A recent decision by the Board of Immigration Appeals changes how advance parole travel is treated for purposes of the unlawful presence inadmissibility bars, and may affect employers and foreign national employees with pending adjustment of status applications who are considering international travel.
BIA Overrules Arrabally on Advance Parole Departures
On August 13, 2026, the Board of Immigration Appeals issued a decision in Matter of Delcarmen-Lara holding that a departure from the United States pursuant to a grant of advance parole is a “departure” for purposes of the unlawful presence bars. The decision overrules Matter of Arrabally and Yerrabelly, a 2012 decision that had held that a departure on advance parole was not a “departure” for these purposes, marking a reversal of years of precedent.
Under the prior rule, an individual who had accrued unlawful presence could travel on advance parole and return to the United States without that trip triggering the three- or ten-year bar. Under the new rule, that no longer applies. The individual may still be paroled back into the United States, but generally cannot adjust status until the bar has run or is waived.
Effect Varies by Immigration Status
Individuals in duration of status (D/S), such as many F-1 students and J-1/J-2 exchange visitors, generally do not accrue unlawful presence in the same way as those admitted for a fixed period, though this is changing as new rules replacing D/S with a fixed expiry date for F-1 and J-1 visa holders take effect on September 15, 2026.
Practical Effect
Employers and foreign national employees with pending adjustment of status applications who have any period of I-94 overstay or finding of a status violation should review advance parole travel plans with immigration counsel before departing the United States.
This decision is recent and may be subject to further appeal. We will continue to monitor developments.
Disclaimer: This information is not intended as legal advice in any specific case. The facts of a specific case may render the information inapplicable.
Claire Pratt © Jewell Stewart Pratt Beckerson & Carr PC 2026
