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For more than a decade, people applying for green cards within the United States were permitted to travel outside the US without automatically triggering the dreaded three- and ten-year bars. That protection enshrined within caselaw was recently thrown out on August 13, 2026. In a precedential decision called Matter of Milagro Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the Board of Immigration Appeals overruled the 2012 case that had established that protection and held that departing the United States on advance parole now constitutes a legal "departure" for purposes of the unlawful presence bars under federal immigration law.
For families in New Jersey who are in the middle of the green card process, have a pending I-485, or are holding advance parole documents and considering travel, this decision demands immediate attention. The consequences of departing the United States without understanding this ruling can be severe and result in a denial of an adjustment of status due to inadmissibility.
Advance parole is a travel document, filed on Form I-131, that allows certain individuals with pending immigration applications to leave the United States temporarily and be authorized to return, without abandoning their pending case. For adjustment of status applicants, this document has traditionally served as the mechanism for any international travel while the I-485 is pending. Without it, departing the United States while an I-485 is pending generally results in the application being considered abandoned.
A sizeable contingent of people that have relied on advance parole consists of individuals who have some history of “unlawful presence” in the United States, which begins when a person overstays his/her authorized period of stay. For example, if a person is admitted on a tourist visa for six months, the unlawful presence clock begins the day after the 6-month period designed on the I-94 has expired. If that person accumulates 180 days or more of unlawful presence and then leaves the United States, the issue is whether the unlawful presence bar has been triggered. Under the old rule, leaving the US on advance parole was treated favorably: it was not considered a "departure" that triggered those bars, allowing these applicants to travel and return without jeopardizing their adjustment case. This protection no longer exists under the Board’s re-interpretation of departure.
The Board in Delcarmen-Lara rejected that reasoning entirely. Looking at the plain statutory text of INA Section 212(a)(9)(B)(i)(II), the Board concluded that the word "departure" means exactly what it says — leaving the United States — and that nothing in the statute creates an exception for departures taken pursuant to a grant of advance parole. The Board noted that Congress had specifically carved out exceptions to the unlawful presence bars for certain categories of applicants under other statutes, and that Congress's silence on advance parole departures indicated no such exception was intended.
The holding is straightforward and unambiguous: as of August 13, 2026, departing the United States pursuant to a grant of advance parole is a departure for purposes of the unlawful presence bars. If you have accrued more than 180 days of unlawful presence and you depart, even on a validly issued advance parole document, you will be deemed to trigger the three-year bar. If you have accrued more than one year of unlawful presence and you depart, you will trigger the ten-year bar. In either case, you will become inadmissible when you attempt to return, and your adjustment of status application faces the prospect of denial on that basis.
The most important threshold question is whether you have accrued unlawful presence. If you have always maintained lawful immigration status, ie., through a valid visa, H-1B status, student status, or another authorized basis — and have never overstayed or been out of status, Delcarmen-Lara does not change your risk calculus in a material way. Advance parole travel for applicants with a clean status history does not implicate the unlawful presence bars regardless of this decision.
Besides people who have overstayed their visas, individuals who have received Deferred Action for Childhood Arrivals (“DACA”) status protection should pay particular attention, especially those who are intending on using their advance parole grants and planning on filing for status in the future. The advance parole may technically qualify someone who is ineligible for adjustment to be eligible for adjustment under “parole” but now serve as a poison pill, rendering the applicant inadmissible under the unlawful presence ground if the requisite unlawful presence has accrued.
Very significantly, the Board applied its new rule prospectively, not retroactively. This is a meaningful protection for a large number of people, and it is important to understand exactly how it works.
If you traveled outside the United States on advance parole and returned before August 13, 2026, your trip will likely be evaluated under the old Arrabally rule. It does not retroactively become a disqualifying departure. Trips completed before the decision date are presumably protected by the prior interpretation, regardless of when your I-485 was filed or when USCIS decides your case—although this remains to be seen in actual practice.
According to what we know, the operative date is the date of departure, not the date you filed your advance parole application, not the date your advance parole was approved, and not the date your I-485 was filed. If you departed on or after August 13, 2026, the new rule applies to your trip.
This also means that applicants who currently hold approved advance parole documents but have not yet traveled are fully subject to the new rule. An advance parole document issued prior to this decision does not insulate you from Delcarmen-Lara. The risk attaches the moment you use it to depart.
Some applicants in this situation may be eligible for a waiver of the unlawful presence bar under INA Section 212(a)(9)(B)(v), filed on Form I-601. Understanding this option is important, but understanding its limitations is critical because it is not a reliable fallback for most people.
To qualify for the waiver, an applicant must demonstrate that denial of admission would result in extreme hardship to a qualifying relative. The qualifying relatives for this waiver are limited to a U.S. citizen or lawful permanent resident spouse or parent. An adult U.S. citizen child does not qualify a parent for this waiver. U.S. citizen siblings do not qualify. The standard of extreme hardship is a rigorously high one and courts and the BIA have consistently held that ordinary hardship from family separation does not meet the threshold, and that the hardship must be beyond what would normally be expected from a family being separated.
Additionally, the I-601 waiver is discretionary. Even if you meet the extreme hardship standard, USCIS is not required to grant it. Approval rates vary, processing times are significant, and a denial leaves the applicant in a profoundly precarious situation especially if one is already out of status.
New Jersey has one of the most diverse immigrant populations in the country, and Middlesex County, in particular, has large communities of individuals who fit the profile most affected by this decision: people who have been here for years out of status, but built families and careers, and are in the process of obtaining permanent legal status through family-based adjustment of status.
If you have a pending I-485 and have been considering traveling abroad, whether to visit family in another country, attend a family event, or handle any personal matter, it is strongly advised to consult with an immigration attorney prior to any scheduled trip. A trip, no matter how brief, that was safe last month may trigger a ten-year bar today.
If you have already traveled and returned on advance parole after August 13, 2026, and you have a history of unlawful presence, contact an immigration attorney as soon as possible. Your situation needs to be assessed promptly, before USCIS adjudicates your I-485, to understand what options remain available and whether a waiver application is appropriate.
For any and all immigration issues, especially those with complications, call our office to schedule an appointment so an experienced attorney can help you assess the issues and how to potentially overcome them.