BIA Overrules Arrabally: Advance Parole Travel Can Now Trigger the 3- and 10-Year Unlawful Presence Bar

On August 13, 2026, the Board of Immigration Appeals (BIA) — the top administrative appellate body for immigration law, housed in the Department of Justice's Executive Office for Immigration Review (EOIR) — issued a precedential decision in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026). The Board held that leaving the United States under a grant of advance parole can itself be a "departure" for purposes of the unlawful-presence inadmissibility bars at INA § 212(a)(9)(B). That single holding overturns 14 years of settled practice under Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which every green card applicant who has ever used a combo EAD/advance-parole card to travel has relied on.

What we know from the decision

• Case: Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026)
• Issuing body: Board of Immigration Appeals (BIA), Executive Office for Immigration Review (EOIR), U.S. Department of Justice
• Decided: August 13, 2026
• Status: Precedential — binding on immigration judges and DHS adjudicators nationwide unless or until overturned by a federal circuit court or the Attorney General
• Statute at issue: INA § 212(a)(9)(B)(i) — the 3-year bar (180+ days of unlawful presence before departure) and the 10-year bar (1+ year of unlawful presence before departure)
• Precedent overruled: Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which held that a trip abroad on advance parole was not a "departure" that could trigger these bars
• Application: Prospective only, by the Board's own statement — addressed below

A departure from the United States pursuant to a grant of advance parole can constitute a "departure" for purposes of the unlawful-presence ground of inadmissibility at INA § 212(a)(9)(B)(i)(II) — overruling Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).Holding of Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), as summarized by Fragomen and Murthy Law Firm

What Arrabally used to protect

Since 2012, Arrabally had been the load-bearing precedent behind a common green card strategy: an applicant with a pending Form I-485 adjustment-of-status application, who had accrued unlawful presence at some point before filing, could travel abroad on advance parole (Form I-131) and return without that trip itself counting as a "departure" that would trigger the 3-year or 10-year unlawful-presence bar. The bar could still exist on paper, but Arrabally meant it stayed dormant unless the person left some other way — for example, through voluntary departure or removal. Delcarmen-Lara removes that shield: a departure under advance parole is now a departure, full stop, for purposes of § 212(a)(9)(B).

Who this actually reaches

The decision does not touch everyone with an advance parole document — it only bites for people who had already accrued qualifying unlawful presence (more than 180 days, or a year or more) at some point before the trip. If you have never accrued unlawful presence, this ruling changes nothing about your ability to travel on advance parole. If you have accrued qualifying unlawful presence and you travel on AP on or after August 13, 2026, you may return to find yourself inadmissible and in need of a waiver before you can complete adjustment of status.

• Family- and employment-based I-485 applicants who fell out of status at some point (e.g., a lapse between visa statuses, an expired extension, unauthorized employment) before eventually filing to adjust, and who plan to travel on their AP/combo card.
• DACA recipients who accrued unlawful presence before DACA and who travel on DACA-based advance parole — commentary on the decision flags this as one of the more consequential fact patterns.
• Anyone relying on advance parole as their only lawful basis to re-enter — commonly because they no longer hold valid H-1B, L-1, F-1, or other nonimmigrant status — as opposed to travelers who maintain an independent, valid nonimmigrant visa and use that to re-enter instead of the AP document.

Why this matters specifically for OPT, STEM OPT, and H-1B workers on the green card track

Most H-1B and L-1 workers with a pending I-485 travel on their H-1B or L-1 visa stamp rather than on advance parole, and immigration counsel has long favored that route over AP precisely to sidestep parole-related complications. This ruling sharpens the stakes for anyone who cannot do that — most notably F-1/OPT and STEM OPT workers who experienced any gap in status before their green card process began: a missed OPT unemployment-clock deadline, a late H-1B change-of-status filing that left a period of unauthorized presence, or an F-1 reinstatement that did not fully cover an earlier lapse. If that history exists and the only valid basis to re-enter today is the advance parole document, a trip abroad on or after August 13, 2026 can now trigger a bar that Arrabally would previously have kept dormant.

The prospective-only carve-out

The Board was explicit that Delcarmen-Lara applies going forward, not retroactively, because it marks a sharp break from 14 years of relied-upon precedent. 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 — which makes the date of travel, not the date of filing the AP application, the operative line.

The waiver angle, and its limits

A waiver is not automatic and is not available to everyone. An applicant found inadmissible under the 3- or 10-year bar generally needs a discretionary waiver under INA § 212(a)(9)(B)(v) — filed as Form I-601 (or, in the consular-processing context, the provisional Form I-601A) — which requires showing extreme hardship to a qualifying U.S. citizen or lawful-permanent-resident spouse or parent specifically. Extreme hardship to the applicant themselves, or to a U.S. citizen child, does not qualify on its own. An approved I-601A addresses the unlawful-presence bar; it does not clear every other possible ground of inadmissibility, so it is not a blanket fix.

What to do before you travel on advance parole

• Do not treat a previously approved, still-valid advance parole document as automatically safe to use — the risk turns on your unlawful-presence history, not on whether USCIS already issued the AP document.
• Before booking travel, have counsel review whether you accrued more than 180 days, or a year or more, of unlawful presence at any point before your planned departure date.
• If you hold valid H-1B, L-1, or another independent nonimmigrant status, ask whether re-entering on that visa instead of the AP document avoids the issue entirely for this trip.
• If a bar would apply, discuss I-601/I-601A eligibility — including whether you have a qualifying U.S. citizen or LPR spouse or parent — before you depart, not after you are stopped at a U.S. port of entry.

Bottom line

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. If you have — including a status gap that predates your current OPT, STEM OPT, or H-1B-to-green-card process — a trip abroad on advance parole on or after August 13, 2026 can now trigger the same 3- or 10-year bar that used to stay dormant under Arrabally. Get counsel to review your specific unlawful-presence history before you travel, not after.