DACA and Advance Parole: Travel Can Now Trigger the Unlawful Presence Bars

On August 13, 2026, the Board of Immigration Appeals issued Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), overruling more than a decade of precedent on what counts as a departure from the United States for purposes of the unlawful presence bars. The decision has direct consequences for DACA recipients and others who travel abroad using advance parole while pursuing adjustment of status.

Under INA 212(a)(9)(B)(i)(II), a person who has accrued more than one year of unlawful presence and then departs the United States is inadmissible for ten years upon seeking readmission. A person who accrued more than 180 days but less than one year faces a three year bar. Since 2012, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), held that a temporary departure under a grant of advance parole did not count as a departure for purposes of this provision, reasoning that such a departure presupposed the person would return and continue pursuing an already filed adjustment application. That protection let advance parole holders, including many DACA recipients, travel abroad without triggering the bar. Examining the statutory text and legislative history, the Board found no basis for exempting advance parole travel from the ordinary meaning of departure, noted that Congress created explicit inadmissibility waivers in other contexts when it intended aliens to be able to adjust despite a departure, and pointed to provisions elsewhere in the INA where Congress carved out advance parole travel when it meant to. Arrabally and Yerrabelly is expressly overruled.

Who this affects

This bears on anyone who has accrued 180 days or more of unlawful presence in the United States and is considering, or has already used, advance parole to travel abroad while an adjustment of status application is pending. This includes DACA recipients, but is not limited to them. Whether a given person actually accrued 180 days or a year of unlawful presence, and whether any of that time was neutralized by a period of deferred action or another exception, requires its own analysis. Unlawful presence generally does not accrue during a period covered by deferred action, including DACA, under longstanding USCIS policy. That analysis has to be done before any conclusion is reached about whether a trip under advance parole carries real exposure.

The ruling is prospective

Because the Board was overruling longstanding precedent, it applied the five factor retroactivity test from Matter of Cordero-Garcia, weighing whether the case was one of first impression, whether the new rule marks an abrupt departure from established practice, the extent of reliance on the old rule, the burden retroactive application would impose, and the government's interest in applying the new rule regardless. It concluded the new rule applies prospectively only, to advance parole departures on or after August 13, 2026. Advance parole travel completed before that date remains governed by the prior Arrabally rule and should not be treated as having triggered a bar on its own.

For any advance parole travel on or after August 13, 2026, that protection is gone. A person with accrued unlawful presence who has not had that time neutralized by deferred action or another exception can no longer assume that traveling under advance parole is risk free. Returning from that trip can mean walking back into a three or ten year bar that did not exist under the old rule.

Do not make this determination without an attorney

This calculation involves multiple overlapping periods and exceptions, including prior periods of unlawful presence, any time covered by deferred action, and the timing of the departure itself. Getting it wrong before travel can mean returning to find that the trip itself created a bar that was not there beforehand. Anyone with a pending adjustment application who is considering travel under advance parole, or who has already traveled under advance parole and is unsure how this decision affects their case, should have their timeline reviewed by an attorney before making any assumptions. Contact the Immigration Law Office of Theodore Huang before booking any advance parole travel, and before relying on a prior trip as risk free under the old rule.

This post is provided for general informational purposes and does not constitute legal advice. Individual circumstances vary, and anyone affected by this rule should speak with an immigration attorney about their specific case.