Decisions · 29 I&N Dec. 830 (BIA 2026)

Matter of Delcarmen-Lara

Since August 13, 2026, leaving the United States on advance parole counts as a departure for the unlawful-presence bars. Matter of Delcarmen-Lara overruled Matter of Arrabally and Yerrabelly. If you have more than 180 days of unlawful presence, a trip can now trigger a 3- or 10-year bar. Trips before that date were not decided here. Get advice before you travel.

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General information, not legal advice. See the notice at the end of this page.

What changed for people with advance parole?

Since 2012, people with long unlawful presence could often leave on advance parole, return and apply for a green card, because that trip was not a departure under the unlawful-presence bar. The Board of Immigration Appeals ended that on August 13, 2026, in 29 I&N Dec. 830, reading departure by its plain meaning: to go away. The holding addresses the 10-year bar, but USCIS says a departure with an Advance Parole Document now counts under § 212(a)(9)(B)(i) as a whole, which includes the 3-year bar. The rule is harsh by its terms: the document lets you ask to return; it does not protect you from inadmissibility. USCIS now warns about this on its Form I-131 page. Next step: cancel or postpone non-urgent travel until a lawyer has counted your unlawful presence.

I traveled before August 13, 2026. Am I safe?

Probably, but the decision does not say so outright. The Board wrote that it will apply the new holding prospectively, and it declined to decide whether the respondent's own 2024 trip was a departure. USCIS says the rule applies as of August 13, 2026. An Immigrant Legal Resource Center advisory dated September 1, 2026, reads this to mean earlier trips should not trigger the bars, and it reports approvals for former DACA recipients who traveled and returned earlier. That is a reasonable reading, not a promise. If you left before that date but returned after it, or are still abroad, your risk is higher: ILRC says the decision should not apply, but you may have to argue it. Next step: keep your advance parole document, the parole stamp and any travel record showing the date, and give copies to the lawyer filing your Form I-485.

How do I know whether a trip would trigger a bar?

Count unlawful presence first. More than 180 days but less than 1 year leads to the 3-year bar; 1 year or more leads to the 10-year bar. Time under age 18 does not count. Time while a bona fide asylum application is pending generally does not count either, unless you worked without authorization. Other exceptions exist: the ILRC advisory lists a pending adjustment application, among others, and notes that people in deferred action do not accrue unlawful presence while they hold it. Some DACA recipients may therefore have too little unlawful presence to trigger any bar. Do this from documents, not memory: your I-94, every extension, approval notices, and your 18th birthday. A return is not assured either, because the officer at the port of entry makes a separate parole decision. Next step: have a lawyer write out your count before you buy a ticket.

I left after August 13, 2026, or I must travel. What are my options?

If the bar applies, there are two main routes. The first is a waiver on Form I-601, with a general fee of $1,050. It requires extreme hardship to a U.S. citizen or permanent resident spouse or parent; hardship to your children alone does not qualify, and a court cannot review the decision. Certain categories, listed on the form page, may request a fee waiver. Form I-601A, $795, is a separate provisional waiver for people going abroad for a visa interview. The second route is waiting out the bar. Under current USCIS policy and Matter of Duarte-Gonzalez, the 3 or 10 years run from departure even if you are back in the United States, so long as that policy stays in place. Next step: if an emergency forces travel, get a written risk assessment first. If you are already back, do not file Form I-485 until the bar has been analyzed.

I have a removal order or a court case. Does this affect me differently?

Yes, and the risks are larger. The 3-year bar reaches only someone who left before removal proceedings began, but the 10-year bar applies whether you leave before, during or after them. The respondent lost for a separate reason: her second motion came more than 16 years after her final order. The general limit is one motion to reopen within 90 days. Do not leave while a case is open: under 8 C.F.R. § 245.2(a)(4)(ii), departure by a person in removal proceedings is treated as abandoning an adjustment application. With a final order, USCIS's DACA FAQs, as the ILRC advisory describes them, warn that someone who leaves would be considered removed. Next step: find your status with our court hearing guide; if you were ordered removed for missing court, read the in absentia order guide. Then see our family immigration page before you rely on any trip in a filing.

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Frequently asked questions

Can I travel on advance parole if I have unlawful presence?

Traveling on advance parole with unlawful presence is now risky. Since August 13, 2026, under Matter of Delcarmen-Lara, leaving on advance parole counts as a departure, so more than 180 days of unlawful presence can trigger a 3- or 10-year bar. Postpone non-urgent travel until a lawyer has counted your unlawful presence from your documents.

Can DACA recipients still travel on advance parole?

DACA recipients should postpone non-urgent advance parole travel until a lawyer has counted their unlawful presence. Since August 13, 2026, advance parole travel counts as a departure. The ILRC advisory notes that people in deferred action do not accrue unlawful presence while they hold it, so some may have too little to trigger a bar. With a final order, USCIS's DACA FAQs warn, as ILRC describes them, that someone who leaves would be considered removed.

Does unlawful presence count while my asylum application is pending?

Generally no. For the 3- and 10-year bars, time while a bona fide asylum application is pending generally does not count as unlawful presence, unless you worked without authorization. Time under age 18 does not count either. Have a lawyer count your time from documents such as your I-94 and approval notices before you travel.

Is Matter of Arrabally still good law?

No. The Board of Immigration Appeals overruled Matter of Arrabally and Yerrabelly on August 13, 2026, in Matter of Delcarmen-Lara, 29 I&N Dec. 830. Since 2012, an advance parole trip had not been treated as a departure under the unlawful-presence bar. The Board now reads departure by its plain meaning: to go away.

Can hardship to my U.S. citizen children waive the unlawful presence bar?

No, hardship to your children alone does not qualify for the Form I-601 waiver of the unlawful-presence bar. The waiver requires extreme hardship to a U.S. citizen or permanent resident spouse or parent. The general fee is $1,050, certain categories may request a fee waiver, and a court cannot review the decision.

Does the 10-year bar keep running if I come back to the United States?

Yes, for now. Under current USCIS policy and Matter of Duarte-Gonzalez, the 3 or 10 years run from departure even if you are back in the United States, so long as that policy stays in place. If you are already back, do not file Form I-485 until the bar has been analyzed.

What is Matter of Delcarmen-Lara?

Since August 13, 2026, leaving the United States on advance parole counts as a departure for the unlawful-presence bars. Matter of Delcarmen-Lara overruled Matter of Arrabally and Yerrabelly. If you have more than 180 days of unlawful presence, a trip can now trigger a 3- or 10-year bar. Trips before that date were not decided here. Get advice before you travel.

What should I check before relying on this information?

Yes, and the risks are larger. The 3-year bar reaches only someone who left before removal proceedings began, but the 10-year bar applies whether you leave before, during or after them. The respondent lost for a separate reason: her second motion came more than 16 years after her final order. The general limit is one [[motion-to-reopen|motion to reopen]] within 90 days. Do not leave while a case is open: under 8 C.F.R. § 245.2(a)(4)(ii), departure by a person in removal proceedings is treated as abandoning an adjustment application. With a final order, USCIS's DACA FAQs, as the ILRC advisory describes them, warn that someone who leaves would be considered removed. Next step: find your status with our [[find-immigration-court-hearing|court hearing guide]]; if you were ordered removed for missing court, read the [[in-absentia-removal-order|in absentia order guide]]. Then see our [[/services/family|family immigration page]] before you rely on any trip in a filing.

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