NAIROBI, Kenya — A new US immigration ruling has changed the way travel on Advance Parole is treated, potentially exposing some immigrants who have accumulated unlawful presence — including some Kenyans living in the United States — to three- or 10-year bars on returning to the country.
The change follows a precedent-setting decision issued on August 13, 2026, by the US Board of Immigration Appeals (BIA) in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026).
The decision overturned the BIA’s 2012 precedent in Matter of Arrabally and Yerrabelly, which had held that a person who temporarily left the US under a grant of Advance Parole did not make a “departure” for purposes of the unlawful-presence bars under US immigration law.
What has changed
Advance Parole is a travel authorisation that allows certain people with pending immigration applications or qualifying immigration circumstances to leave the US and seek permission to return without first obtaining a new immigrant or nonimmigrant visa.
Under the previous Arrabally and Yerrabelly interpretation, travelling abroad using Advance Parole generally did not count as a “departure” for purposes of the three- and 10-year unlawful-presence bars.
The new BIA decision reverses that position.
The board concluded that leaving the US pursuant to Advance Parole constitutes a departure under the relevant provision of the Immigration and Nationality Act.
As a result, some people who leave the country after accumulating sufficient unlawful presence could become inadmissible when they subsequently seek admission to the US.
Under the law, a person who has accumulated more than 180 days but less than one year of qualifying unlawful presence can face a three-year bar after departure, while someone who has accumulated one year or more can face a 10-year bar.
Why Kenyans could be affected
The ruling could have consequences for some Kenyans living in the US who use Advance Parole to travel to Kenya while waiting for immigration applications to be processed.
For example, a Kenyan who previously overstayed a US visa and accumulated enough qualifying unlawful presence before obtaining Advance Parole could now face a substantially different immigration risk if they leave the country.
The issue is particularly significant for people who entered the US without inspection and later sought to adjust their immigration status.
Some immigrants had previously relied on Advance Parole to travel internationally without triggering the unlawful-presence bars because of the protection established by the 2012 BIA precedent. That protection has now been overturned.
Not everyone using Advance Parole will face a ban
The ruling does not mean every person who travels using Advance Parole will automatically receive a three- or 10-year ban.
The consequences depend on the individual’s immigration history, including whether they accumulated the required period of unlawful presence and whether another statutory exception applies.
The BIA also expressly said its new interpretation would apply prospectively, rather than automatically treating earlier Advance Parole departures under the new rule.
That distinction is important for immigrants who have travelled using Advance Parole before the August 13 decision.
Advance Parole is not the same as guaranteed admission
The new ruling also highlights an important distinction that immigrants should understand: having Advance Parole does not necessarily guarantee admission to the US.
Advance Parole allows an individual to seek parole back into the country, but admission remains subject to inspection and applicable immigration law.
The new BIA interpretation means that, for people with sufficient qualifying unlawful presence, the departure itself can now have consequences for future admissibility.
A major change for pending immigration cases
The decision effectively removes a protection that had been relied upon for more than a decade.
The 2012 Arrabally and Yerrabelly ruling had provided an important exception for certain immigrants travelling temporarily under Advance Parole. The new Delcarmen-Lara decision now treats such travel as a departure for purposes of the unlawful-presence provision.
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Immigration lawyers and advocates are therefore warning affected immigrants to consider their individual circumstances before travelling internationally.
The issue can be particularly complicated for people with pending adjustment-of-status applications, previous periods of unlawful presence, entries without inspection, removal proceedings or other immigration complications.
What affected Kenyans should do
Kenyans in the US who have accumulated unlawful presence and are considering travelling on Advance Parole should not assume that having the travel document makes the trip safe.
They should have their individual immigration history reviewed by a qualified US immigration attorney before leaving the country.
That assessment should establish how much qualifying unlawful presence was accumulated, how the person entered the US, what application is pending and whether any exception or waiver could apply.
The ruling is new, and its practical consequences will likely continue to be tested as immigration authorities and courts apply it.
For thousands of immigrants who had regarded Advance Parole as a relatively safe mechanism for temporary international travel, the decision represents a significant change in the legal landscape.
The key message for Kenyan immigrants is therefore simple: having Advance Parole is no longer, by itself, a reason to assume that leaving the US will not trigger an unlawful-presence bar.
