IMMIGRATION UPDATE: How the Board of Immigration Appeal’s Recent Decision Impacts Unlawful Presence Bars when Traveling using Advance Parole

On August 13, 2026, the Board of Immigration Appeals (BIA) issued a major decision, Matter of Milagro Delcarmen-Lara (29 I&N Dec. 830), that fundamentally changes how the U.S. government treats travel on Advance Parole. We understand that sudden shifts in immigration policy can be incredibly stressful and confusing, especially for those who rely on Advance Parole to visit loved ones.

To help you navigate this change, we have broken down what the decision means, the historical context, and who is most likely to be impacted.

The Policy Shift: What Changed on August 13, 2026?

The core issue is how the government defines a "departure."

The Previous Standard (2012–2026)

In 2012, a BIA case called Matter of Arrabally and Yerrabelly established that traveling abroad using an approved Advance Parole document did not count as a "departure" for the purposes of triggering the unlawful presence bars. For over a decade, this allowed individuals who had previously accrued unlawful presence to travel abroad on Advance Parole and return to the U.S. safely without triggering a three- or ten-year ban.

The New Standard (Effective August 13, 2026)

In Matter of Milagro Delcarmen-Lara, the BIA explicitly overruled Arrabally. The BIA has now ruled that traveling on Advance Parole does constitute a "departure" under the law.

This means that if a foreign national has accrued more than 180 days of unlawful presence at any point in their past, leaving the United States on Advance Parole will now trigger the 3- or 10-year bar, potentially blocking their ability to re-enter the country or adjust their status.

Important Note on Timing: The BIA stated that this decision is not retroactive. It applies only prospectively (to departures occurring on or after the date of the decision).

What Are the Unlawful Presence Bars?

To understand the impact of this decision, it is helpful to first understand the three- and ten-year bars outlined in the Immigration and Nationality Act [INA 212(a)(9)(B)(i)].

Under U.S. immigration law, individuals who remain in the United States without legal authorization accrue "unlawful presence." If a foreign national accrues a certain amount of unlawful presence and then departs the United States, they are temporarily barred from returning:

• The 3-Year Bar: Triggered by accruing more than 180 days, but less than one year, of unlawful presence prior to departure.
• The 10-Year Bar: Triggered by accruing one year (365 days) or more of unlawful presence prior to departure.

While waivers for these bars exist, they are only available in limited circumstances and require demonstrating extreme hardship to a qualifying U.S. citizen or lawful permanent resident relative.

Who is Impacted by This Decision?

This ruling represents a massive shift in how Advance Parole functions and will significantly affect foreign nationals who have accrued over 180 days of unlawful presence.

The groups most likely to be impacted include:

• Family-Based Adjustment of Status Applicants: This includes spouses of U.S. citizens who may have overstayed their original admission period by more than 180 days before their adjustment application (Form I-485) was filed.
• DACA Recipients: Individuals holding Deferred Action for Childhood Arrivals who accrued unlawful presence before receiving DACA (often between their 18th birthday and the approval of their DACA status) and who wish to travel on Advance Parole.
• Asylum Seekers: Applicants with pending asylum claims who accrued unlawful presence prior to filing for asylum and who are eligible for or currently hold Advance Parole.
• TPS Beneficiaries: The BIA’s reasoning is highly likely to extend to Temporary Protected Status beneficiaries traveling on I-512T TPS Travel Authorization if they have a history of unlawful presence.

Understanding the Impact

Because of this ruling, holding an approved Advance Parole document does not guarantee safe travel for those with a history of unlawful presence. If you have accrued 180 days or more of unlawful presence, traveling abroad, even with an approved Advance Parole document, carries the severe risk of being barred from returning to the United States for up to a decade.

Before making any travel plans or leaving the country, it is critical that you:

1. Review your immigration history: Do not assume your past presence was lawful. Accrual of unlawful presence can be highly technical.
2. Consult with legal counsel: Speak to a licensed immigration attorney who can audit your timeline, calculate any potential unlawful presence, and advise you on the specific risks of traveling under the new Milagro Delcarmen-Lara standard.

SimpleCitizen, Inc. is not a law firm or a lawyer referral service. The information provided is for general informational purposes only and is not legal advice. For legal advice about your specific situation, please consult a licensed immigration attorney.

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