If You Are on DACA, Do Not Leave the U.S. on Advance Parole. The Law Just Changed Drastically.

How This Strategy Worked for the Last 14 Years

To adjust status to a green card from inside the United States under INA § 245(a), an applicant generally has to show they were "inspected and admitted or paroled." Someone who entered the country without inspection, which describes a large share of DACA recipients who arrived as children, does not meet that requirement on its face. Advance parole solved this. A DACA recipient granted permission to travel abroad and return, for education, employment, or a humanitarian reason such as a family emergency, is paroled back into the country at the port of entry upon return. That parole satisfies the "inspected and admitted or paroled" requirement, which is why so many DACA recipients used a trip abroad specifically to open the door to marriage-based adjustment of status once they were back.

There was a second, equally important piece to this strategy, and it came from a 2012 case called Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Under INA § 212(a)(9)(B), someone who accrues more than 180 days of unlawful presence in the United States and then departs the country faces a three-year bar to readmission, and someone who accrues a year or more faces a ten-year bar. Many DACA recipients, particularly those who turned 18 before receiving DACA or who had any gap in coverage, had accrued exactly that kind of unlawful presence before their DACA grant. Arrabally held that a departure under an approved advance parole document was not a "departure" within the meaning of that statute, so it did not trigger the bar. That single holding is what made the entire strategy safe: the trip cured the inspection problem for adjustment purposes without exposing the person to a multi-year bar on the way back in.

What Changed on August 13, 2026

The Board of Immigration Appeals decided Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), and expressly overruled Arrabally. The Board held that a trip abroad on advance parole is, in fact, a "departure" for purposes of INA § 212(a)(9)(B)(i)(II), reasoning that Congress wrote explicit advance-parole exceptions into several other sections of the immigration code but wrote no comparable exception into this one, and that the omission should be read as deliberate rather than accidental. The Board acknowledged this produces a harsh outcome for people who did everything by the book, obtained government permission to travel, and relied on it, but concluded that a harsh result is not the same as a legally impermissible one, and that changing this is Congress's call, not the Board's.

There is one piece of real, practical relief in the decision. The Board applied its own retroactivity framework and declined to apply the new rule to trips already completed. Advance parole travel finished before August 13, 2026 remains governed by the old Arrabally rule and is not affected. Advance parole travel taken on or after that date is governed by the new rule. That distinction matters enormously for anyone reading this: the calendar, not just the underlying facts, now determines the outcome.

AILA's president, Jeff Joseph, put the practical stakes plainly in a statement responding to the decision: "This ruling flipflops on 14 years of well-settled law and policy. This decision punishes people for following the rules and jeopardizes people who have well-established lives in the U.S., including Dreamers protected by the Deferred Action for Childhood Arrivals (DACA) program, people with Temporary Protected Status (TPS), and the immediate family of U.S. citizens with pending applications for their green cards. The new decision puts people at risk of being barred from the United States and separated from family for years if they leave and then try to re-enter, even if they have paid for and been granted permission to travel."

What This Actually Means for a DACA Marriage Case Right Now

If a DACA recipient has accrued more than 180 days but less than a year of unlawful presence at some point in their history, typically time spent out of status before receiving DACA, a trip on advance parole taken from this point forward risks a three-year bar to readmission. If that unlawful presence totals a year or more, the risk is a ten-year bar. Either bar, if triggered, generally has to be addressed with a waiver before the person can safely adjust status through marriage, which was exactly the step this entire strategy previously let people skip.

This does not affect every DACA recipient equally, and it is worth being precise about that rather than treating this as a blanket rule. Unlawful presence generally does not accrue for anyone under 18, under INA § 212(a)(9)(B)(iii)(I). Someone who entered as a young child and received DACA before turning 18, without any other status violation afterward, may have accrued little or no unlawful presence at all, and the new decision may not meaningfully change their situation. The people most exposed are those who spent meaningful time out of status as adults before their DACA grant, or who had a lapse in DACA coverage at some point along the way. The only way to know which situation applies is a specific, date-by-date review of that person's immigration history, not a general assumption in either direction.

This Reaches Beyond DACA

DACA recipients are the group I see this affect most often, but they are not the only ones. TPS holders who entered without inspection years before receiving Temporary Protected Status, and who relied on an advance parole trip to secure a lawful entry supporting a later family or employment-based adjustment, face the identical exposure. So do pending Form I-485 applicants generally, DACA or not, who hold advance parole simply to preserve a pending case while traveling and who have more than 180 days of unlawful presence from an earlier visa overstay or status violation somewhere in their history. USCIS can deny an adjustment application on inadmissibility grounds under INA § 212(a)(9)(B) if the bar applies and there is no approved waiver already on file. If you fall into any of these categories and travel is part of your plan, the same case-by-case review applies to you, not just to DACA recipients.

It is also worth understanding briefly where these bars came from, since it explains why the Board felt bound to read the statute this strictly. The three- and ten-year unlawful presence bars were created by Congress in 1996, through the Illegal Immigration Reform and Immigrant Responsibility Act. They have long been criticized, including by members of Congress from both parties, as producing exactly the kind of result seen here: discouraging people who might otherwise come forward and resolve their status honestly. That criticism does not change how the statute currently reads, and the Board was explicit that fixing an unpopular or counterproductive outcome is Congress's job, not an appellate immigration tribunal's.

What Still Works

Anyone who already completed a trip on advance parole and returned before August 13, 2026 remains protected under the old rule for that trip. That travel history should be documented carefully, with exact entry and exit dates preserved, since it may become relevant to future filings.

Staying inside the United States and not traveling does not create any new risk. The bar under INA § 212(a)(9)(B) is triggered by departure, not by simply having a pending case. A pending Form I-485 adjustment application remains valid and active as long as the person stays in the country; there is no reason to withdraw or abandon it because of this decision.

For anyone who is inadmissible under the unlawful presence bar, or who is now facing that risk because of a needed future trip, Form I-601A provisional unlawful presence waiver may still be an option, but it is not automatic. It requires proving extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent, and it takes real time to prepare and adjudicate. What that means practically is that the sequencing of a case, whether a waiver needs to be filed and approved before any travel happens, has become far more important than it was under the old rule, where the trip itself carried no separate inadmissibility risk to plan around.

What to Do If You Are Holding Advance Parole Right Now

Do not book or take a trip on advance parole based on old assumptions or advice you received before August 13, 2026, even if that advice was correct at the time it was given. Get an exact accounting of unlawful presence in your specific case, including precise dates of entry, any status violations, gaps in DACA coverage, and time spent as a minor versus as an adult, before making any travel decision.

Do not withdraw a pending adjustment of status application out of fear. Staying in the country does not jeopardize the case; a poorly timed trip abroad now might.

If a waiver may be needed before it is safe to travel, start that conversation now rather than after a ticket is already booked. These filings take time to prepare properly and are not something to rush once a trip is already planned.

Because this decision reverses 14 years of settled law that a great many people relied on in good faith, expect legal challenges to work their way through the federal courts. Until a circuit court or the Supreme Court says otherwise, though, Matter of Delcarmen-Lara is binding law nationwide, and every current advance parole decision needs to be made under this rule, not in anticipation of it possibly changing back.

If you have DACA, or advance parole, and you are weighing a trip abroad or a marriage-based adjustment of status case, get your exact history reviewed before you make any decision. This is not a situation where a general sense of your own case is good enough anymore.

If you are considering travel on advance parole or have questions about how this decision affects a pending or planned adjustment of status case, contact the Law Offices of Shawn S. Sedaghat at (818) 382-3333 before making any travel arrangements.

This article discusses general legal principles and does not describe any specific client or matter. Nothing here constitutes legal advice or creates an attorney-client relationship. Matter of Delcarmen-Lara was decided August 13, 2026 and is a very recent, actively evolving development; confirm the current state of the law, including any pending appeals, before making any decision based on this article.

Shawn S. Sedaghat is an immigration attorney at Law Offices of Shawn S. Sedaghat focused on deportation defense, immigration appeals, asylum, family-based immigration, and employment-based immigration. He is the firm's founder and principal attorney and has more than 30 years of experience handling U.S. immigration matters.