WARNING: Do not depart the United States with an Advance Parole Travel Document
**If you depart with an advance parole travel document, there is a risk you will not be readmitted to the United States upon entry
On August 13, 2026, the Board of Immigration Appeals issued the decision Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), which holds that a departure with an advance parole can trigger the unlawful presence bar at INA §212(a)(9)(B)(i)(I) –(II). This case overruled the case of Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which held that a departure would not trigger the unlawful presence bar; in other words, the government could not “bait and switch” a person by issuing a travel document for departure and re-entry, then use the departure to refuse admission or impose other adverse immigration consequences.
Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026) is a complete departure from previous existing law that permitted persons with advance parole travel documents to safely re enter the United States. If you hold an advance parole travel document, do not depart the United States and attempt re-entry without consulting an attorney.
I departed the United States and re-entered with an advance parole travel document before August 13, 2026. Does Matter of Delcarmen-Lara impact me?
No. The case explicitly states that it only applies prospectively, which means it only impacts people who attempt re-entry after August 13, 2026.
What is the unlawful presence bar?
The unlawful presence bar, found at INA §212(a)(9)(B)(i)(I)-(II) states that if a person accrues unlawful presence in the United States of more than six months, then departs the United States, he is inadmissible for a period of 3 years, and if he accrues more than one (1) year of unlawful presence, then departs the United States, he is inadmissible for ten (10) years. This is commonly referred to as the 3- and 10-year bar. The bar is triggered by the departure. If you enter the United States once and never depart, you never trigger the unlawful presence bar.
How does one accrue unlawful presence?
One accrues unlawful presence, generally, by being physically present in the United States without a lawful non-immigrant status or permanent resident status. For example, if one enters as a visitor, with permission to stay for six months, on the first day of the seventh month, one begins to accrue unlawful presence. Anyone who entered without inspection (EWI) through the southern or norther border began accruing unlawful presence the day they entered
There are several exceptions to the general rule of what constitutes unlawful presence, some of which include: minors (persons under the age of eighteen (18)), who do not accrue unlawful presence), the filing of a bona fide affirmative asylum application with USCIS (not a defensive asylum application in removal proceedings), filing an adjustment of status application with USCIS, or acquiring Temporary Protective Status (“TPS”) but only during the validity period of TPS.
One should not rely on any of the above exceptions as a basis to seek readmission to the United States with an advance parole travel document. Although some of these exceptions have the force of statutory authority at INA §212(a)(9)(B)(iii), leaving that decision to a CBP officer in secondary inspection where one has no right to counsel carries the risk of being carted off to an ICE detention or excluded entirely from the United States. Some of the exceptions are conferred by a USCIS Policy Memo of May 9, 2009, or the Foreign Affairs Manual (9 FAM 302.11-3(B)(1)(U)), both of which can be whisked away without notice and comment.
I have a valid non-immigrant visa and an advance parole travel document. Can I just depart and re-enter on my non-immigrant visa?
This might be possible if you have an H-1B or an L-1 visa because those non-immigrant statuses permit dual intent. You should not travel on any other non-immigrant visas if you have an advance parole travel document because re-entry will probably cancel your non-immigrant status (example: F-1 students).
I maintained a lawful non-immigrant status up until the time I filed an adjustment of status, then let my non-immigrant status lapse. Aren’t I safe to travel and re-enter because the filing of an adjustment of status placed me in a period of authorized stay that continues until a decision is made?
No. A period of authorized stay is not explicitly defined in federal statute and has to date relied upon agency interpretation, policy and the Dept. of State Foreign Affairs Manual (FAM).
Example: You held a lawful non-immigrant H-1B status, filed an adjustment of status application and did not renew H-1B status after filing. Your H-1B status expired six months ago, and you want to depart then seek re-entry on an advance parole travel document. Will you be readmitted?
One would hope. And we don’t rely upon hopefulness, especially when our current government has already demonstrated a willingness to arrest people in very similar situations and haul them off to ICE detention – similar being: someone with an expired non-immigrant status with a pending adjustment of status application.
Does this decision impact refugee travel documents or re-entry permits of lawful permanent residents?
No, it does not.
