay is granted depends on whether the First Circuit finds that the government has a likelihood of success on the merits, that it would suffer irreparable harm without a stay, and that the balance of equities and public interest favor staying the ruling. Given the strength of the constitutional analysis, rooted in a Supreme Court precedent decided just months ago, a stay is not a foregone conclusion. But it cannot be ruled out.

What Comes Next

This is a BIA decision, which means it is binding on immigration judges and USCIS officers nationwide but is subject to review by the federal circuit courts of appeals. It is possible that a federal court will reach a different conclusion and that the Arrabally rule, or something like it, could be restored through litigation. Several circuit courts, including the Third Circuit in Cheruku v. Attorney General, had previously declined to adopt Arrabally’s reasoning in certain contexts, which the BIA cited as support for its reversal. Others may view the new rule differently.

What is certain is that until a federal court modifies or overturns this decision, Matter of Delcarmen-Lara is the law. Anyone planning international travel on advance parole must be counseled under the new framework, not the old one.

We will continue to monitor developments in this area and will update clients as the law evolves.

Do Not Travel on Advance Parole Without Consulting an Attorney First

Parandian Law represents individuals and families in adjustment of status applications, DACA matters, TPS cases, and all areas of U.S. immigration law. If you have questions about how Matter of Delcarmen-Lara affects your pending case or your ability to travel, contact our office before you make any travel plans.

If you have questions about how these developments affect your specific situation, contact our White Plains office at (914) 793-2626 or click the link below for a consultation.