NewsFlash! BIA Holds Advance Parole Journey Can Set off Illegal-Presence Bar – Murthy Legislation Agency

The Board of Immigration Appeals (BIA) issued a precedential determination on August 13, 2026, holding {that a} departure from the United States underneath advance parole is a “departure” for functions of the three- and ten-year unlawful-presence bars. In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the BIA expressly overruled its 2012 determination in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (amended order, August 16, 2012).

What Has Changed?

Under INA §212(a)(9)(B), a overseas nationwide who accrues greater than 180 days of illegal presence after which departs could set off a three-year bar to admission. An individual who accrues one yr or extra of illegal presence after which departs could set off a ten-year bar. For greater than a decade, Matter of Arrabally and Yerrabelly supplied {that a} short-term journey overseas utilizing advance parole didn’t represent a “departure” that triggered these unlawful-presence bars.

The BIA has now adopted the alternative interpretation. The Board concluded that the statutory time period “departure” features a journey outdoors the United States made underneath advance parole, even the place the person returns after being paroled again into the nation. Thus, a person with adequate prior illegal presence could develop into inadmissible underneath INA § 212(a)(9)(B) due to journey on advance parole, and may have a waiver earlier than with the ability to acquire everlasting residence or in any other case be admitted.

Decision Applies Prospectively

Importantly, the BIA acknowledged that its new holding will apply prospectively, recognizing that it’s a vital change from longstanding Board precedent on which people could have relied. The determination doesn’t resolve all questions on how the possible rule will probably be carried out in particular person circumstances. Individuals contemplating advance parole journey after August 13, 2026, notably those that could have accrued illegal presence, ought to acquire case-specific authorized recommendation earlier than leaving the United States.

Conclusion

Advance parole stays an vital journey mechanism for a lot of candidates, together with sure adjustment candidates and DACA recipients. However, the BIA’s determination considerably adjustments the danger evaluation for people with unlawful-presence issues. Foreign nationals mustn’t assume that an authorized advance parole doc protects them from the three- or ten-year bar, and they need to fastidiously assess the immigration penalties of journey earlier than departing.

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