What Changed

For over a decade, practitioners and applicants relied on Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which held that leaving the U.S. temporarily under a grant of advance parole was not a "departure" that triggers the 3-year/10-year unlawful presence bars under INA § 212(a)(9)(B)(i)(II). This allowed many applicants with pending adjustment of status applications, including DACA recipients and others who had accrued unlawful presence, to travel abroad on advance parole without jeopardizing their eligibility to adjust status.

In Delcarmen-Lara, the Board expressly overruled Arrabally and Yerrabelly. Relying on the plain statutory language, the Board held that a departure pursuant to a grant of advance parole is a "departure" within the meaning of INA § 212(a)(9)(B)(i)(II), meaning it can trigger the unlawful presence inadmissibility bar for individuals who accrued more than 180 days (3-year bar) or one year or more (10-year bar) of unlawful presence before departing.

Is This Retroactive?

No. The Board applied this new rule prospectively only, after weighing the standard retroactivity factors (reliance on the old rule, the abruptness of the change, and the burden a retroactive rule would impose). The Board did not decide whether the respondent in this specific case was rendered inadmissible by her prior travel, since her case predated the new rule.

Exactly what "prospective" means in practice is not yet fully settled. How USCIS, DHS, and the immigration courts will apply the cutoff, including for advance parole travel that has already occurred or travel that occurs before formal implementing guidance is issued, remains to be clarified. We expect that USCIS and/or EOIR will release further guidance on implementation in the coming weeks and months, and we are monitoring closely for updates.

Why This Matters

This decision has immediate implications for:

• Individuals with pending or future adjustment of status applications who accrued unlawful presence and are considering (or have already taken) trips abroad on advance parole, including many DACA recipients

• Family-based and employment-based adjustment applicants who relied on advance parole as a workaround for unlawful presence bars

• Anyone advised in the past that advance parole travel was "safe" under the old rule

What You Should Do

If you have accrued unlawful presence in the U.S. and are considering travel on advance parole, or if you have already traveled on advance parole and have a pending adjustment application, do not make assumptions based on the old rule. Speak with your attorney before any future travel, and if you have already traveled, let us review your case in light of this decision. As noted above, more guidance on how this rule will be applied is expected, and we will update this alert as that guidance becomes available.

This alert is for general informational purposes and does not constitute legal advice. Every case is fact specific. Please contact our office to discuss how this decision may affect your individual situation.