A new Board of Immigration Appeals ruling has changed a long-standing interpretation of advance parole, potentially putting some immigrants at risk of three- or 10-year US re-entry bars if they leave the country after accruing more than 180 days of unlawful presence.
The decision, issued August 13 in Matter of Delcarmen-Lara, overturns a 2012 BIA precedent that had allowed certain foreign nationals with unlawful presence to travel internationally on advance parole without triggering the unlawful presence bars.
What changed under the new BIA ruling?
Advance parole is a travel authorization that can allow certain people with pending immigration applications or specific immigration protections to leave the United States and seek permission to return while their cases remain pending.
For more than a decade, the BIA's 2012 decision in Matter of Arrabally and Yerrabelly held that travel using advance parole did not constitute a “departure” for purposes of the three- and 10-year unlawful presence bars.
The new ruling reverses that interpretation.
{{/usCountry}}The new ruling reverses that interpretation.
{{/usCountry}}Under Matter of Delcarmen-Lara, leaving the United States on advance parole can now count as a departure if the traveler had already accumulated more than 180 days of unlawful presence.
That means a qualifying departure can trigger a three-year bar for someone with more than 180 days but less than one year of unlawful presence. If the person accumulated at least one year of unlawful presence, the bar can extend to 10 years.
The ruling does not mean every person traveling on advance parole will automatically face a ban. The key issue is whether the individual had accumulated the required period of unlawful presence before leaving the United States.
Who could be affected?
The change could have significant implications for people who have used or planned to use advance parole while pursuing adjustment of status or other immigration benefits.
According to Fragomen, the ruling could affect foreign nationals with more than 180 days of unlawful presence who hold or are eligible for advance parole based on a pending adjustment-of-status or asylum application, approved DACA or a grant of Temporary Protected Status.
The impact could be particularly important for people who previously viewed advance parole as a way to travel internationally without activating the unlawful presence bars.
For example, someone who accumulated more than a year of unlawful presence and subsequently obtained advance parole could now face a 10-year inadmissibility bar after leaving the United States under the new interpretation.
A waiver may be available in some circumstances, but eligibility depends on the individual's immigration history and circumstances.
The ruling is prospective, not retroactive
The BIA said the new interpretation applies prospectively. Travel on advance parole that occurred before the August 13 decision will not be treated as having triggered the unlawful presence bars under the new rule.
Going forward, however, international travel on advance parole can have significantly different consequences for people with qualifying periods of unlawful presence.
The distinction is important for immigrants who have previously traveled using advance parole and those who are considering doing so now.
What this means for DACA, TPS, green-card applicants
The ruling could affect several groups that have historically relied on advance parole for international travel.
DACA recipients, for instance, may use advance parole for certain qualifying travel. TPS beneficiaries and people with pending adjustment-of-status or asylum applications can also potentially receive advance parole depending on their circumstances.
The new BIA interpretation does not eliminate advance parole as a travel document. Instead, it changes the immigration consequences of leaving the country for people who have accumulated sufficient unlawful presence.
For those pursuing adjustment of status, triggering an unlawful presence bar could create a major obstacle because admissibility is generally part of the green-card process.
The BIA's decision also underscores that advance parole does not itself erase an individual's previous unlawful presence.
Why the ruling matters now
The decision overturns a rule that had been in place since 2012, making it a significant development for US immigration cases involving unlawful presence and international travel.
People with complex immigration histories may face different consequences depending on how long they were unlawfully present, how they entered the United States, what application they have pending and whether any statutory exception or waiver applies.