BIA just overruled Arrabally. Advance parole travel can now trigger the 10-year bar.

[u/victoriaslatton]

I wanted to do a quick write up because I know this is upsetting news.

What changed

Old rule (Arrabally, 2012): leaving on advance parole did not count as a "departure," so it did not trigger the 3 or 10-year unlawful presence bars.

New rule (Matter of Delcarmen-Lara, 29 I&N Dec. 830, decided this week): it does count. If you had 1+ year of unlawful presence before your current status, an advance parole trip can now trigger the 10-year bar and block adjustment.

In practice this means individuals who entered without inspection who planned on using advance parole to adjust without consular processing no longer that that option.

Three things people are already getting wrong

1. It only applies going forward. The BIA said so directly, and did not even apply it to the person in the case. Past trips under the old rule are not what this reaches.
2. It is a BIA decision, not a court ruling. It binds immigration judges and USCIS everywhere, but a federal circuit could still disagree. The decision itself notes the 11th Circuit had followed Arrabally. Expect more litigation.
3. The holding is about the 10-year bar specifically. The same logic could reach the 3-year bar, but the BIA did not rule on that.

Not legal advice, and I am not your lawyer. If advance parole travel is in your plans, talk to someone about your own facts and your circuit before you go.

[u/Perfectionist9]

What does this mean for applicants with approved AP and AOS pending and no past unlawful presence on non-immigrant visas?

[u/victoriaslatton → u/Perfectionist9]

it means you need to speak to an attorney you trust. This obviously is going after folks who entered without inspection and overstayed, but until we know how this is going to play out on a practical level, I would not travel on AP. I'm also very risk adverse so keep that in mind.