On August 13, 2026, the Board of Immigration Appeals (BIA) – the highest administrative body for interpreting and applying immigration laws – issued a precedential decision holding that traveling internationally with an advance parole (AP) travel document may trigger inadmissibility bars for foreign nationals who have overstayed their legal status in the U.S. The BIA decision in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026) overrules Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), a longstanding case holding that travel with an AP did not trigger the inadmissibility bars. Under Matter of Delcarmen-Lara, travel outside the U.S. on an AP constitutes a "departure" under INA § 212(a)(9)(B)(i)(II), which means that foreign nationals who have accrued one year or more of unlawful presence in the U.S. who travel on AP going forward may be subject to the ten-year inadmissibility bar. While the decision specifically addressed the ten-year bar under § 212(a)(9)(B)(i)(II), the reasoning logically extends to the three-year bar under § 212(a)(9)(B)(i)(I) for those with 180 days to one year of unlawful presence in the U.S.

Background

Under INA § 212(a)(9)(B)(i)(I), if a foreign national has been unlawfully present in the U.S. for more than 180 days but less than one year and then departs the U.S., they may be barred from returning to the U.S. for three years. Under INA § 212(a)(9)(B)(i)(II), if a foreign national has been unlawfully present for one year or more and then departs, they may be barred from returning to the U.S. for ten years. These are known as the three-year and ten-year inadmissibility bars.

An advance parole is a travel document issued at the discretion of the U.S. Citizenship and Immigration Services (USCIS) that permits foreign nationals in certain immigration proceedings in the U.S. to travel outside the U.S. and be admitted back.

Since 2012, the BIA’s decision in Matter of Arrabally and Yerrabelly held that traveling on AP did not constitute a "departure" triggering the three- and ten-year unlawful presence bars. This decision allowed foreign nationals with a valid AP who had accrued unlawful presence in the U.S. to travel abroad and return without becoming inadmissible.

What Changed

On August 13, 2026, in Matter of Delcarmen-Lara, the BIA overruled Arrabally, holding that the plain meaning of "departure" includes travel on AP and that Congress did not exempt advance parolees from inadmissibility under this provision. The BIA noted that both the Department of Homeland Security (DHS) and the former Immigration and Naturalization Service (INS) had consistently taken this position before Arrabally was decided.

Importantly, the present BIA decision concerns departures on AP specifically. Travel on a valid nonimmigrant visa (such as H-1B, L-1, H-4, etc.) involves a different analysis and is not addressed by this ruling.

Prospective Application

The BIA determined that its new holding applies prospectively only. This means the ruling should not affect AP departures that occurred before August 13, 2026. However, the precise boundaries of "prospective" remain undefined. This decision will likely be subject to further litigation and agency guidance.

Who Is Affected

This decision impacts foreign nationals in the U.S. who have accrued 180 days or more of unlawful presence and may need to travel outside the U.S. on an AP, for example DACA (“Deferred Action for Childhood Arrivals”) recipients, TPS (“Temporary Protected Status”) holders, or certain family-based and employment-based adjustment applicants who have been in the U.S. without lawful underlying status.

Going forward, AP travel where an individual has unlawful presence issues may trigger the three-year or ten-year inadmissibility bar depending on the length of unlawful presence accrued.

Consult With Your Pryor Cashman Attorney

For any employers with employees using AP for international travel, we recommend you consult with your Pryor Cashman attorney before authorizing international travel.

Pryor Cashman's Immigration Group is closely monitoring the implementation of this decision and is available to assist employers in evaluating its impact on their workforce and pending immigration matters. If you have questions about how this new BIA decision affects your employees' pending or planned travel, please contact your Pryor Cashman attorney.

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Associate Meghan Lenahan was a contributing author to this client alert.