Advance Parole Can Now Trigger the 10-Year Bar

On August 13, 2026, the Board of Immigration Appeals held that leaving the United States on advance parole counts as a "departure" for purposes of the ten-year unlawful presence bar. The decision, Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), overrules Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the case that immigration lawyers have relied on for more than a decade to move people from advance parole travel into a green card. The Board applied its new rule prospectively, so a trip you already completed should still be judged under the old rule. For travel going forward, the math changes, and for some people it changes a great deal.

Key takeaways

• The Board expressly applied this holding prospectively, meaning it did not even decide whether the traveler in this very case had triggered the bar.
• The people at risk are those who accrued a year or more of unlawful presence before getting DACA or another protection, then travel on advance parole. Many DACA recipients never accrued that time at all.
• Where the bar does apply, it is waivable under INA section 212(a)(9)(B)(v), but the waiver has a narrow definition of who counts as a qualifying relative.

What did the Board actually decide?

The question was one of statutory reading. Under 8 U.S.C. section 1182(a)(9)(B)(i)(II), someone who has been unlawfully present in the United States for one year or more, and who "again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible." The word doing the work is "departure."

In 2012, the Board decided in Matter of Arrabally and Yerrabelly that a temporary trip taken with advance parole was not a "departure" for this purpose. The reasoning was that such a trip is qualitatively different from other departures, because it assumes in advance that the traveler will be allowed to come back and will keep pursuing the application they filed before leaving.

The Board has now rejected that reasoning. It found that neither the statutory text nor the legislative history carves out an exception for advance parole travel. It pointed out that Congress has addressed advance parole expressly in other parts of the immigration statute, and reasoned that the omission of any similar language in the unlawful presence provision was deliberate. In the Board’s words, the term "departure" in that section "does not include an exception for aliens who leave the country temporarily under a grant of advance parole."

One precision point worth noting, because it is being reported loosely: the holding is written against section 212(a)(9)(B)(i)(II), the ten-year bar. Clause (i)(I) is not mentioned anywhere in the decision. We expect the government to try to extend the result to the three-year bar, but that extension is not automatic, because clause (i)(I) is worded differently. It applies to someone who "voluntarily departed the United States" before removal proceedings began, which is a different trigger with its own conditions. That is a fight for another day, and it has not been resolved here.

Who is actually affected by this ruling?

This is where most of the early coverage has been imprecise, and where the answer for any individual person turns on their own dates.

Triggering the ten-year bar requires a year or more of unlawful presence, which is a narrower concept than time spent without status. Two rules matter enormously here. First, unlawful presence does not begin to accrue until a person turns 18. Second, as USCIS has long confirmed, a person does not accrue unlawful presence while they hold deferred action, which includes DACA.

Put those together and the exposed group comes into focus. It is people who accrued twelve months or more of unlawful presence in the window between turning 18 and receiving DACA (or another protection that stopped the clock), and who then travel on advance parole. Someone who was approved for DACA at 16 and has renewed continuously may have no accrued unlawful presence to speak of. Someone who was 24 when DACA was granted very likely does. USCIS maintains a general overview of how the clock runs in its unlawful presence and inadmissibility resource.

Two details in that calculation catch people out. Time while an initial DACA request was still pending counts against you if you were already 18, because the clock does not stop until the grant. And any gap between one DACA period ending and the next beginning counts too. A person who thinks of themselves as continuously protected since 2013 may still have accrued months they did not know about. This is a records question, not a memory question, which is why we ask to see the actual approval notices.

One wording note, because it matters legally: DACA is not a lawful immigration status. USCIS is explicit that deferred action does not confer status. It stops the unlawful presence clock, which is a different and narrower thing.

It also reaches beyond DACA. Anyone who entered without inspection, later accrued a year of unlawful presence as an adult, and now plans to travel on an advance parole document should have this looked at before booking anything.

Why did advance parole matter so much in the first place?

To see what is at stake, it helps to understand the strategy this ruling disrupts.

To adjust status inside the United States under INA section 245(a), a person generally has to have been "inspected and admitted or paroled." Someone who crossed the border without inspection fails that test, even if they are married to a U.S. citizen. For years, the workaround for eligible people was advance parole: apply on Form I-131, get permission to travel, leave briefly, and return as a parolee. That return supplied the missing "paroled" element, and under Arrabally the trip itself did not trigger an unlawful presence bar. If you want the mechanics of that form, we cover them in our guide to Form I-131 and advance parole.

After this decision, that trip can still supply the parole. What it no longer does is come free. A person can now come back correctly paroled and therefore eligible to file, yet inadmissible under the ten-year bar because of the same trip. Eligible to apply, and inadmissible as applied, at the same time. That is the practical shift, and it is why the answer is now a waiver question rather than a travel question.

Does this apply to travel you already took?

No, and the Board was deliberate about this.

Because it was overruling a longstanding precedent, the Board ran a retroactivity analysis and concluded that the new rule applies prospectively. It went further than saying so in the abstract: it declined to decide whether the traveler in this very case, who was paroled back in on January 1, 2024, had made a "departure," precisely because the holding is prospective. Her motion to reopen was denied on separate grounds, as untimely and number-barred.

We want to flag one honest ambiguity rather than paper over it. The decision says the holding applies "prospectively." It does not spell out the precise cutoff mechanic, whether that keys to the date of travel, the date of filing, or the date of adjudication. Reporting has described it as applying to cases filed after the decision date, but that specific formulation does not appear in the decision. How USCIS and the immigration courts implement this is going to matter, and it is not settled today.

If the bar applies, what does the waiver look like?

Congress built a waiver into the same provision. Under INA section 212(a)(9)(B)(v), the unlawful presence bar can be waived, and this decision does not touch that. What surprises people is how narrow the qualifying relative rule is.

The applicant has to be the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, and the extreme hardship has to be shown to a U.S. citizen or lawful permanent resident spouse or parent. Hardship to your U.S. citizen children does not satisfy the standard on its own. That single rule decides a large number of these cases, and it catches people off guard, particularly parents who assumed their children’s hardship would carry the application.

The filing route depends on where the case sits. Someone adjusting inside the United States would generally file Form I-601 with the adjustment application. Someone consular processing may be looking at the provisional waiver on Form I-601A instead; we walk through that path in our post on I-130 approval and I-601A waiver requirements. Either way, these are hardship-driven, evidence-heavy filings, and they are discretionary.

What does this mean for Florida cases and the Eleventh Circuit?

There is a wrinkle here that matters more in Florida than almost anywhere else, and it sits in a footnote.

Florida is in the Eleventh Circuit, which was the controlling jurisdiction in this case. The Eleventh Circuit had previously applied the Arrabally definition of "departure" in Ortiz-Bouchet v. U.S. Attorney General, 714 F.3d 1353 (11th Cir. 2013). In footnote 1 of the new decision, the Board acknowledged that history and stated that it does not read Ortiz-Bouchet as preventing the Board from revisiting the definition.

Whether that is right is a genuine open question, and it is the kind of question that gets tested on a petition for review in the courts of appeals. We would expect this issue to be litigated. We are not going to tell you how it comes out, because nobody knows yet, but it is a live argument for Florida cases and it is one reason we are treating individual advice here as fact-specific rather than general.

What this ruling does not change

• Advance parole still exists. DACA recipients and adjustment applicants can still apply for it, and the categories of approved travel have not changed.
• Returning on advance parole still counts as a parole for purposes of eligibility to file for adjustment under section 245(a).
• DACA itself is untouched by this decision. For where that program stands more broadly, see our overview of DACA in 2026 and our guide to DACA renewal.
• People with no accrued unlawful presence are not affected. No unlawful presence, no bar to trigger.
• The waiver survives. The Board overruled a definition, not the statutory waiver.
• The Board did not apply the new rule to travel already completed, including the trip in the case in front of it. That is meaningful, but read the section above on what "prospectively" does and does not settle.

Frequently asked questions

I already traveled on advance parole years ago. Am I now barred?

Probably not, and the signs are good, but we are not going to tell you it is settled. The Board said the new interpretation applies going forward, and it declined to apply the rule to the traveler in the case in front of it, whose trip was already complete. What the Board did not do is affirmatively hold that completed travel is safe, and it did not define where the line falls. If you have a pending application that depends on a completed advance parole trip, that is worth having reviewed rather than assumed.

I have DACA and I have never left the country. Should I cancel my travel plans?

Not automatically, and not based on a headline. The question is whether you accrued a year or more of unlawful presence as an adult before your DACA was granted. For a lot of people who received DACA young, the answer is no, and the analysis ends there. For others it does not. This is a dates question, and it should be answered from your actual records before you make any decision about travel.

Does this mean I can no longer get a green card through marriage?

No. It means that for some people the route now includes a waiver step that it did not include before. The underlying marriage-based green card process is unchanged. What changed is the admissibility analysis for people whose eligibility to file depended on an advance parole trip.

Can the Board just overturn a rule it has followed since 2012?

The Board can revisit its own precedent, and it did so here through a published panel decision. Its interpretation is not the last word, though. Decisions like this get reviewed by the federal courts of appeals when individual cases are appealed, and the Eleventh Circuit’s prior treatment of the issue makes that especially likely for Florida cases.

How we can help

If you hold DACA, have a pending adjustment application, or are considering travel on advance parole, the useful next step is not a general answer, it is a look at your dates. We would want to see when you turned 18, when your first grant of DACA or other protection issued, whether there are gaps in your renewals, whether you have already traveled, and who your qualifying relatives are. Those facts decide whether this ruling affects you at all, and if it does, whether a waiver is realistic.

We are not going to tell you to file something immediately or to rush a decision because of a headline. The wrong filing at the wrong moment can create problems that did not exist before, and that risk is real in exactly this area. What we will do is look at the record and tell you honestly whether we think we can help.

You can start with a free pre-evaluation, where we review the facts and determine whether your case is a fit for our office. If it is, we will invite you to a paid consultation with a full case review and a written flat-fee quote. Call us at (407) 917-2087 or reach out through our contact page.

Our founding attorney Denisse Ilabaca is Board Certified in Immigration and Nationality Law by The Florida Bar, a distinction held by fewer than two percent of Florida attorneys.

This article is for general information only and is not legal advice. Immigration law changes quickly, and how a decision like this one applies depends on the specific facts and dates of an individual case. Reading this article does not create an attorney-client relationship. For advice about your situation, speak with a licensed immigration attorney.