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New BIA Decision Impacts Those with Unlawful Presence

August 18, 2026

If you have an approved advance parole document and you have spent time in the United States without status, talk to an immigration attorney before you book a flight. A rule that protected travelers for fourteen years was eliminated on August 13, 2026.

On August 13, the Board of Immigration Appeals (BIA) issued Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026). The decision overrules a 2012 precedent that immigration lawyers have relied on ever since to help clients travel abroad and return without derailing their green card cases. USCIS has already posted alerts on its “advance parole” and “unlawful presence” pages confirming the change.

No change – unless you have accrued “unlawful presence”

Before we clarify the rule change, it’s important to note that the ruling only impacts those who have accrued “unlawful presence”. Unlawful presence is a narrower, more technical concept than “time spent in the U.S. without status”:

• Unlawful presence does not accrue before age 18. Someone brought here as a child does not begin accumulating it until their eighteenth birthday.
• It does not accrue while a person holds deferred action, including DACA. USCIS has long confirmed this.
• Certain other periods — some pending asylum applications, some periods with pending applications — may also be excluded.

Foreign nationals who have not accrued any unlawful presence are not impacted, meaning that if they have valid Advance Parole travel documents, they can continue to use them as before. However, if you are uncertain whether or not you have ever accrued unlawful presence, it is important that you speak with an immigration attorney.

Advance parole

Advance parole is a travel document that eligible applicants can obtain from USCIS by filing Form I-131. It lets certain people who are in the U.S. — DACA recipients, TPS holders, people with a pending green card application — leave the country and ask to be let back in, without abandoning the application they left behind. Some people with Advance Parole also have valid U.S. visas that could provide re-entry authorization after foreign travel, but for many, Advance Parole is their only option for returning after international travel.

The old rule

The complication is a pair of penalties Congress created in 1996, commonly called the three- and ten-year bars. In simplified terms:

• More than 180 days but less than one year of “unlawful presence,” followed by a departure from the U.S. → barred from returning for three years.
• One year or more of unlawful presence, followed by a departure → barred for ten years.

The new ruling hinges on the meaning of the word departure.

In 2012, the BIA held that leaving on advance parole was not a “departure” for these purposes. The reasoning was practical. The government itself authorizes the trip in advance, expecting the person to come back and keep pursuing a benefit. That, the Board said, is qualitatively different from simply leaving. That holding is now gone.

The new rule

In the new decision, the Board took a plain-language approach. “Depart,” it noted, means to go away or leave. Congress never wrote an advance-parole exception into the statute, and when Congress has wanted to carve out advance parole elsewhere in the immigration laws, it has done so explicitly. Because it did not do so here, the Board concluded it had no authority to read one in. The practical effect is that a trip abroad on advance parole can now trigger the unlawful presence bar. A person can hold a valid, government-issued travel document, use it exactly as instructed, and still be inadmissible when they return.

An important limit: the decision is prospective

Because the ruling was an abrupt break from long-settled practice, and because people had reasonably relied on the old rule, the BIA will not apply the decision retroactively. In other words, if you departed on advance parole and returned before August 13, 2026, your trip should be evaluated under the old rule. That said, questions remain about exactly how the rule will be implemented, so if you have travelled abroad on Advance Parole after accruing unlawful presence, make sure to discuss your situation with an immigration attorney.

More developments expected

A BIA decision binds DHS, but federal courts may weigh in, and several circuits had previously applied the old rule. USCIS implementation guidance is also still pending.

We can help

Our attorneys have been advising clients on advance parole travel for decades, and we are already reviewing affected files. If you hold an advance parole document, have a pending adjustment application, or are simply unsure whether this decision touches your case, contact our office to schedule a consultation before you make travel plans.

TAGS: Advance Parole, BIA, unlawful presence