The Board of Immigration Appeals (BIA) found on August 13, 2026 that a departure from the United States pursuant to a grant of advance parole is a “departure” and Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) is now overruled.
This means, that for immigrants who entered the United States illegally and then who wanted to leave the U.S. to “fix” their illegal entry now can trigger the 3-year and 10-year unlawful presence bars. To trigger a 3-year unlawful presence bar, the intending immigrant has to have accrued more than 180 days of unlawful status, and to trigger the 10-year unlawful presence bar, the intending immigrant needs to have acquired at least 1 year of unlawful presence. Don’t forget that multiple illegal entries into the U.S. can trigger a 10-year bar on re-entry already.
The BIA though just overruled Matter of Arrabally and Yerrabelly which is law from 2012 that held that an alien who leaves the U.S. temporarily pursuant to a grant of “advance parole” does not make a “departure from the U.S.” The BIA clarifies that “departure” now does not include any exceptions for aliens who leave the U.S. temporarily under a grant of advance parole.
How can the BIA do that? Well it’s able to change the law since it’s a court that is an administrative agency, meaning, it’s not an independent court. It can re-interpret the law and it just did that here.
The INA provides that an alien who “has been unlawfully present in the U.S. for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible. (citing INA Section 212, 8 USC Section 1182(a)(9)(B)(i)(II).
In Matter of Arrabally and Yerrabelly, 25 I&N Dec. at 779, the BIA held in a split decision that an alien who temporarily leaves the United States pursuant to a grant of advance parole does not make a “departure” under section 212(a)(9)(B)(i)(II) of the INA, 8 U.S.C. § 1182(a)(9)(B)(i)(II). The BIA reasoned that an alien’s departure under a grant of advance parole is “qualitatively different from other departures, because it presupposes both that he [or she] will be permitted to return to the United States thereafter and that he [or she] will, upon return, continue to pursue the adjustment of status application he [or she] filed before departing.”
The BIA reaffirmed the holding in Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) (“Lemus I”), holding that an alien is inadmissible under section 212(a)(9)(B)(i)(II) of the INA, 8 U.S.C. § 1182(a)(2)(B)(i)(II), even if the alien’s departure was not made pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings.
In short, for individuals who entered the United States unlawfully and later marry a U.S. citizen, Advance Parole is no longer the reliable path to adjustment of status it once was. Under this decision, foreign nationals who accrued unlawful presence and entered without inspection should instead expect to pursue consular processing. In doing so, they must be prepared to demonstrate that their unlawful presence did not exceed 180 days; exceeding that threshold triggers a three-year bar, and unlawful presence of one year or more triggers a ten-year bar. The takeaway is clear: unlawful entry carries increasingly severe and lasting consequences under current immigration law, and the exceptions that once offered relief are steadily narrowing.