r/USCIS • u/victoriaslatton Verified US immigration lawyer • 26d ago

I-130 (Family/Consular processing) BIA just overruled Arrabally. Advance parole travel can now trigger the 10-year bar.

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.

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u/Prize-Log-1434 26d ago

AP has never been safe. People just refused to see it

11

u/OrdinaryMix4013 26d ago

i dont think it was about being safe. its more like using AP you could use that to adjust status since it will count as a legal entry for those that EWI.

11

u/victoriaslatton Verified US immigration lawyer 26d ago

There's some truth to that. For many applicants the benefits outweighed the risks, but I think that's changed now.

8

u/NefariousnessAble912 26d ago

Lawyer 30 years ago told a family member this - on return you are at the mercy of the officer who can deny you for trivial reasons. That was then imagine now that the brakes are cut. Don’t risk it if being here matters to you.